Wade v SA Water - [2016] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Permission to Appeal)
WADE v SA WATER
[2016] SASC 172
Judgment of The Honourable Justice Hinton
9 November 2016
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - GENERALLY
Application for permission to appeal to the Full Court of the Supreme Court from a decision of the Full Bench of the South Australian Employment Tribunal.
Mr Wade was employed by the Engineering and Water Supply Department, the corporate predecessor of SA Water. In 1991 he made a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA) for noise induced hearing loss. He was assessed at that time to have sustained binaural hearing loss of 14.7% and received a lump sum compensation.
In 2012, Mr Wade acquired a set of hearing aids and in 2013 undertook an audiogram which revealed he had 54.6% binaural hearing loss. He claimed the cost of the hearing aids from SA Water. SA Water rejected the claim. Mr Wade disputed the decision rejecting the claim in the Workers Compensation Tribunal. The President of the Tribunal confirmed the rejection.
Mr Wade appealed to the Full Bench of the South Australian Employment Tribunal. The appeal was dismissed.
Mr Wade sought permission to appeal to the Full Court pursuant to s 68 of the South Australian Employment Tribunal Act 2014 (SA), on grounds that the Full Bench erred in concluding that the President did not invoke a test for causation that was erroneous; erred in concluding that the President had provided adequate reasons for finding that the cost of the hearing aids was not incurred in consequence of the 1991 compensable injury; and that the Full Bench erred in concluding that the President had afforded procedural fairness.
Held:
1. Permission to appeal is granted in part.
South Australian Employment Tribunal Act 2014 (SA) ss 3, 67, 68; Workers Rehabilitation and Compensation Act 1986 (SA) ss 32, 43; Return to Work (Transitional Arrangements) (Dissolution of the Workers Compensation Tribunal) Regulations 2016 (SA) reg 4; Supreme Court Act 1935 (SA) s 48, referred to.
Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 185; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, applied.
WorkCover Corporation v Sherriff (unreported, South Australian Supreme Court, Full Court, 1 October 1996, Judg No S5831); Transport Accident Commission v Hoffman [1989] VR 197, discussed.
Wade v SA Water [2015] SAWCT 48; Wade v SA Water [2016] SAET 23; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, considered.

WADE v SA WATER
[2016] SASC 172
Civil
HINTON J.
Introduction

In 1991 Mr Wade suffered a compensable injury in the course of his employment with the Engineering and Water Supply Department (the E&WS), namely, noise induced binaural hearing loss of 14.7%. In November of that year he received lump sum compensation in the sum of $9,459.45 for that injury under s 43 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRCA). In 2012 Mr Wade bought a set of hearing aids. He sought reimbursement for the cost of those hearing aids from SA Water, the corporate successor to the E&WS, under s 32 WRCA contending, in effect, that the cost was incurred in consequence of his 1991 compensable injury. For the purposes of his hearing loss being assessed Mr Wade undertook an audiogram in early 2013 which revealed that his binaural hearing loss had deteriorated substantially. It was now assessed at 56.4%.[1] Because of this Mr Wade made a further claim for an award of lump sum compensation from SA Water.
[1] It was subsequently revised down to 44.9% after treatment resulted in Mr Wade’s left ear being unblocked.
SA Water rejected both claims. Mr Wade then filed notices of dispute in the Workers Compensation Tribunal (the Tribunal). His notices of dispute proceeded to judicial determination.
The notices of dispute were heard by the President of the Tribunal. With the consent of the parties the President determined that the claim for further lump sum compensation was rightly rejected for reasons that are irrelevant to this application. Consequently I say nothing more about it.
The dispute concerning the rejection of the claim for reimbursement of the cost of the hearing aids proceeded to determination. The question for the Tribunal was whether Mr Wade had reasonably incurred a medical expense of a kind described in s 32(2) WRCA in consequence of the noise induced hearing loss sustained by him in the course of his employment with the E&WS and deemed to have occurred in 1991. The President held:[2]
The deterioration in the worker’s hearing loss over the period between 1991 and 2012 was profound. It increased fourfold. The length of time between the accepted compensable disability and the alleged incurring of the expense is very significant. It is more than twenty years. In applying a common sense evaluation I do not consider that there is a sufficient connection between the incurring of the claimed expense and the compensable disability to be able to say that the worker incurred the alleged expense in consequence of the accepted compensable disability. To put it another way, it is, in my view, too far a stretch to say that the worker’s acquisition of hearing aids in 2012, given his then state of hearing, can be said to be in consequence of his hearing loss in 1991.
