Upston and Comcare (Compensation) - [2021] AATA 2378

Upston and Comcare (Compensation) [2021] AATA 2378 (19 July 2021)
Division:GENERAL DIVISION
File Number(s):2020/4507
Re:Peter Upston
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:19 July 2021
Place:Canberra

The decision under review is affirmed.
……..………[sgd]………………
Mr S. Webb, Member
WORKERS’ COMPENSATION – knee injury claim – threshold liability – scope of claim – left knee osteoarthritis – alleged historical incidents in previous employment – nature and conditions of previous employment - factual basis of claim – credit – applicable legislation - notice – meaning of ‘injury’ for purposes of ‘notice’ provision - when alleged ailment claimed as an injury first suffered – when applicant became aware of alleged injury – consideration of prejudice and reasonable cause - consideration of ‘injury’ and ‘disease’ provisions – ‘ailment’ – material contribution by nature and conditions of previous employment not established – factual basis of alleged injuries in 1981 and 1986 – significance of missing documents – corroboration – expert opinion - material contribution to ailment – decision
PROCEDURE – objection to expert opinion evidence – opinion in respect of assumed facts – Tribunal not strictly bound by rules of evidence - basis rule not applicable - applicability of opinion rule – assumption of facts distinguished from ambulatory assumption – assessment of relevance - extent to which assumed facts are directed to findings sought – requirement for opinion to be based on specialist knowledge – meaning of specialist knowledge – no breach of procedural fairness - basis of objection not made out – objection overruled
Legislation
Compensation (Commonwealth Government Employees) Act 1971
Evidence Act 1995 (Cth) ss 76, 77 and 79
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A-B, 14, 16, 19, 27, 53, 124
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) ss 41, 42
Cases
Bater v Bater [1950] 2 All ER 458
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Flounders v Millar [2007] NSWCA 238
Frosch v Comcare [2004] FCA 1642
Hart v Commissioner of Taxation (No. 2) [2016] FCA 897
HG v The Queen [1999] HCA 2
Honeysett v The Queen [2014] 29
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139
Neat Holdings Pty. Limited v Karajan Holdings Pty. Limited and Ors [1992] HCA 66
Re Day [2017] HCA 2
Repatriation Commission v Smith [1987] FCA 260
Smith v Comcare [2013] FCAFC 65
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
REASONS FOR DECISION
Mr S. Webb, Member
19 July 2021

Peter Upston claimed compensation for an injury to his left knee that allegedly occurred in 1981 (first claim). Comcare decided to reject the claim by primary determination and on reconsideration. Mr Upston applied for review of the decision by the Tribunal – application 2019/7546.
Mr Upston submitted a further claim, clarifying the injury for which he sought compensation (second claim). The second claim was cast in terms of osteoarthritis in his left knee that he alleges is attributable to the nature and condition of his former employment as an officer in the ACT Police and the Australian Federal Police (AFP) (previous employment) and two left knee injuries he asserts he sustained in the course of that employment. Comcare decided by primary determination and on reconsideration that this claim should also be refused. Mr Upston applied to the Tribunal for review of this decision – application 2020/4507.
Both applications were listed concurrently for hearing.
At hearing, counsel for Mr Upston, Mr Leo Grey, informed the Tribunal that Mr Upston’s second claim (underlying application 2020/4057) was in clarification of the first claim he made without legal assistance. Mr Grey explained that the factual basis of the first claim is pressed even though liability was not pressed against Comcare in respect of the frank physical injury which was the subject of this claim. He conceded that application 2019/7546 could be dispensed with, although he reserved his position with respect to any orders for costs that might arise should Mr Upston obtain a favourable decision in the proceedings. The upshot of this was that Mr Upston gave written notice that application 2019/7546 was withdrawn. His withdrawal brings to an end the proceedings in respect of that application. In order to allow the hearing in application 2020/4057 to proceed on the available documents, I directed that documents filed or produced under summons in application 2019/7546 could, subject to further order, be taken to have been filed or produced in application 2020/4507.
In order to assist understanding of the matters in dispute in this case, it is helpful to set out the terms of the injury set out in Mr Upston’s second compensation claim form –
The Applicant claims compensation for the “disease” of degenerative arthritis in the left knee, contributed to by (a) two injuries suffered by the Applicant in the course of his employment with the Australian Federal Police (“AFP”) on 25.9.81 and 5.12.86, and (b) the nature and conditions of his employment in the ACT Police and the AFP between 1.9.75 and his retirement from service with the AFP
The Applicant initially suffered injury while training for the Rapid Response Team in the course of his employment at Watsonia in Victoria. During a helicopter rappelling training exercise, he landed heavily, injuring his left knee.
Subsequently, the Applicant suffered further injury to his left knee on 5 December 1986 when, whilst arresting an offender in the course of his duties, he fell to the ground striking his left knee.[1]
[1] T26, folio 69.
As can be seen, Mr Upston’s compensation claim is in respect of degenerative left knee arthritis to which it is alleged three factors in his previous employment contributed. Of the three factors, great weight was placed on the alleged incident in 1981. In submissions, Mr Grey conceded that the alleged incident in 1986, alone, may not be sufficient to meet the causal threshold to establish an injury for the purposes of s5A and s 5B of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) or relevant provisions of the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act). The alleged contribution made by the nature and conditions of Mr Upston’s previous employment was not squarely raised, ventilated, addressed or pressed during the hearing.
Fact finding principles
In substantial part, this case turns on factual findings in respect of alleged events many years ago. It is Mr Upston’s case that his evidence of those alleged events, supported by contemporaneous materials and inferences drawn from other evidence, should be accepted as a sufficient basis for positive factual findings. Comcare asserts that Mr Upston’s alleged injury in 1981 did not occur and that the present evidence is not sufficient to make positive factual findings.
It is important to observe that the finding of facts is to be undertaken with applicable principles steadfastly in mind.
Generally in civil proceedings, facts must be established to the civil standard, on the balance of possibilities,[2] where the balance of probabilities test requires reasonable satisfaction in a legal context.[3] Proceedings in the Tribunal have a different character insofar as they involve administrative decision making. The variety of decision making approaches open to the Tribunal and the decision making tools that may be employed in the circumstances of any case, including the principle drawn from Briginshaw v Briginshaw,[4] may not be directly analogous to civil proceedings.[5] Nevertheless, there is no authority for a decision maker under the SRC Act to simply choose between possibilities – reasonable satisfaction in a legal context requires more than conjecture, based on choosing between possibilities, theories or guesses of equal plausibility or likelihood on the ground that one seems more likely or probable than another.[6] More is required. There is “a distinction of substance to be drawn between probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other”.[7] Nonetheless, just as there may be degrees of probability within the civil standard[8] and “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”,[9] the strength of probative material necessary to logically support factual findings in the Tribunal when making the correct or preferable decision on the materials before it will be guided by the nature and the facts of the particular case and the seriousness of any consequences[10] - conclusions carrying grave consequences ought not lightly to be made.[11]
[2] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at 155-156.
[3] Re Day [2017] HCA 2 at [15].
[4] [1938] HCA 34.
[5] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, per Flick and Perry JJ at [61].
[6] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305.
[7] Repatriation Commission v Smith [1987] FCA 260 per Beaumont J with whom Northrop and Spender JJ agreed at [25].
[8] Bater v Bater [1950] 2 All ER 458 at 459.
[9] Neat Holdings Pty. Limited v Karajan Holdings Pty. Limited and Ors [1992] HCA 66 per Mason CJ, Brennan, Deane and Gaudron JJ at [2].
[10] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, per Flick and Perry JJ at [106]-[108] and [111]-[120].
[11] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, per Logan J at [16].
It is important to note that where a fact is asserted, for the Tribunal to make a positive finding about the asserted fact, reasonable satisfaction is required on the balance of probabilities. If that threshold is not reached, no positive finding can be made. In such circumstances, it is not necessary for the Tribunal to apply the threshold negatively and find that the asserted fact did not occur – absence of positive proof does not require positive disproof.
In circumstances where an allegation of fraud or lying has been levelled, impliedly at least, against Mr Upston, the process by which reasonable satisfaction is reached must be approached with the seriousness of the allegation steadfastly in mind, albeit that no greater burden of persuasion weighs on either party. When presiding in the Court of Disputed Returns in Re Day,[12] Gordon J discussed applicable principles that are presently apposite (subject to what I have said about the difference between civil proceedings and proceedings in the Tribunal) as follows -
The ordinary standard of proof required of a party who bears the onus in civil proceedings is proof on the balance of probabilities. This remains so even where the matter to be proved involves allegations of fraud.
However, the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether an issue has been proved to the reasonable satisfaction of the tribunal. Where, as here, fraud is alleged, "reasonable satisfaction" is not produced by inexact proofs, indefinite testimony, or indirect inferences. This does not mean that the standard of persuasion is any higher than the balance of probabilities. It does mean that the nature of the issue necessarily affects the process by which the reasonable satisfaction is reached.
Why? There is a conventional perception that members of society do not ordinarily engage in fraudulent conduct and a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
The nature of the allegation requires, as a matter of common sense, the careful weighing of testimony, the close examination of facts proved as a basis of inference and, on appeal, a comfortable satisfaction that the tribunal reached both a correct and just conclusion.
The tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found. Where direct proof is not available and satisfaction of the civil standard depends on inference, "there must be something more than mere conjecture, guesswork or surmise". – there must be more than "conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture". An inference will be no more than conjecture unless some fact is found which positively suggests, or provides a reason in the circumstances particular to the case, that a specific event happened or a specific state of affairs existed.
[12] at [14]-[18].
An appropriate degree of confidence based on careful examination and reasonable assessment of all the relevant materials is required to make a positive finding – “If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail”.[13]
[13] Flounders v Millar [2007] NSWCA 238 per Ipp JA at [35].
Furthermore, notwithstanding that the Tribunal may inform itself of any matter in any manner it thinks fit and it is not strictly bound to apply the rules of evidence set out in the Evidence Act 1995 (Cth) (Evidence Act), it must decide factual matters on the basis of material that is relevant and logically probative.[14]
[14] Repatriation Commission v Smith [1987] FCA 260 at [23].
Facts
Following a medical examination on 4 August 1975, Mr Upston was employed by ACT Police from on or about 1 September 1975 to 18 October 1979.[15]
[15] Exhibit 6, ST67, folio 227; Exhibit 1, page 1.
In 1978, Mr Upston claimed and was paid compensation in respect of an eye injury.[16]
[16] Exhibit 6, ST89, ST91, ST91.1, ST91.2, ST95 and ST95.1.
From 19 October 1979 to 30 June 1995 he was employed by the AFP.[17]
[17] T17.4, folio 37 and ST414, folio 815.
Between 30 September 1981 and 7 October 1981, a Commonwealth Heads of Government Meeting (CHOGM) occurred in Melbourne.
Prior to this meeting, Mr Upston undertook a Response Team Members Course, R.T.M. 2/81, in Barton in the ACT.[18] A report was produced following completion of this course. The course included a component that related to rappelling from an aircraft and from a building. In the report, the column beside this objective, titled “achieved Yes/No”, was marked “N/A” in Mr Upston’s case.[19] In the “result” section of this report, Mr Upston is reported to have “qualified on all the weapons qualification shoots, but failed the Q.D.R and Final Exam”.[20]
[18] Exhibit 6, ST117 and ST118.
[19] Exhibit 6, ST117, folio 310.
[20] Exhibit 6, ST117, folio 312; ST138, folio 353 refers.
I note that Mr Upston referred to this training and the CHOGM in Melbourne in a document he created on 8 February 1983 –
5. As a result of C.H.O.G.M., I was selected to attend the 6 weeks course at the Police College, Barton. The course included physical training, special weapons training and approx. 4 hours a week concentrated on self defence or martial art. Those members who successfully completed the course were given a certificate and graded (examined) on that form of self defence. Members were then advised to maintain their standard of physical fitness, as they may again be called upon to perform ‘Special Duties’.
6. During the years ’80-’81, I was actively involved in the basketball competition conducted Sunday and Monday nights at the Canberra Show Ground…
7. Shortly after returning from Melbourne (CHOGM), I broke a bone in my hand and was on leave for a period of 5 weeks…
8. It may also be noted that whilst in Melbourne, I sought permission to attend training and was graded and received my next belt (kun)…[21]
[21] ST142, folio 358.
It is Mr Upston’s evidence that he was posted to Melbourne in the lead-up to the CHOGM meeting. Even though there is no direct evidence of this posting in the materials placed before the Tribunal, Comcare accepts that Mr Upston was in Melbourne in September 1981. I accept that is correct.
On 5 September 1981, Mr Upston was recorded as absent from work without a medical certificate due to “stomach pain”.[22]
[22] ST120, folio 319.
On 17 September 1981, Mr Upston obtained a Kup Sim Sa 7^th level grading in Rhee Taekwondo, a martial art he practised from January 1981.[23] He explained that this form of Taekwondo does not involve physical contact. Nevertheless, being right footed, it involved him standing on his left leg and kicking with his right leg and foot. By his own account, he continued to engage in Rhee Taekwondo on a regular weekly basis from 1981, although he was prevented from doing so for a period of 13 months in 1981 and 1983 following a hand injury.
[23] ST142.1, folio 360.
There is a controversy over what Mr Upston alleges to have occurred during his posting to Melbourne, prior to CHOGM. He stated that he was required to undergo training at the Simpson Army Barracks in Watsonia from on or about 25 September 1981 to 29 September 1981, in the course of which he sustained an injury to his left knee when rappelling from a helicopter[24]
[24] Exhibit 1, 1.
On 10 November 1981, Mr Upston was absent from work under a medical certificate as a result of “stomach pain”.[25] From 2 December 1981 to 31 December 1981, Mr Upston was absent from work under a medical certificate as result of a “fractured finger”.[26]
[25] ST120, folio 319.
[26] Ibid.
Mr Upston was absent from work under a medical certificate from 21 to 23 April 1983 as result of a neck strain injury on 17 April 1983,[27] for which he claimed and was paid compensation.[28]
[27] Ibid; ST153.
[28] ST155, ST157 and ST170.
Mr Upston was absent from work from 3 September 1984 to 11 November 1984 and from 26 November 1985 to 6 January 1985 as result of a fractured left humerus.[29] On his return to work, he was placed on light “front office” duties until 30 June 1985.[30]
[29] ST198, ST199 and ST 200.
[30] ST201.
On 5 December 1986, Mr Upston sustained an injury to his left knee while apprehending an offender in the course of his duties. It appears that Mr Upston’s sustained abrasions and bruising to his left knee occured when he and the offender fell to the ground.[31] Mr Upston sought medical treatment and he was certified unfit for work for 3 days by Dr Cook, a general practitioner.[32] Mr Upston claimed and was paid compensation for this injury.[33]
[31] T6 and T7.
[32] T3.
[33] T8 and T9.
On 3 February 1988, Mr Upston claimed and was paid compensation in respect of “acute lower back pains” that occurred “sitting at desk” on 18 January 1988.[34]
[34] ST16, ST276, folio 609. ST285 and ST286.
On 30 November 1990, Dr Pilotto certified that Mr Upston “is in good health, of sound constitution and fit both physically and mentally to perform duties of a SERGEANT”.[35]
[35] ST359, folio 725.
In December 1993, Mr Upston was subject to disciplinary proceedings.[36]
[36] ST387.
On 22 February 1995, Mr Upston was issued a notice of suspension.[37]
[37] ST405, folio 795.
On 30 June 1995, Mr Upston’s AFP employment was terminated under a management initiated involuntary retirement under s 26E(2)(b) of the Australian Federal Police Act 1979.[38]
[38] ST414 and ST419.
Prior to this event, on 23 June 1995, Mr Upston signed an Involuntary Retirement superannuation declaration that he had “retired from the workforce and am therefore eligible to receive my Productivity Component“.[39] When cross-examined on this point, Mr Upston acknowledged that it was incorrect as, at the time and subsequently, he was employed by Lever Coaches as a bus driver.
[39] ST419, folio 834.
In order to engage in employment as a coach driver, Mr Upston was required to maintain a public vehicle commercial driver licence and to undergo periodic medical examinations. Records of these examinations and related declarations by Mr Upston from 11 March 2002 to 13 March 2013 confirm that he did not disclose nor did medical examiners report a left knee injury or left knee joint impairment.[40]
[40] ST19 to ST28 inclusive.

From 1998 to 2001, Mr Upston was employed by the ACT Government Department of Housing.
On 7 May 2002, Mr Upston attended the Emergency Department of The Canberra Hospital complaining of a finger injury as a result of “TaeKwondo last night was kicked on to L hand”.[41]
[41] ST424, folio 845.
On 10 August 2002, Mr Upston again attended the Emergency Department of The Canberra Hospital complaining of a right foot or ankle injury. The clinical notes record “Turning kick @ taekwondo, all weight to R foot. Felt “something go” like a squash ball into back of ankle” and “Playing Tae-kwondo and felt sudden “twang” R calf. Unable to wt bear”. [42]
[42] ST426, folios 847 and 849; ST17, folio 57 refers.