[2] Wade v SA Water [2015] SAWCT 48 at [45].
Mr Wade appealed to the Full Bench of the South Australian Employment Tribunal (the SAET).[3] He was unsuccessful. He now seeks permission to appeal to the Full Court of the Supreme Court.[4] I determined that it was appropriate to list the application for argument. I am grateful to counsel for their assistance. I would grant permission to appeal. My reasons follow.
[3] The appeal was heard by the SAET pursuant to the Return to Work (Transitional Arrangements) (Dissolution of the Workers Compensation Tribunal) Regulations 2016 (SA) reg 4(b)(ii).
[4] South Australian Employment Tribunal Act 2014 (SA) s 68.
The Full Bench decision
Before the Full Bench Mr Wade argued that the President had erred in three respects. The first and second arguments were interrelated. Here the focus was upon the treatment, or lack of treatment, of the evidence of two ear, nose and throat surgeons, Drs Frayne and Tomich. Mr Wade’s case was that the evidence of these surgeons provided the necessary causal link between the compensable injury and the purchase of the hearing aids in 2012 such as to satisfy the requirements of s 32 WRCA. The treatment of the surgeons’ evidence by the President in his reasons was symptomatic, or at least highlighted, the first complaint, being that the President had erred in law in applying the wrong test to determine whether the cost of the hearing aids was incurred in consequence of the 1991 compensable injury. The second argument complained of inadequate reasons in that, in essence, no analysis of the doctors’ evidence as to the need for hearing aids in 1991 was undertaken. The third argument asserted a lack of procedural fairness in that the President rejected Mr Wade’s evidence of his having purchased a hearing aid in 2002, without providing any indication that he was contemplating doing so, in circumstances where the veracity of that evidence was not challenged by SA Water.
As to the first argument the Full Bench decided:[5]
Turning then to the approach taken by the President, he was of the view the cost of Mr Wade’s hearing aids was not a cost which was reasonably incurred in consequence of a compensable injury. His Honour specifically addressed Mr Black’s argument Mr Wade would have been entitled to the cost of hearing aids in 1991 had he purchased them then. He considered 2012 to be the relevant frame of reference, not 1991. With respect, we agree. …
The President was correct to say he had to answer a question about causation. The phrase “in consequence(s) of” imports a causal connection. Assessing causation in law often involves making a common sense evaluation of the evidence as the President said. Mr Black acknowledged as much when relying upon Male v The Corporation (Target Australia).
(citations omitted).
[5] Wade v SA Water [2016] SAET 23 at [22]-[23].
The Full Bench noted that counsel for Mr Wade had complained that the test for causation adopted by the President focused on there being only one cause for the incursion of the cost of the hearing aids when it was more appropriate to adopt a test that accommodated multiple subsisting causes.[6] The Full Bench did not consider that the President had committed such error:[7]
In having regard to Sherriff, the learned President did not apply an incorrect test and did not misdirect himself as to the law to be applied. In referring to Kooragang Cement, his Honour again directed himself to a passage which emphasised the importance of determining matters on their own facts. His Honour then made a common sense evaluation of the facts of this case to determine whether the cost of the hearing aids had been reasonably incurred. …
(citations omitted).
[6] [2016] SAET 23 at [26].
[7] [2016] SAET 23 at [27].
The reference to Sherriff is a reference to the case of WorkCover Corporation v Sherriff[8] which concerned the test to be applied in determining whether a disability or secondary disability was one that arises from employment within the meaning of s 30 WRCA. The words “arises from employment” required that a causal connection be established between the disability and the worker’s employment. In Sherriff, Lander J, with whom Bollen and Nyland JJ agreed, said:[9]
A disability will not be compensable unless it is established that on the balance of probabilities it arises from employment (s31(1)). In some circumstances the Act provides a presumption in the absence of proof to the contrary that the factual relationship is established (s31(2)). As well, the Act provides a statutory presumption that where a disability consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a pre-existing heart disease, which arises in the course of employment, it will be presumed in the absence of proof to the contrary that the employment contributed to the injury (s31(5)). In other cases it will be for the applicant to establish that the condition from which the applicant suffers is a disability within the meaning of the Act and arises from employment. In the case where there is no statutory presumption it will be for the Review Officer or Tribunal to decide whether the disability "arises from" the employment in the differing ways predicated by s30 of the Act.