In 2001, Mr Upston transferred to the Australian Quarantine and Inspection Service within the Federal Department of Agriculture and Fisheries, where he worked until March 2006.[43]
[43] ST29.
On 14 March 2006, Mr Upston completed a Confidential Medical and Personal Statement in the context of transferring his employment to the Department of Immigration and Multicultural Affairs.[44] He answered No to the following question –
… In the LAST 5 YEARS have you had medical advice or treatment for any of the following?...
…
27. Arthritis, gout or joint pains (e.g. shoulder, hand, knee, ankle, hip), RSI, tenosynovitis or any other disorder of the muscles, joints or bones?[45]
[44] ST30.
[45] ST30, folio 140.
On 13 June 2006, Mr Upston consulted Dr McGuiness, treating general practitioner. At that time he was complaining of left knee symptoms. The doctor referred Mr Upston to Dr Robert Still, an orthopaedic surgeon, and recorded the following clinical note –
“…
twisting feeling in lateral left knee
rotation and twisting causes grabbing
…
Examination
bruised laterally, swelling medially
tender on rotation
…”[46]
[46] ST17, folio 60.
On 20 June 2006, Dr Still examined Mr Upston and reported –
“[Mr Upston] sustained an injury to his [left] knee approximately three weeks ago when he stepped on a piece of uneven timber and felt a painful squelch at the lateral aspect of his knee. Since that time he has experienced intermittent sharp lateral pain, clicking and catching with associated swelling…
Examination today revealed a moderate effusion, painful restriction of full extension, tenderness localised to the lateral joint line and discomfort with McMurray’s test. There is some patella-femoral crepitus and anterolateral discomfort with patella-femoral loading activities. There is no instability.
… [Mr Upston] has good evidence of a tear to the left lateral meniscus with a luxating fragment…”[47]
[47] ST3.
On 21 June 2006, an MRI scan was reported to reveal –
CONCLUSION: Likely inferior surface oblique tear of posterior horn of MM. Focal bright STIR signal noted at margin of medial tibial plateau, ? acute or chronic. Intact LM. Moderate tibiofemoral joint wear. Possible small proximal tibiofibular joint ganglion.[48]
[48] ST4.
On 27 June 2006, Mr Upston underwent arthroscopic left knee meniscectomy and chondroplasty, performed by Dr Paul Miniter, an orthopaedic surgeon.[49] Dr Miniter diagnosed ”Left knee medial compartment oa”[50] and reported –
“… a substantial medial cartilage degenerative issue and this was dealt with arthroscopically. He has some degenerative change in the medial femoral condyle but this has not required anything other than debridement.”[51]
[49] ST6, folio 7.
[50] Ibid.
[51] ST7, folio 9.
On 15 March 2007, Dr McGuinness recorded that Mr Upston-
“…
is in excellent condition
exercises a lot – teaches twae kon do
…”[52]
[52] ST17, folio 60.
On 10 February 2009, Mr Upston consulted Dr McGuinness. In the context of a “routine bus drivers medical”, the doctor noted –
“…
right knee pain (infrapatellar) and instability
does taekwan do
…”[53]
[53] ST18, folio 70.
Dr McGuinness referred Mr Upston to Dr Miniter. On 24 March 2009, Dr Miniter reported that –
[Mr Upston] gave me a very good description of the injury which occurred fairly recently. He has classical medial meniscal signs with a strongly positive medial meniscal apprehension test. The patella-femoral joont is normal and the anterior cruciate ligament in intact. He is to come forward to simple knee arthroscopy in the near future.[54]
[54] ST8.
On 31 March 2009, Dr Miniter performed an arthroscopic right knee meniscectomy and chondroplasty and reported the following findings –
“Extensive delaminated tear MM right knee
ACL OK
LM OK
PF joint grade 3 lateral facet”[55]
[55] ST9 and ST10.
In 2015, Mr Upston was employed by the Australian Border Force. In this context, on 1 July 2016, he underwent a Customs Functional Fitness Assessment (Assessment) in which he provided a formal declaration in respect of, inter alia, a Change of Health Circumstances Questionnaire.[56] In this Questionnaire, Mr Upston answered “no” to the following questions –
[56] ST31.
1. Has there been any change with respect to the following conditions since you last underwent a Customs Standard medical Examination or completed a change of health circumstance questionnaire in relation to your designated Use of Force position?
…
23. Joint pain or injury?
24. Pain or abnormal or loss of feeling in an arm or leg?
…
40. Any other issues or circumstances which have occurred which may impact or your ability to safely undertake a Functional Fitness Assessment OR holding a valid L3 Use of Force Permit…
…
3. Please indicate if you would have any difficulties performing the following tasks:
Running 100 metres?
Standing or walking for a period of 4 hours?
Walking on uneven surfaces?
Squatting, crouching and kneeling?
Climbing a ladder?
…”[57]
[57] ST31, folios 142 and 143.
The Fitness Assessment including physical components, including “Knee Extension”.[58] The materials relating to this Assessment do not include the results of this component.
[58] ST32, folio 147.
On 28 February 2017, Mr Upston provided a Change of Circumstances Questionnaire and Declaration, setting out similar information to that which he provided on 1 July 2016.[59] He subsequently underwent a further fitness assessment on 23 March 2017.[60] The results of this fitness assessment reveal that he met all requirements[61] and, in particular his left knee extension was recorded to be “170”.[62]
[59] ST34.
[60] ST36.
[61] Ibid, folio 158.
[62] Ibid, folio 159.
Mr Upston underwent a further fitness assessment on 30 July 2018 and is recorded to have “Met all the requirements of the testing protocol”.[63]
[63] ST38 folio 164.
On 8 April 2019, an MRI scan of Mr Upston’s left knee was reported to Ms Erani Fernando of Hands On Physiotherapy. The report included the following comment –
“Degenerative medial meniscal tear. Medial and patellofemoral osteoarthrosis. Quadriceps tendinopathy.”[64]
[64] ST11.
There is an undated clinical note from Hands On Physiotherapy that may be inferred to have resulted from a consultation with Mr Upston prior to this MRI scan. The clinical note includes the following –
“S/E
Left knee pain – not sure how it started
Couple of weeks ago – medial knee pain
Agg: lying on side with knees together, twisting, getting into car – 7/10
Sharp deep pain
constant dull ache
nil referred pain
nil pins and needles
Arthroscope for left knee 5 yrs ago – cleaned it up – had tear in the meniscus
Arthroscope for right knee 4-5 yrs ago
limping with walking
am: sore and stiff
Day: depends on activity
pm: waking up through night
nil imaging
Left knee can give way if he turns and twists
nil clicking or locking
O/E
slight limp with walking – Varus legs
Left knee
Flx – P110 degrees and increases to EOR
Ext: good
Resisted – good
McMurrays – positive
Sharp P along medial joint line
Pain with Valgus force
Impression: medial meniscus tear?
Rx:
Written MRI for left knee
Plan: R/V after MRI”[65]
[65] ST13, folio 19.
On 15 April 2019, Dr McGuinness examined Mr Upston and noted –
“Very painful L medial knee – MRI show medial meniscus tear and full thickness chondral loss medially…”
Dr McGuinness referred Mr Upston to Dr Brendan Klar, an orthopaedic surgeon and stated –
“[Mr Upston] has considerable pain in the inner knee for a few weeks only, although he has knee pain off and on for over 30 years. He feels this is related to repelling out of helicopters in the Police force. There has been no actual injury at any time. He saw Dr Still about 5 years ago for arthroscopies on each knee for probably removla of losse bodies and some fraying.”[66]
[66] ST12.
I note that there is a handwritten annotation on this referral letter in the form of an arrow under the words “at any time” pointing to the words “Tai Kwon Do”. Who made the annotation and what it signifies is not clear.
On 8 July 2019, Dr Klar produced a report to Dr McGuinness in which he stated –
“…
During a helicopter rappelling training course conducted at the Army Barracks at Watsonia Victoria between 25 and 29 September 1981 [Mr Upston] sustained a significantly painful injury to his left knee joint where he landed very hard on the ground whilst rappelling from the hovering helicopter from a height of about 25 m. He had difficulty weight bearing and had to limp when he stood up. Later that night he regained some movement in the knee joint after taking pain relief. He continued training with considerable discomfort in the knee joint. Following that injury he has never felt the knee has been normal and he has never had full regain of function in the knee. He is now at a point where he believes the knee pain has stemmed from that injury and it has now become constant.
…
On examination [Mr Upston] stands at 187 cm tall and weighs 112 kg. There is a moderate effusion in the left knee joint. He has a positive McMurray’s test and a slight varus alignment. His hip examination is normal and the range of motion in his left knee joint is 0 to 135 degrees. His pulses are intact and his knee is ligamentously stable.
…
Unfortunately [Mr Upston] at the age of 63 is demonstrating too much osteoarthritis in his MRI scan done recently to benefit predictably from an arthroscopic debridement of the joint. Indeed in the face of full thickness chondral loss in the medial joint space, an arthroscopy is unlikely to provide him much in the way of pain relief.
I would expect that in the next few years he will come to knee replacement surgery. I believe that his significant service in the Police Force has contributed to his knee arthritis and certainly the injury that he describes very clearly during his training for the Rapid Response Team as Special Operations team, has likely caused damage to the knee joint and resulted in the arthritis that he is now experiencing.
I have encouraged [Mr Upston] to put in a Worker’s Compensation application following the injury he sustained…”[67]
[67] T10, folio 16.
On 12 July 2019, Mr Upston lodged a Workers’ Compensation Claim in which he stated –
“… During a helicopter rappelling training exercise conducted at the Army’s barracks in Watsonia VIC between 25^th and 29^th September 1981, I sustained a significantly painful injury to my left knee when I landed hard whilst rappelling from a hovering helicopter from a height of approximately 20-25 metres. I was able to hobble away and eventually gained some movement later that night after taking pain relief. I continued training with considerable discomfort. The injury has never left me however has become more apparent in recent years to such a degree that I am constantly in pain and am having difficulty sleeping…”[68]
[68] T11, folio 18.
On 22 August 2019, Comcare informed Mr Upston that “The AFP have not been able to provide any information for your claim“.[69] The next day, Mr Upston replied and informed Comcare that –
“The AFP advise that they have no incident/injury records predating 1998. Apparently all records were lost with implementation of a new personnel system.
It would appear that any record of the incident with the training helicopter has also been lost. A contemporaneous record of the incident was made in my official notebook however it also is not able to be located.
To reiterate: The SOT was involved with a rappelling training exercise conducted by an RAAF helicopter at Watsonia Barracks. Team members were rappelling from both sides of the aircraft. Due to a signal miscommunication (between the aircraft crew – gunner and load master) the team was not released simultaneously causing the sircraft to become dynamically unstable and placing operation of the aircraft in jeopardy. I was concerned that the ropes would be released prematurely (before we rappelled to the ground) and slid down quickly landing awkwardly on my left knee. The team leader (AFP Trainer) saw the incident and was also aware of my injury. I did not see any formal medical intervention at that time. Although I had severe pain I was able to continue training the next day.
I feel somewhat perplexed and disadvantaged by the lack of records and not sure how to proceed further.
…
I am happy to provide any and all information to assist in your assessment of the claim. I would further advise that this claim pertains to the medical report provided by Dr KLAR in his assessment of the possible cause of the injury and clinical solution to reduction in pain of which he has further provided a summary of surgery costs. I am not seeking compensation for any pain and suffering incurred however I would seek consideration of short-term physiotherapy costs after any surgery.”[70]
[69] T15, folio 29.
[70] Ibid, folios 28-29.
On 26 August 2019, Mr Upston’s claim was refused.[71]
[71] T16.
Mr Upston requested reconsideration of this decision and provided additional information, including a certificate that he completed a “Basic SOT Course” between 19 May and 31 May 1986.[72]
[72] T17.3, folio 36.
On 17 October 2019, Comcare decided to affirm its primary determination, refusing Mr Upston’s compensation claim.[73]
[73] T18.
On 19 November 2019, Mr Upston applied to the Tribunal for review of this decision.[74] The application, 2019/7546, was withdrawn during the hearing.
[74] T1.
On 18 January 2020, Mr Upston signed a statement in which he provided further details of the alleged left knee injury in 1981 –
7. In the course of that training program, I was required to carry out a task which involved rappelling from a hovering helicopter from a height of about 25 metres. In the course of carrying out that activity, I landed heavily on the ground and suffered a jarring injury to my left knee.
8. Following the incident, I continued to suffer from discomfort and pain in the left knee and I reported the matter to my supervisor at the time. I do not recall the names of other AFP team members involved at that time, nor the name of the AFP Training Supervisor. I also entered details of the incident in my official AFP notebook.
9. I was not advised at the time that I needed to take any other formal action about reporting the incident. As I had achieved a reasonable recovery from the incident after taking some pain relieving medication, I did not pursue the matter at all after that time as I did not suffer from any significant disability, and was able to carry out my duties.
10. Although I had some ongoing discomfort after that date, I did not seek any medical treatment at the time. [75]
[75] T22, folio 55; Exhibit 1.
On 27 February 2020, Mr Upston was examined for medicolegal purposes by Dr Jason Beer, a consultant orthopaedic surgeon. On 6 March 2020, Dr Beer produced a report to Mr Upston’s lawyer in which set out the history provided by Mr Upston[76] (I will set out only the reported history in respect of the alleged 1981 injury), his examination findings and his assessment –
[76] T24, folio 62
“Mr Upston reported that on 25 September 1981 he was performing a training exercise and was required to rappel from a helicopter from a height of 25 m. He reported that there were six people rappelling from the helicopter, three from one side and three from the other. He reported when the signal was given one side of the participants rappelled before the other side causing the helicopter to tip. Mr Upston was worried that the ropes were going to be disengaged due to issues with the helicopter being unbalanced, so he rappelled extremely quickly the whole 25 m to the ground landing extremely heavily on his left foot and jarring his left knee.
He reported significant onset of sharp discomfort in the medial aspect of the knee and a sudden onset of swelling. He reported he walked with a limp immediately. He reported the injury to his supervisor. He took some simple analgesia and applied ice and had no other intervention. The severe acute pain within the knee went on to recover over a period of two weeks. He reported that his knee has not been asymptomatic since this time and he has had some degree of discomfort in the medial aspect of his knee from this point forward.
…
PHYSICAL EXAMINATION:
… He stood 187 cm tall and weighed 111 kg. He had varus alignment of both knees. He can perform squat around 60° Knee flexion. His range of motion is as follows:
Right knee      0° to 130°.
Left knee        10° fixed flexion to 110° of flexion.
He has an effusion in the left knee. His cruciate and collateral ligaments were intact clinically. He had tenderness on the left medial joint line...
SUMMARY AND ASSESSMENT
…
3.    …
Due to Mr Upston’s history of no prior knee issue or injury previous to his work related injury of 1981 and the relatively severe description of injury at that time with sudden onset swelling, significant discomfort and limping for a period of two weeks it is likely that he sustained a tear to either his meniscus or acute chondral injury to the medial side of his knee at this time. Both of these injuries are consistent with causing development and acceleration of arthritis within the knee joint. Given that his knee has not been asymptomatic since 1991 [corrected on 20 March 2020[77] to read 1981], it would be reasonable to infer that this injury has had significant contribution to the current status of his arthritic knee.”[78]
[77] T25.
[78] T24, folios 62, 63 and 64.
On 7 December 2020, Dr Mourad reported the history given by Mr Upston, as follows –
… Training required jumping off or rappelling from a helicopter. He explained that on one occasion, he had to “rush down the rope really fast” from a height of about 20 m, landed on his left heel and “jammed” his left knee. His left knee was sore and swollen afterwards and he required pain killers. Mr Upston recalled that he had ongoing pain for about two weeks. Swelling settled after a few days and there were no X-rays or scans taken afterwards; however, Mr Upston maintains that he has had “niggling pain with overextension of his left knee” ever since.
On 25 March 2020, Mr Upston lodged a further compensation claim with the assistance of his lawyer.[79]
[79] T26.
On 1 May 2020, Comcare decided to refuse the claim.[80]
[80] T31.
On 11 May 2020, Mr Upston requested reconsideration of this decision.[81]
[81] T32.
On 28 May 2020, Mr Upston supplied Comcare with a statement by Philip Newton, a former AFP officer.[82] Mr Newton stated –
“3. A group of AFP officers from Canberra, which included, amongst numerous others, Peter Upston and myself, carried out some specific training in Canberra and then we were seconded to Melbourne to support Victoria Police and other AFP officers in Melbourne with security and bomb search duties related to CHOGM.
…
7. I do not recall being involved in any specific training with Peter Upston at the Watsonia Barracks though, I understand from what he told me, that he was also there…
8. As part of the training at Watsonia Barracks, we were divided into different squads or teams and trained in particular tasks. I am sure that Peter Upston was not in my squad or team during that training.