That evaluation will not commence and proceed as the Review Officer directed herself but is a factual inquiry, to be approached by a common sense evaluation of the chain of events and at all times applying the words of the Act to the medical condition as factually determined, so that the inquiry is always relevant to a disability, disease or secondary disability and whether any of the particular conditions arise from employment.
In applying that common sense approach the Tribunal of fact will, on occasions, recognise that there is more than one event which might have "caused" the disability. In those circumstances it will still be a question of fact whether the disability arises from employment. It is not, on this legislation, a question whether the employment was a material, proximate, real, or an effective cause, but a question as to whether on the facts as found the employment was significant enough to still be able to say that the proven disability, whether a disability, secondary disability or disease, arises from that employment. It is sufficient in my opinion to adopt the plain meaning of the words in the Act without adding any descriptive adjectives to those words. To determine a test which requires the proof by the worker that the employment was the real cause, the effective cause or the material cause would be to judicially amend the Act. Questions of causation are matters of fact and therefore, no test of causation needs to be propounded except that contained in the Act itself.
It will be the case, as Kirby P has predicted, that subsequent events will occur that break the causal connection between the disability and the employment such that it can no longer be said that the disability arises from employment. When and if that occurs that will be determined as a matter of fact.
In all cases the tribunal of fact is simply called upon to establish whether the facts, as established, allow it to be said as a matter of common sense that the disability proved (which includes a disability, secondary disability or disease) arises from the employment as defined in s30.
[8] (unreported, Supreme Court of South Australia, Full Court, 1 October 1996, Judg No S5831).
[9] (unreported, Supreme Court of South Australia, Full Court, 1 October 1996, Judg No S5831).
I will return to Sherriff below. For now the passage quoted above from the judgment of Lander J explains the conclusion of the Full Bench in paragraph [27], reproduced above, in addition to the conclusion arrived at on this issue. The Full Bench held:[10]
The President said he had to make “a common sense evaluation of the connection between the incurring of the claimed expenses and the compensable disability.” The first part of that phrase uses the same language Lander J used in Sherriff. The second part of the phrase refers to the language and criteria of s 32 of the Act. His Honour directed himself by reference to the requirements of s 32 and found that Mr Wade did not reasonably incur an expense in consequence of his compensable injury when he purchased hearing aids in 2012. That is a finding of fact he was entitled to make. No error of law has been demonstrated by this ground of appeal.
(citations omitted).
[10] Wade v SA Water [2016] SAET 23 at [30].
As to the second argument, the Full Bench held that the President’s reasons were not inadequate for want of dealing with the evidence of the specialists in greater detail. The Full Bench pointed to the President’s acknowledgment of the evidence that the need for hearing aids was always there as of 1991 onwards and that had the applicant purchased the hearing aids at that time there was no doubt his employer would have been liable to reimburse him for the cost. In that regard the Full Bench considered that the President had understood the import of the evidence of the two ear, nose and throat surgeons, and, in particular, Dr Frayne. The Full Bench held:[11]
The President explained the reasoning on which his decision was based. Those reasons are readily understood. The President considered and rejected the primary argument put by Mr Wade. He accepted that a purchase of hearing aids by Mr Wade in 1991 may well have been an expense reasonably incurred in consequence of a compensable injury but did not consider the purchase of hearing aids in 2012 to fit that test because the hearing loss in 2012 was much greater than in 1991, and most of it could not be attributed to employment with SA Water. No error of law is disclosed by this ground.
[11] Wade v SA Water [2016] SAET 23 at [35].