9.One of the tasks that we were trained in involved rappelling from a helicopter. That process involved a helicopter picking us up and then flying for a short period, hovering above the ground. We were wearing harnesses arounds our hips and groin which were clipped in and a rope was attached which ran through a pin in the helicopter. My recollection was that four of us (two on each side of the helicopter) were involved in rappelling to the ground from the helicopter. The helicopter was about 100 feet off the ground…
10. I recall on one occasion that in doing the activity, I struck my nose and suffered an injury as result of the activity. I did not report the incident at the time and just carried on with the activity despite being injured. I did not then or since seek any treatment for that injury I suffered.
11. I do not have any knowledge of any injuries suffered by Peter Upston whilst carrying out the training at Watsonia Barracks.”[83]
[82] T33.
[83] T33, folios 89-90.

On 29 June 2020, Comcare decided to affirm its primary determination to refuse Mr Upston’s second left knee injury compensation claim.[84]
[84] T21.
On 24 July 2020, Mr Upston applied to the Tribunal for review of this decision.[85]
[85] T20.
On 1 September 2020, Phillip Kleine, a former AFP officer, signed a statement.[86] Mr Kleine worked as an instructor who was involved in training squads in Canberra and in Melbourne prior to the 1981 CHOGM. He recalled that Mr Upston was a participant in the training conducted in Canberra and stated –
“6. I recall that part of the training that we continued in Melbourne involved training in rapelling from helicopters. I was the leader of one group involved in that training. Peter Upston was not under my command, but I am aware that he was involved in that activity as part of the training.
7. The rapelling exercise involved a group of five travelling in a helicopter. The helicopter would then hover over the ground at a particular height, which enable ropes to be lowered from the helicopter onto the ground. There was then a specific procedure that had to be followed for each of the team members to move to the skids of the helicopter and then, on command, to rapell to the ground.
8. I recall it was essential that all Stick Team members descended to the ground at the same time. It was sometimes difficult to coordinate that, but if it did not occur it would lead to an imbalanced situation with the helicopter wobbling from side to side. This could create significant difficulty for the team members once they arrived at the ground.
9. Part of the procedure involved the leaders of each team discussing in a debriefing exercise any activities or incidents that had occurred during the training. I recall two specifically two matters that were raised in such debriefing sessions.
10. The first incident involved a Stick Team leader who, as a result of misjudging the activity, came down the rope upside down and would have sustained a serious injury if the helicopter had not descended slowly and lowered him to the ground.
11. The second incident I was told about involved one of the helicopters. The team members in the helicopter descended at different times and this created an uneven situation and the helicopter began to wobble. When that occurred, I was told that the crew had to rappel as quickly as possible to the ground and, indeed, landed hard upon the ground. I do not recall any specific mention of injury arising from that incident.
…
13. I had no knowledge in 1981 of any injury caused to Peter Upston and I have not discussed the incident during his training, or any injury caused to him.”
[86] Exhibit 2.
On 30 November 2020, Mr Upston was examined for medicolegal purposes by Dr Mohamad Mourad, a consultant orthopaedic surgeon. On 7 December 2020, Dr Mourad produced a report to Comcare in which he set out the history given to him by Mr Upston (I will set out only that referring to the alleged left knee injury in 1981), as well as his examination findings and his assessment –
“Mr Upston recalled that he was working for the AFP to assist Victoria Police during a CHOGM … event. Training required jumping off or rappelling from a helicopter. He explained that on one occasion, he had to “rush down the rope really fast” from a height of 20 m, landed on his left heel and “jammed” his left knee. His left knee was sore and swollen afterwards and he required pain killers. Mr Upston recalled that he had ongoing pain for two weeks. Swelling settled after a few days and there were no X-rays or scans taken afterwards; however, Mr Upston maintains that he has had “niggling pain with overextension of his left knee” ever since.
…
PHYSICAL EXAMINATION:
…
Lower limbs:
There was no evidence of muscle wasting.
…
He displayed bilateral varus alignment of both knees with no evidence of lateral thrust.
He displayed 5° of fixed flexion deformity.
He was able to perform a single leg hop on the right but not the left.
He was able to squat to 110°.
There was palpable crepitus worse on the right compared to the left.
There were palpable tender osteophytes on the left medial joint line of the knee. The was also a mild effusion with a positive swipte test.
Range of motion was measured with a goniometer at 5° to 110° on the left and 0° to 120° on the right. The knee was stable.
SUMMARY AND ASSESSMENT:
Mr Upston is a 64-year-old retired police officer/investigator who present with a history of chronic pain affecting his left knee. He has evidence of let knee osteoarthritis…
…
…I consider that Mr Upston indeed suffered an injury on September 1981. He describes being unable to fully extend his knee as far back as 1981. It is likely that he sustained meniscal or chondral damage to his left knee as a result of the incident described.
…
… I consider that on the balance of probabilities Mr Upston’s injuries in 1981 and 1986 contributed to a significant degree to the subsequent development of osteoarthritis in his left knee…”[87]
[87] Exhibit 4, 2, 5, 6 and 8.
On 19 March 2021, Comcare briefed Dr Mourad to produce a second report, addressing a number of “Factual assumptions” and other matters.
On 29 March 2021, Dr Mourad provided Comcare with a second report in which he addressed the various scenarios as requested and revised his earlier opinion somewhat –
“I consider that the knee extensions practised in taekwondo and Mr Upston’s black belt achievement make it less likely that he was unable to fully extend the left knee between 1981 and 2006.
Thus, it is likely that the nature and extent of the left knee damage caused in 1981 was less severe than I originally estimated in my report dated 7 December 2020.
…
Nonetheless, I still consider that a 20m fall during rappelling from a helicopter is likely to have significantly contributed to the development of osteoarthritis.
…”[88]
[88] Exhibit 5, 3 and 4.
This report was taken into evidence over Mr Grey’s objection. The objection was pressed on two grounds. Firstly, Dr Mourad’s opinion should not be admitted into evidence to the extent that it is based on assumed facts that are not proved by other relevant materials, where the assumed facts have a composite or ambulatory character. And secondly, the opinion expressed strays outside Dr Mourad’s specialist knowledge. Even though I ruled on the objection during the hearing, I will briefly address the issue to assist understanding.
With regard to the first objection, Comcare argued that the posing of hypothetical questions framed by factual assumptions is permissible so long as the expert witness does not express opinion about the veracity of any assumed fact or the likelihood any assumed fact might be proved – the opinion given must be based on the assumed facts. Authority for this proposition is drawn from Dasreef Pty Ltd v Hawchar (Dasreef).[89] With regard to the second objection, Comcare asserts that the opinion sought in respect of the effect of knee movements in Taekwondo is within Dr Mourad’s area of specialised knowledge.
[89] [2011] HCA 21.
There are three things to note about this.
Firstly, under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate. Nevertheless, it can be accepted that the principles underlying the rules of evidence, in respect to opinion evidence for example, may be applied (and perhaps should be applied) unless there is a compelling contrary reason consistent with the Tribunal’s inquisitorial role.[90]
[90] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, per Flick and Perry JJ at [92]-[95].
Secondly, Comcare’s second brief to Dr Mourad is problematic for several reasons. It asks the doctor to accept as true a complex series of assumed facts and to “assume as correct what is in the AFP s 71 documents”. It is one thing to ask an expert to assume a fact as true, it is entirely another to ask the expert to assume the truth of a large body of documents, running to almost 1,000 pages. An assumption of the latter kind is ambulatory, imprecise and likely to lead to uncertainty to the extent is should not be accepted. Opinion is no more than an inference drawn from observed and communicable data.[91] Asking an expert to assume the correctness of a large volume of documents does not meet the threshold required in respect of observed and communicable data and it is not a proper basis on which to solicit expert opinion.
[91] Honeysett v The Queen [2014] 29, per French CJ, Kiefel, Bell, Gageler and Keane JJ at [21] (Honeysett).
Furthermore, the proposition that expert opinion may be tendered on the basis of assumed facts strung together in hypothetical scenarios is somewhat controversial, at least to the extent that this relates to the ‘basis rule’ – in which opinion may be excluded if the factual basis on which it is made is not established by other evidence. The ‘basis rule’ may not exist in the common law,[92] and it was not included in the Evidence Act, but it raises a question about the extent to which, if at all, considerations of this kind might guide the Tribunal.
The breadth, complexity and number of the assumed facts gathered into the two scenarios set out in Comcare’s brief may lead to imprecision, lack of clarity and uncertainty. Dr Mourad is asked to express opinion accepting all of the assumed facts to be true. Albeit that the party asserting facts may bear a burden of persuasion, and there is no strict onus of proof in Tribunal proceedings, it is for the Tribunal to determine if the asserted facts are proved. What is to be made of the expert opinion if some but not all of the assumed facts are ultimately proved? Where an assumed fact is not proved, any opinion based upon it will fall away. Evidence relating to proof of assumed facts, and any inference of prejudice in the framing of assumptions on which expert opinion is given, are amenable to testing at hearing and in cross-examination of the expert witness. These are not matters which go to admissibility in proceedings of the present kind, but they certainly go to the utility and probative value of the expert opinion and the weight it may be given at hearing.
[92] Dasreef Pty Ltd v Hawchar [2011] HCA 21 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [41] (Dasreef).
Thirdly, while the importance of form[93] may diminish somewhat in proceedings of this kind where the rules of evidence do not strictly apply, it is nevertheless important to distinguish between assumed facts and opinion and to clearly consider the extent of specialist knowledge on which opinion may legitimately be based, in substantial part at least. Importantly, the opinion must be drawn from “specialised knowledge based on the person's training, study or experience” -
32. To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge "; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge".[94]
[93] HG v The Queen [1999] HCA 2, per Gleeson CJ at [29].
[94] Dasreef, per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [32].
Specialised knowledge is distinguished from common knowledge, or from observation and knowledge of everyday affairs: it is knowledge derived from training, study or experience. [95]
[95] Honeysett, per French CJ, Kiefel, Bell, Gageler and Keane JJ at [23]-[24].
Failure to establish that the opinion is substantially based on the witness’s specialised knowledge is a matter that goes to the admissibility of the opinion, not it’s weight.[96] These considerations should be kept steadfastly in mind when assessing the objection made on the particular facts and circumstances of this case.[97]
[96] Dasreef per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [42].
[97] Hart v Commissioner of Taxation (No. 2) [2016] FCA 897 at [31].
It is germane to consider what the plurality said in Dasreef in respect of the operation of the opinion rule under s 76(1) of the Evidence Act and the exclusion provided in s 79(1) –
31. Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact". That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between "opinion" and "fact" or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of "fact". Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding"[22]. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
As can be seen, the first consideration is one of relevance - what is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving. It is quite clear that Comcare sought to rely on Dr Mourad’s second report to prove two key facts, albeit perhaps negatively. Firstly, Dr Mourad’s opinion in his second report is relevant to proof of Mr Upston’s left knee movement restriction following the alleged incident in 1981. And secondly, the doctor’s opinion in his second report is relevant to proof of the contributory factors to Mr Upston’s left knee osteoarthritis and when he first suffered from that condition.
Dr Mourad acknowledged that he does not have specialised knowledge of Taekwondo. That might be an important relevant consideration if the doctor expressed opinion drawn from common knowledge of Taekwondo. To my mind, he did no such thing. He was asked to express opinion about an extract from a research report and factual assumptions based on Mr Upston’s Taekwondo activities, involving kicks and other physical manoeuvres. The opinion Dr Mourad expressed about those matters was in respect of physiological considerations drawn from his specialist knowledge and training as an orthopaedic surgeon in response to the facts he was asked to assume. Even if some part of his opinion may have been partly drawn from assumptions about or common knowledge of Taekwondo, which he denied, and I make no such finding, at the minimum his opinion is substantially drawn from specialist knowledge he possesses in the field of orthopaedic surgery and anatomy.
Furthermore, Dr Mourad’s second report was given to Mr Upston’s lawyer well before the hearing. Even though there may be some difficulty cross-examining Dr Mourad on his opinion drawn from the hypothetical scenarios and assumed facts put to him as Mr Grey asserted, I am not persuaded this amounts to an issue of procedural fairness or that it may present insurmountable difficulties for Dr Mourad.
For these reasons, Mr Grey’s objections were over-ruled and Dr Mourad’s second report was taken into evidence.
Issues
There is no dispute that Mr Upston suffers from osteoarthritis in his left knee and that this amounts to an ‘ailment’ for the purposes of the legislation.
As I have said, there is a controversy over alleged events in Melbourne in or about September 1981 and Mr Upston’s assertion that he sustained a left knee injury at that time.
Comcare asserts that Mr Upston did not meet the notice requirements of the legislation, such that his left knee injury claim is barred.
If Mr Upston’s claim is not barred for want of notice, following the High Court judgement in Military Rehabilitation and Compensation Commission v May,[98] in order to determine if Mr Upston’s left knee injury claim is made out, it is necessary to determine if –
a) Mr Upston’s previous employment contributed to the relevant degree to his left knee osteoarthritis ailment such that it amounts to an ‘injury’ in the form of a ‘disease’; and if so,
b) is Comcare liable to pay compensation in respect of the ‘injury’?
[98] [2016] HCA 19, per French CJ, Kiefel, Nettle and Gordon JJ at [50]-[56].
Determining which legislation applies in the circumstances of his claim is a threshold issue.
1981 left knee injury
Mr Upston’s asserts that he sustained a left knee injury in or about September 1981 while undertaking training on a posting to Melbourne. In his oral evidence, Mr Upston explained that he could not be sure of the dates and thought he may have been in Melbourne for a number of weeks prior to CHOGM. He alleges that the training, in part, involved an exercise in which he and other members were required to rappel from a hovering helicopter to the ground. He asserts that this exercise required members to rappel from both sides of the hovering helicopter at the same time to avoid unbalancing the airborne helicopter. He alleges that when he was undertaking this exercise, something went wrong, the helicopter became unbalanced and wobbled, causing him to rappel very quickly to the ground from a height of 20 to 25 metres in fear that the rappel rope would be disconnected in order to protect the helicopter from crashing. Mr Upston alleges that he landed heavily on his left heel, jarring and hyper-flexing his left knee. He asserts that this caused him to experience sudden pain and swelling in his left knee which persisted for some time (he has given varying accounts of the duration of symptoms), albeit not sufficient to prevent him from continuing with his work duties.
Comcare contests this version of events. In Comcare’s submission, Mr Upston’s account is unreliable and unsupported, and it should be rejected as untrue.
There are no contemporaneous records of these events in the materials placed before the Tribunal. Nonetheless, these assertions are at the heart of Mr Upston’s compensation claim.
It is necessary to carefully assess his evidence in respect of these matters and, in so doing, to consider all of the relevant materials.
Mr Upston could not recall precisely when the alleged rappelling incident occurred. He admitted that he had found the dates of the 1981 CHOGM on the internet and had recalled that the incident occurred in the preceding period.
In his oral evidence, Mr Upston described the alleged rappelling incident and stated that he experienced pain, swelling and discomfort in his left knee as a result, for which he took painkillers and used an ice pack that evening. The pain and swelling persisted the following day but he did not seek medical treatment as he was able to perform all of his usual duties and there was a culture of not reporting injuries or symptoms. It is Mr Upston’s evidence that since this alleged incident he has not been able to fully straighten his left knee without pain. In other accounts, he has asserted the pain, swelling and discomfort lasted for two weeks.[99] This assertion of experiencing such symptoms for two weeks is not consistent with his evidence that he was able to continue with his normal duties, including the training in which he was engaged prior in Melbourne.
[99] See reports of Dr Beer and Dr Mourad, for example.
The earliest records in which Mr Upston refers to the CHOGM do not refer to any incident involving rappelling from a helicopter and sustaining an injury to his left knee.[100]
[100] See ST141 for example.
In important regards, Mr Upston’s evidence of what he alleges occurred in the Special Operations training in Melbourne prior to the CHOGM meeting in October 1981 is not consistent with accounts given by Mr Kleine and Mr Newton, both of whom gave evidence at the hearing of this matter
Mr Upston asserts that he saw Mr Kleine the day following the alleged helicopter incident and he saw Mr Newton in the Barracks that evening. Mr Kleine and Mr Newton deny ever seeing Mr Upston on their postings to Melbourne prior to the 1981 CHOGM.

By Mr Upston’s account, the helicopter-based training took place at the Simpson Barracks in Watsonia, where three Iroquois helicopters and two Army Jet Ranger helicopters would conduct training operations on and above playing fields around the Barracks. Mr Kleine’s evidence is that this did not occur. On his evidence, all trainees on the particular day would be required to travel in buses from the Watsonia Barracks to the Moorabbin Airfield to undertake helicopter training exercises.
In his oral evidence, Mr Upston asserts that the helicopter pilot landed after the rappelling incident, was abusive to the rappelling team, and then flew off, departing the training area. It is Mr Kleine’s evidence that this was highly unlikely and he had not heard of a pilot behaving in such a manner. Furthermore, on his evidence, any such incident would have been the subject of discussion in the daily briefing that evening and in the Barracks, but no such briefing or discussions occurred to his knowledge. That said, Mr Kleine recalled a briefing discussion about an incident in which a team rappelling from a helicopter became unbalanced and were required to descend quickly, landing hard on the ground. In his oral evidence he recalled witnessing such an event from afar, but he was not aware of anyone being hurt.