As to the complaint of a failure to afford procedural fairness, the President considered Mr Wade’s evidence that he purchased a hearing aid for use in one ear in 2002 a vague recollection and thought it unlikely that he would have purchased a single hearing aid. He observed that there was no proof of purchase and the cost of the hearing aid was not pursued as the invoice could no longer be found. The President concluded that there was a real risk that Mr Wade was mistaken about the purchase and decided not to accept the evidence.[12] As mentioned Mr Wade complained that his evidence on this issue was not challenged in cross-examination with the consequence that he had no notice of its possible rejection. In those circumstances he contended that it was incumbent upon the President to advise the parties of his concern and afford them the opportunity to be heard. The Full Bench said:[13]
[12] Wade v SA Water [2015] SAWCT 48 at [44].
[13] Wade v SA Water [2016] SAET 23 at [44]-[45].
At the hearing before the President, there was an objection by Mr Colgrave for SA Water about the relevance of evidence sought to be led from Mr Wade that he had a relationship breakdown due to the soft voice of his then partner and his inability to hear her. That objection was sustained, but oral evidence was allowed to be given by Mr Wade about the 2002 hearing aid purchase. Prior to the hearing, in his statement of evidence Mr Wade had said he wore the single hearing aid periodically, mainly when at a social function or when watching television. Wearing the hearing aid made his ear itch, so he didn’t wear it all the time.
There was cross-examination in relation to the 2002 hearing aid:
“The first hearing aid you purchased, you wore that infrequently, didn’t you. You only wore it every now and again? – Yes.
And it was only on one ear? – Yes.
And that was from about 2002? – Yes.
Prior to that time, you hadn’t used a hearing aid at all? – No, no.
And then you say that only lasted for a couple of years that you used one hearing aid at social functions and things like that. Then from about 2004, you didn’t use it all? – No, I sort of – having just the one, it just didn’t seem to work for me too well, and being out on the block and that, in the dust and that a lot of the times, it – and on my own, I didn’t need it. It was only when I’d come inside that I’d put it in mostly to – you know, listen to the TV or Mary-Anne or whatever.
Yes, but you say from around 2004 until 2012 or 2013, and this is at paragraph 54 of your statement that you got by without a hearing aid? – Yes, yes.
So you didn’t even use the one hearing aid at all? – No. I sort of didn’t get along with it that well, and I thought, ‘You know, maybe down the track if they develop them a bit better, I’ll maybe get something down the track’ – you know, hopefully hoping that they would develop them a bit – which they have, they’ve developed them a bit better. Every year or few years, they seem to come up with something a bit better to help you.”
(citations omitted).
From this the Full Bench concluded that Mr Wade should have been aware that there was a challenge to his credibility and to his recall of events. The Full Bench added that the cross-examination suggested that Mr Wade’s purchase and use of the single hearing aid in 2002 was, at least, unusual. The Full Bench noted that counsel for SA Water commenced his closing address by referring to this evidence, criticising it on the basis that it suggested a time of purchase that did not fit with other evidence that Mr Wade had given. The President had reservations about the evidence for other reasons and expressed those in his judgment. The Full Bench held that he was entitled to do so and further concluded that Mr Wade should have been aware that his reliability on matters of history was in issue. The President was under no obligation, it concluded, to forewarn Mr Wade of the possibility that his evidence might be rejected. The Full Bench held that there was no failure to afford procedural fairness.
The draft Second Notice of Appeal
The draft Second Notice of Appeal filed in this Court makes, in essence, the same three complaints as were advanced before the Full Bench. First, it is contended that the Full Bench erred in concluding that the President did not, in applying s 32 WRCA, invoke a test for causation that was erroneous. Second, that the Full Bench erred in concluding that the President provided adequate reasons for finding that the cost of the hearing aids incurred in 2012 was not incurred in consequence of the 1991 compensable injury, despite the evidence suggesting that the injury could have been alleviated by the provision of hearing aids at that time. Third, that the Full Bench erred in concluding that Mr Wade had been afforded an opportunity to be heard and make submissions on whether the evidence as to his purchase of a hearing aid in or around 2002 should be accepted.

Two additional grounds are now raised for the first time. First, that the application could not be disposed of adverse to Mr Wade unless a finding was made that the 1991 compensable injury was not a subsisting cause such that it could be said that the cost of the hearing aids was not incurred in consequence of that injury. Second, that the Full Bench and the President erred in that neither properly assessed whether Mr Wade incurred the cost of the hearing aids in 2012 in respect of the 1991 compensable injury. The argument advanced in support of these grounds concerns the probative value of the purchase of the single hearing aid in or around 2002. It is contended that it was not open to the President to reject that evidence. If that submission is accepted, it is argued that the judicial determination was disposed of on a false basis.
I deal with each of the complaints below.
The jurisdiction of this Court and the test for permission
The right of appeal that Mr Wade seeks to engage in this matter is contained in s 68 of the South Australian Employment Tribunal Act 2014 (SA) (SAETA). It provides:
68—Final appeal to Supreme Court
(1)   Subject to subsection (2), an appeal lies on a question of law against a decision of the Full Bench of the Tribunal to the Full Court of the Supreme Court.
(2)   An appeal cannot be commenced under this section except with the permission of a Judge of the Supreme Court.
(3)   On an appeal to the Full Court of the Supreme Court under this section, the Full Court of the Supreme Court may—
(a)decide the question of law;
(b)refer the matter back to the Tribunal with directions the Full Court considers appropriate;
(c)make consequential or related orders (including orders for costs).
The word decision is defined in s 3(1) SAETA as follows:
decision, of the Tribunal, includes a direction, determination or order of the Tribunal but, in prescribed circumstances, does not include an interlocutory direction, determination or order;
The Tribunal was abolished as of 5 March 2016. Pursuant to the Return to Work (Transitional Arrangements) (Dissolution of Workers Compensation Tribunal Regulations 2016 (SA), a right of appeal against a decision of a single presidential member of the Tribunal is to be treated as a right of appeal under Part 5 SAETA against a decision of the SAET constituted of a presidential member made under the SAETA. Thus the jurisdiction and powers exercised by the Full Bench of the SAET were contained in s 67 SAETA. Section 67 SAETA provides:
67—Appeal on question of law—single Presidential members
(1)     An appeal lies on a question of law against a decision of the Tribunal—
(a)constituted of a single Presidential member; or
(b)… not presently relevant …
to a Full Bench of the Tribunal.
(2)     An appeal under this section must be commenced, heard and determined in accordance with the rules.
(3)     If an appeal is allowed, the Full Bench will endeavour to determine the matter for itself and will not remit the matter for re‑hearing or reconsideration unless exceptional circumstances apply.
(4)     In exercising the power conferred by subsection (3), the Full Bench may draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact.
The decision that Mr Wade contests on this application is the order made by the Full Bench dismissing his appeal.
The right of appeal contained in s 68(1) SAETA is conditioned by s 68(2) SAETA on permission being granted by a single judge of this Court. It is plain that the power vested in the single judge is derived from s 68(2) SAETA and not s 48 of the Supreme Court Act 1935 (SA). Absent a grant of permission there is no appeal proceeding commenced in this Court.
In its application to the WRCA, and now the Return to Work Act 2014 (SA), s 68 SAETA, in combination with this Court’s supervisory jurisdiction, ensures that this Court may superintend the development and application of the law by the SAET. That is, by allowing this Court to examine decisions of the SAET for legal error, the SAET is prevented from developing an island of power disengaged from the integrated Australian judicial system.[14] Whilst the SAETA does not exclude the general supervisory jurisdiction of the Supreme Court, the existence of s 68 SAETA will provide an important discretionary reason for not permitting resort to that general supervisory jurisdiction on the basis that s 68 SAETA provides a suitable alternative remedy. However, for the purposes of these reasons it is important to note that s 68 SAETA provides for the institution of proceedings in the Supreme Court, with permission, in which the legal correctness of what the SAET has done can be challenged.[15] That is important because it informs the content and exercise of the test for permission. Such test should serve the supervisory purpose that underpins s 68 SAETA.
[14] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[15] Consistent with this, bearing in mind the similarly limited right of appeal to the Full Bench, is the clear implication that the Legislature intended that the SAET, when constituted of a single presidential member, was intended to be final in the determination of all issues that do not answer the statutory description of being a decision on a question of law.