In my assessment, Mr Kleine and Mr Newton were very straight-forward and reliable witnesses who gave clear and detailed evidence to the best of their recollection. Their recollections of the pre-CHOGM training arrangements in 1981 and what occurred on a daily basis in that context were very clear, detailed, unequivocal and compelling. I have no difficulty accepting their evidence. Mr Upston’s recollection was less clear, albeit that he strongly adhered to his account in general terms.
Furthermore, Mr Upston’s claim requires acceptance of his evidence of suffering from left knee symptoms or dysfunction consequent to the alleged injury in 1981 despite facts capable of supporting contrary inferences. Mr Upston asserts that he could not fully straighten or hyper-flex his left knee without pain at any time after the alleged injury in 1981 and yet -
(a)there is no record of him sustaining or complaining of a left knee injury in 1981 as he alleges;
(b)there is no record of him complaining of or reporting restricted left knee movement as a result of the alleged injury in 1981 to any treating doctor, medical examiner or any employer from 1981 to 2019;
(c)there is evidence of Mr Upston reporting, seeking medical treatment for, taking leave and claiming compensation in respect of various injuries and ailments, but no record of him doing so in respect of a left knee injury in 1981 or consequent symptoms or impaired movement from 1981 to 2006 (albeit that the left knee treatment he obtained from Dr McGuinness, Dr Still and Dr Miniter in 2006 was not expressly related to any alleged injury in 1981);
(d)he continued to practice Taekwondo from 1981 to the present (albeit with a 13 month break due to a hand injury in 1982 and 1983) and attained a high level of skill and proficiency without record of a left knee impairment;
(e)he continued to work in his normal duties as a Police officer until retirement in 1995 without record of impairment in his left knee as a result of any alleged injury in 1981;
(f)he was employed by the ACT Government in 1998 and expressly denied any left knee disorder in a Confidential Medical and Personal Statement for the Public Superannuation Scheme;[101]
(g)his lower limbs were reported to be normal in biennial Commercial Driver’s Health Assessment documents and Public Passenger Vehicle Driver Medical Assessment Certificates completed by Dr McGuiness from 2002 to 2013;[102]
(h)he was employed by Australian Border Force (ABF) and did not disclose any left knee problem in ABF Change of Circumstances Questionnaire and Declaration documents;[103]
(i)he passed ABF Functional and Fitness Assessments, which included full extension, without disclosing any left knee condition or impairment.[104]
[101] ST30, folio 140.
[102] ST19 to ST28.
[103] ST31 and ST34.
[104] ST33, ST36 and ST38.
Applying the principles to which I have already referred, while it is possible the alleged events happened in the manner Mr Upston has described, on the present evidence, considering all the materials before the Tribunal, I am not reasonably satisfied that this is anything more than a possibility. I am not positively persuaded that the incidents of the left knee injury Mr Upston asserts he suffered in September 1981 actually occurred in the manner he described in his evidence. More is required to establish the asserted facts and to enable a positive finding to be made that the particular events occurred.
This conclusion is not simply formed by an assessment of Mr Upston’s credit as a witness and the reliability of his evidence, and the unsupported nature of key elements of his evidence raises serious questions about the extent to which it can safely be relied up, rather it is formed by close consideration of relevant contextual materials and oral evidence, as well as reasonable inferences that may be drawn. The sharp point is that Mr Upston’s evidence about the particular events he alleges stands alone and it is not sufficiently supported by or consistent with other relevant evidence to the extent that the injury he asserts is made out as a fact on the balance of probabilities.
Much was said during the hearing about the failure of the AFP to provide all relevant materials in a timely manner, or at all. These are serious matters. As a public enforcement agency that holds a position of significant public trust, the AFP should not only comply with its legal obligation to provide all documents in its holdings that are within the scope of Comcare’s notice under s 71 of the SRC Act, it should also adopt a principled approach to injury-related requests by former employees for employment records, such as that made by Mr Upston.
Mr Upston’s original requests for documents from the AFP were unproductive. Subsequently, the AFP produced documents in different tranches. Most recently, a large bundle of documents was produced in purported compliance with a notice issued by Comcare under s 71 of the SRC Act. Mr Grey asserts that all relevant documents have not yet been produced, including, importantly, movement or posting records, payment records and Mr Upston’s official AFP notebooks. Quite clearly, records and documents of these kinds are not in the materials given to the Tribunal. Whatever the reason for this, and I accept that documents may have been lost or cannot be found and that records prior to 1990 may have been lost or destroyed, the Tribunal must make to correct or preferable decision on the materials placed before it. To my mind, the absence of AFP records of the kinds Mr Grey alluded to is not a robust or sufficient basis for the drawing of any inference, positively or negatively, about the alleged incidents of the left knee injury Mr Upston says he sustained in September 1981. That said, the absence of documents and records presents real practical difficulties for each party in these proceedings.
Mr Grey asserts that an allegation of fraud has been levelled against Mr Upston to the extent that his account of sustaining an injury in September 1981 is a fabrication. As I have said, considering all of the relevant materials, Mr Upston’s account is not proved on the balance of probabilities to the requisite standard of satisfaction.
Mr Upston’s account, including his sworn testimony, and all of the evidence does not persuade me that the incidents of the left knee injury he asserts he sustained in September 1981 actually occurred. I should say immediately that it does not follow that Mr Upston has lied in his testimony or that he has attempted to defraud Comcare, and I make no such findings. To my mind, this is not a binary matter – failure to prove Mr Upston’s version of events in fact does not mean that the allegation of fraud or lying that has been levelled against him must be accepted; nor does it follow that failing to prove the allegation fraud or lying means that Mr Upston’s account must be accepted as fact. There are other possibilities, including that Mr Upston is relying on faulty recollections of events which have assumed the character of memories he believes to be true without any substantial basis, or he truly recalls details of events forty years ago, but the scope and veracity of his recollection cannot now be confirmed due to the unavailability of contemporaneous records.
Either way, in my assessment, there is insufficient material to positively establish the events Mr Upston alleges occurred in or about September 1981 to the extent that the alleged injury to his left knee is positively established as a fact. It is not necessary to positively establish that the alleged injury did not occur in the manner he alleges or that his claim is fraudulent. The present evidence and the materials before the Tribunal are not sufficient to support a positive finding, on the balance of probabilities, that Mr Upston sustained a jarring or hyperflexion injury to his left knee in or about September 1981 that continued to afflict him thereafter in the manner he asserts.
Which legislation applies?
Mr Upston’s second claim was made and is to be decided under the SRC Act. This is so, even though the 1971 Act was in effect when the alleged incidents in his previous employment are said to have occurred. Under s 124(1), the SRC Act applies in respect of an injury, damage or loss suffered by an employee before or after the starting day in 1988.
There are two important points to make in respect of s 124 of the SRC Act.
Firstly, an employee is only entitled to payment of compensation in respect of an ‘injury, loss or damage suffered before the commencing day’ if it was payable, relevantly, under the 1971 Act: s 124(1A). Furthermore, an employee is not entitled to compensation in respect of an injury, loss or damage suffered before the commencement day if no such compensation was payable under ‘the 1971 Act as in force when the injury, loss or damage was suffered’: s 124(2). Thus, in circumstances where it is alleged an injury has occurred as a result of an incident prior to the commencement day on 24 June 1988, it is important to determine the date on which the alleged injury, loss or damage was suffered in order to decide if the injury, loss or damage claimed is within the terms of the 1971 Act.
Secondly, in such circumstances, in order to determine the date on which an injury, loss or damage in the form of a disease (in the ordinary sense) was suffered, it is necessary to assess when the ailment or (or the aggravation of the ailment) that is claimed as an injury was first suffered. The suffering of an ailment is to be established by medical evidence of first signs or symptoms experienced or complained of by the employee. At this stage, it is important that the onset of an ailment is not confused with the date of an injury – the latter will arise only if an ‘injury’ is found to exist.[105] For this reason, it is not permissible to apply the terms of s 7(4) of the SRC Act or s 29(2) of the 1971 Act when determining the date on which an employee first suffered an ailment (or a disease in the ordinary sense).
[105] Smith v Comcare [2013] FCAFC 65, per Buchanan J, with whom Greenberg J agreed, at [34]-[35] (Smith v Comcare).
In the case of progressive disease, such as Mr Upston’s left knee osteoarthritis, it is difficult to accurately determine when the disease (in the ordinary sense) was first suffered. Certainly, on the present evidence, it is not possible to determine when Mr Upston’s left knee osteoarthritis began. The evidence of Dr Miniter, Dr Klar, Dr Beer and Dr Mourad is that this probably occurred prior to 2006, when Mr Upston first sought treatment for symptoms in his left knee. There is no independent evidence to support Mr Upston’s account of experiencing left knee symptoms from 1981. Furthermore, there is no independent evidence to support Mr Upston’s evidence that he continued to experience left knee symptoms after the 1986 haematoma injury to his left knee.
For present purposes, it is the suffering of symptoms that is determinative under the 1971 Act. Plainly enough, the 1971 Act does not apply to symptoms of a disease (as defined in s 5(1) of the 1971 Act) that were first suffered long after repeal of that Act. The 1971 Act was repealed when the SRC Act came into effect in 1988.
That being so, I am satisfied that Mr Upston first suffered left knee osteoarthritis in 2006 and the SRC Act applies.
Under the SRC Act as in force in 2006, the words ‘injury’ and ‘disease’ were given meaning in s 4(1), namely-
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
These definitions were amended and replaced by the present definitions of ‘injury’ and ‘disease’ when s 5A and s 5B of the SRC Act came into effect on 27 April 2007 following passage of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Amendment Act). The application of the new definitions is governed by s 41 and s 42 of the Amendment Act –
41 Application of amendment of the definition of disease (section 5B)
(1) The definition of disease in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that the employee suffers on or after the day after this Act receives the Royal Assent.
(2) For the purposes of subitem (1), an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988.
42 Application of amendment of the definition of injury (section 5A)
The definition of injury in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to a disease, injury or aggravation that an employee sustains on or after the day after this Act receives the Royal Assent.
As can be seen, the new definitions of ‘disease’ and ‘injury’ do not apply to an ailment suffered or an injury sustained before the date of Royal Assent, albeit that the date on which an ailment is first suffered is to be worked out by applying the terms of s 7(4) of the SRC Act. In the circumstances of this case, it is not necessary to attempt to resolve any perceived inconsistency that may arise from the construction adopted by the majority in Smith v Comcare[106] when applying s 41(2) of the Amendment Act.
[106] Per Buchanan J, with whom Greenberg J agreed, at [34]-[35].
As Mr Upston first suffered left knee osteoarthritis in 2006, the definitions of ‘injury’ and ‘disease’ within the SRC Act that were in force at the time are applicable.
Notice
The requirement for notice of an injury is set out in s 53 of the SRC Act –
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
…
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
As can be seen, the key determinant for compliance with the primary notice requirement is when the person ‘becomes aware of the injury’.
There is no controversy between the parties about when Mr Upston first became aware of the osteoarthritis in his left knee. This occurred following left knee arthroscopic surgery in 2006 when, on 27 June 2006, Dr Miniter reported a diagnosis of left knee osteoarthritis.
Mr Upston asserts that he was not aware at that time that his left knee osteoarthritis might amount to an injury. He did not become aware of that possibility, so the argument goes, until he consulted Dr Klar on 8 July 2019 who suggested to him that the alleged injury in 1981 may have causally contributed to his left knee osteoarthritis. It is Mr Upston’s assertion that he promptly lodged a compensation claim thereafter and, in so doing, satisfied the primary requirement for notice.
The word ‘injury’ in s 53(1) of the SRC Act and the information that must be communicated for notice to be given has been considered in previous cases. In Frosch v Comcare,[107] Whitlam J summarised the threshold requirement for notice in the following way: “the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment”.[108]
[107] [2004] FCA 1642.
[108] Ibid, at [8].
The difficulty in Mr Upston’s argument is that he asserts that he has experienced niggling discomfort and restricted movement in his left knee since the alleged injury in September 1981. If this was correct, one might expect him to have discussed it with Dr McGuinness, Dr Still or Dr Miniter in 2006. That did not occur. Furthermore, on Mr Upston’s account of persistent left knee symptoms from 1981, and his history of having made compensation claims in respect of various other injuries, it would be reasonable to infer that he might have been aware of the possibility, at least, that the osteoarthritis Dr Miniter diagnosed might have been causally related to injury he alleges occurred in 1981 with continuing effect.
The proposition that Mr Upston did not know that the osteoarthritis Dr Miniter diagnosed might have been causally related to the alleged injury to his left knee in 1981, the left knee injury he sustained in 1986 or the nature and conditions of his previous employment, which he now asserts, is difficult to accept.
Nevertheless, even if he failed to give notice as soon as practicable after becoming aware of the left knee injury for which he has claimed compensation, this is not fatal to his claim. There is some flexibility allowed in provisions of s 53(3) of the SRC Act. In particular, s 53(3)(c) sets out a number of alternative considerations which, if met, would lead to notice being taken to have been given. The absence of prejudice to the relevant authority is but one of these matters. Where the failure results from ignorance or a mistake, or any other reasonable cause, even in the presence of prejudice to the relevant authority, notice may be taken to have been given.
It is possible, even perhaps likely that Mr Upston did not realise in 2006 that his left knee osteoarthritis might have been causally related to any incidents in his previous employment. It may be accepted that a causal connection of that kind might require medical knowledge. If that is accepted, Mr Upston may be taken to have become aware of the injury for which he claims compensation in 2019, when he discussed that possibility with Dr Klar.

I do not need to go any further with these considerations, as Mr Upston’s case fails regardless of the outcome of the notice issue.
Employment contribution
In order to meet the threshold of a ‘disease’, it must be established that Mr Upston’s previous employment materially contributed to his left knee osteoarthritis ailment.
Central to his claim are three causal elements: the alleged left knee injury in 1981; the left knee injury in 1986; and the terms and conditions of his employment as a police officer with ACT Police and the AFP from 1975 to1995.
On balance, the present evidence does not support Mr Upston’s claim.
The alleged left knee injury in 1981 is not established as a fact. Absent that, the asserted contribution of that alleged injury to Mr Upston’s left knee osteoarthritis is not made out.
Mr Grey conceded during the hearing that the 1986 injury, alone, may not meet the causal threshold for an ‘injury’, namely a material degree of contribution. This concession is correct. The evidence of Dr Beer and Dr Mourad clearly establishes that the injury in 1986 may have contributed to Mr Upston’s left knee osteoarthritis, but not to a degree that was more than minimal. The 1986 injury was to a different part of Mr Upston’s left knee and it did not clearly impact upon the medial compartment in which Dr Miniter identified osteoarthritis in 2006. I am not satisfied that Mr Upston’s 1986 left knee injury materially contributed to the onset or progress of his left knee osteoarthritis.
To the extent that the claim asserts that the nature and conditions of Mr Upston’s former employment contributed to his left knee osteoarthritis, this part of the claim was not expressly pressed at hearing. Although Mr Upston’s case was not run on this basis, in my assessment of the present evidence, there is insufficient material to establish that the nature and conditions of Mr Upston’s previous employment from 1975 to 1995 materially contributed to his left knee osteoarthritis condition. The medical evidence does not support any such conclusion.
For these reasons, Mr Upston’s left knee osteoarthritis ailment does not meet the threshold for a ‘disease’ for the purposes of the SRC Act.
The only suggestion that his left osteoarthritis might meet the threshold for an ‘injury (other than a disease)’ flows from the alleged causal role of frank injuries to his left knee that Mr Upston claims to have suffered during his employment. As I have said, the alleged injury to his left knee in or about September 1981 is not established as a fact and it is not established that the left knee injury he sustained in 1986 was material in the subsequent onset or progress of the left knee osteoarthritis that Dr Miniter diagnosed in 2006. Furthermore, osteoarthritis is a progressive ailment of gradual onset. In Mr Upston’s case the evidence does not establish that a sudden or ascertainable physiological change occurred in his left knee that would amount to an injury in the ordinary sense. The medical evidence establishes that his left knee osteoarthritis was probably of gradual onset, progressing overtime until it became symptomatic in 2006. That being so, I am not persuaded that it can be treated as an ‘injury (other than a disease)’.
In conclusion, therefore, Mr Upston’s left knee osteoarthritis ailment does not meet the threshold for an ‘injury’ under the SRC Act.
Decision
The decision under review is affirmed.

I certify that the preceding 146 (one hundred and forty six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

..................................[sgd].....................................
Associate
Dated: 19 July 2021

Date of hearing:
9-11 June 2021

Counsel for the Applicant:

Counsel for Respondent:
Mr Leo Grey

Ms Sarah Wright