It has been held that on an application for permission to appeal under r 288 of the Supreme Court Civil Rules 2006 (SA) permission will be granted if the correctness of the judgment or order appealed against is attended by sufficient doubt such as to warrant a grant of permission, or, substantial injustice will be caused to the applicant if the orders subject of the application are permitted to stand.[16] I consider the application of this approach to an application under s 68(2) SAETA, modified to account for the jurisdiction being limited to questions of law, appropriate.
[16] Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 185 at [21]-[22] (Bleby J, Vanstone and White JJ agreeing).
As to the limited nature of the jurisdiction conferred, quite obviously an appeal to this Court under s 68 SAETA is not at large. It is confined to a question of law. In this regard it should be noted that the appeal is “on a question of law” not “involving a question of law”.[17] As has been said in similar contexts, the question of law is the subject matter of the appeal and the appeal is confined to it.[18]
[17] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1175 (McHugh and Gummow JJ); Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [58]-[61] (Basten JA).
[18] TNT Skypak v Federal Commissioner for Taxation (1988) 82 ALR 175 at 178 (Gummow J).
Section 68(1) SAETA does not limit the conditioned right of appeal to where a decision has been made on a question of law, but, rather, permits an appeal on a question of law against a decision. The difference has the consequence that s 68(1) SAETA embraces an appeal against a decision of the Full Bench on a question of law upon which its ultimate decision is based. That is, an appeal on a question of law against a decision of the Full Bench will arise where the Full Bench has made a direction, determination or order within the meaning of s 3(1) SAETA that necessarily required the determination and application of a principle of law and it is contended that such determination or application was erroneous.
I do not think that construing s 68(1) SAETA in this manner is to alter the appeal from one on a question of law to one involving a question of law. The relevant distinction relied upon here is that made by Young CJ and McGarvie J in Transport Accident Commission v Hoffman.[19] In that case their Honours said in relation to s 52(1) of the Administrative Appeals Tribunal Act 1984 (Vic), which provided for an appeal to the Supreme Court “on a question of law, from a decision of the Tribunal” that:[20]
…It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is it to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal’s decision. …
[19] [1989] VR 197.
[20] Transport Accident Commission v Hoffman [1989] VR 197 at 199.
Causation
At the risk of oversimplification, Mr Wade’s primary argument may be summarised as follows; irrespective of whether his current binaural hearing loss of 44.9% has been contributed to by other causes, a contributing cause remains the incapacity deemed to have occurred in 1991. As such the cost of the hearing aids incurred in 2012 was a medical expense reasonably incurred in consequence of his having suffered a compensable injury within the meaning of s 32 WRCA. In this regard Mr Wade contends that the Full Bench erred in its articulation and application of the test for causation.
This argument is founded on it not being contested that as at 1991 Mr Wade’s binaural hearing loss was such that hearing aids could have been of assistance to him, and that, had he sought hearing aids at that time, his employer would have been liable for the cost thereof. It follows then, Mr Wade contends, that to the extent that he continues to suffer hearing loss, some or all of which he suffers in consequence of his compensable injury, and that such hearing loss may be, and could always be, alleviated by hearing aids, it is arguable that an ongoing cause of his hearing loss is the compensable injury.
Secondary to this argument, Mr Wade contends that he was not afforded procedural fairness at the hearing and that the President’s reasons are inadequate. As mentioned, the first of these grounds deals with the rejection of Mr Wade’s evidence as to the purchase of a hearing aid in 2002 and the second with the treatment of evidence adduced from the two ear, nose and throat surgeons.
I return to Mr Wade’s primary argument. Section 32 WRCA as at September 2012 relevantly provided:
32–Compensation for medical expenses
(1) Subject to this section, a worker is entitled to be compensated for costs of a kind described in subsection (2) reasonably incurred by the worker in consequences of having suffered a compensable injury—
(a) in accordance with a scale published by the Minister under this section; or
(b) if the relevant service is not covered by a scale under this section—to the extent of a reasonable amount for the provision of the service.
I have set out above the conclusion arrived at by the President. The question for the learned President was ultimately one of fact.
It was established that Mr Wade did not seek the assistance of hearing aids in 1991. Expert opinion was divided as to whether, had he sought the assistance of hearing aids in 1991, they would have been recommended. As indicated there was evidence that Mr Wade purchased one hearing aid in 2002, but such evidence was rejected by the President.[21]
[21] Wade v SA Water [2016] SAWCT 48 at [44].
The question arises, is it arguable that the conclusion was founded upon a decision on a question of law that is attended by sufficient doubt to warrant consideration by the Full Court? I do not read the reference to a “common sense evaluation” in the paragraph from the President’s judgment reproduced above[22] as being indicative of the application of a test for causation different to that stated in s 32 WRCA. Rather, the common sense evaluation describes the approach taken to the evidence in determining whether it satisfies the statutory test.
[22] At [4].
The dispute was conducted on the basis that the compensable injury need not be the sole cause. The President stated that, having undertaken a common sense evaluation of the evidence, he did not consider that there was a “sufficient connection” between the cost incurred and the compensable injury.[23]
[23] Wade v SA Water [2015] SAWCT 48 at [45].
On appeal the Full Bench determined that there had been no error in the President’s finding that Mr Wade did not reasonably incur an expense in consequence of his compensable injury when he purchased hearing aids in 2012.[24] They concluded that the President had correctly directed himself by using the same language Lander J had used in Sherriff and by reference to the criteria in s 32 WRCA. I agree.
[24] Wade v SA Water [2016] SAET 23 at [30].
I do not think the approach of the President nor of the Full Bench, in terms of whether each has asked itself the correct question, is attended by sufficient doubt such as to warrant a grant of permission to appeal.
Adequate reasons
I turn to the secondary arguments. There is something to be said for the view that where a tribunal has exceeded the bounds of its legal authority by failing to accord procedural fairness, such error does not constitute a decision of the tribunal on a question of law.[25] Similarly, a failure to give reasons or adequate reasons does not answer the statutory description of a decision on a question of law.[26] Those observations aside, however, the argument advanced in support of the complaint as to adequacy of reasons asserts, in effect, that it was incumbent upon the President to set out the evidence of Drs Frayne and Tomich in sufficient detail to satisfy the reader that the evidence was actually taken into account. Not doing so, it is contended, leads to the inevitable conclusion that the evidence was not considered.
[25] Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1 at 37; Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354.
[26] Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at [130].
Dr Frayne’s evidence was to the effect that the current state of Mr Wade’s hearing loss was the product of noise exposure throughout his working life (i.e. up to when he stopped working in 2007) in addition to age related presbycusis. Dr Frayne said he would have recommended the use of a hearing aid to Mr Wade had he been consulted in 1991 and in cross-examination commented that “the need for the hearing aid was always there, from 91 onwards”.
Dr Tomich gave evidence that Mr Wade’s binaural hearing loss was actually 44.9%, having improved as a consequence of the unblocking of his left ear. He also said that whether or not he would have recommended hearing aids to Mr Wade in 1991, if treating him, was a “50/50 call”. It would have depended upon the inconvenience Mr Wade was suffering in his daily life. Dr Tomich added that Mr Wade would have required a hearing aid at some stage, even if he had not been exposed to noise and that in this regard the reality was that, by virtue of the compensable injury, he had a “head start” on the road to getting hearing aids, the degree of which could not be determined.
Both Drs Frayne and Tomich opined that it was reasonable to conclude that some of the progression of Mr Wade’s hearing loss since 1991 was noise induced and that some of that would have occurred in the last 9 months of his employment (i.e. post the accepted date of his sustaining the compensable injury).
It is true that the President did not summarise the evidence of Drs Frayne and Tomich in great detail. But the law does not require that he do so. Clearly the evidence of Drs Frayne and Tomich was relevant to the question of whether the 1991 compensable injury was a continuing cause such that it could be said that the purchase of the hearing aids was a cost reasonably incurred in consequence of that injury. The high point of such evidence is the statement made by Dr Frayne - “the need for the hearing aid was always there, from 91 onwards”. No doubt Mr Wade had sustained a degree of permanent hearing loss in 1991, but the question was whether the cost of the hearings aids purchased in 2012 when his binaural hearing loss had deteriorated to 44.9% was a cost reasonably incurred in consequence of the 1991 compensable injury.
The logic of the President’s reasoning is, as follows – if Mr Wade did not require hearing aids in 1991 it is difficult to conclude that the cost incurred in 2012 for hearing aids, when his hearing had deteriorated over the intervening period through no fault of the employer, was in consequence of the 1991 injury. I agree with the Full Bench that the significance of Dr Frayne’s evidence did not escape the President. Not only does he summarise Dr Frayne’s evidence in brief but touches upon it a second time in his summary of counsel for Mr Wade’s submissions. In my view the President has considered and rejected the primary argument put by Mr Wade.[27] The President explained that had hearing aids been purchased in 1991 it may have been an expense reasonably incurred in consequence of the compensable injury, but he did not consider such purchase in 2012 to answer the statutory description. The President considered that the hearing loss in 2012 was much greater than in 1991, and most of it could not be attributed to his employment with E&WS.
[27] Wade v SA Water [2016] SAET 23 at [35].
Assuming the ground of appeal attacking the adequacy of reasons is a decision on a question law, I do not consider the Full Bench’s treatment of that question attended by sufficient doubt to warrant a grant of permission to appeal.
Procedural fairness
The third ground of appeal concerns the rejection by the President of Mr Wade’s evidence that he purchased a single hearing aid to use in one ear in 2002.
Without the evidence of the 2002 purchase, Mr Wade’s case could not rise above contending that the permanent hearing loss sustained in 1991 was such that, despite the further and significant deterioration of his hearing loss due to causes for which SA Water was not responsible, the incursion of the cost of purchasing hearing aids in 2012 was nonetheless in consequence of the 1991 compensable injury. Thus the significance of the purchase in or around 2002 lay in the fact that, if accepted, it showed that the need of a hearing aid existed at a time more proximate to 1991. This would therefore suggest it was more likely that the compensable injury had contributed to the need to obtain the hearing aids in 2002 and continuing up to 2012. That, in turn, may provide reason to accept Dr Frayne’s opinion that the need was always present and to conclude that the cost of the 2012 purchase was incurred in consequence of the compensable injury.
The complaint is that Mr Wade was not cross-examined to suggest that he had not bought a hearing aid in or around 2002 and that the President did not advise counsel of his concern with the reliability of Mr Wade’s evidence as to that purchase such that Mr Wade was not put on notice that his evidence might be rejected and thus was not heard on the issue.
I have set out the reasoning of the Full Bench in rejecting this argument at [12]-[13] above.
In my view it is arguable that the Full Bench has erred in its characterisation of the passage of cross-examination referred to above and relied upon as indicating that Mr Wade’s reliability as to the fact of the purchase of the hearing aid in 2002 was in issue. In particular, I think it arguable that the aim of the cross-examiner was to highlight that despite a hearing aid being purchased, it was not really needed. That is, the fact of purchase was accepted but need was disputed. The logic underpinning such approach was that the further in time from the 1991 injury that the need for a hearing aid could be shown to arise, and a hearing aid was not needed in 2002, the less likely it was the product of the compensable injury. If this is accepted, it was not the cross-examiner’s aim to show Mr Wade to be unreliable, in fact, quite to the contrary, the intention was to show him to be reliable in that when he said he did not really need the hearing aid his evidence should be accepted, hence, at no time did the cross-examiner challenge Mr Wade on the fact of his having purchased a hearing aid.

It is beyond doubt that “[p]rocedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power” and to “advise of any adverse conclusion which would not obviously be open on the known material” but is “not otherwise required to expose his or her thought processes or provisional views”.[28]
[28] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).
That Mr Wade was not challenged on the 2002 purchase of a hearing aid by SA Water has two consequences; first, SA Water could not complain if a finding were made against it in relation to such evidence; second, the absence of any challenge provides the trier of fact with good reason to accept the evidence. However, as a matter of law the trier of fact may refuse to accept evidence not challenged and no complaint may be made of such refusal unless it could be considered unreasonable in the legal sense to do so.[29] I do not understand any of these propositions to be novel.
[29] Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 18 (Hunt J); Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 371 (Gibbs J).
Here it may be observed that the argument assumes a complexion little different to that advanced in support of the two grounds advanced in this Court but not before the Full Bench.[30] At the centre of these arguments is the contention that it was not open to the President to reject Mr Wade’s evidence as to the purchase of a single hearing aid in or around 2002. I think that is an issue that is reasonably arguable. In the context of the forensic contest, no party proceeded on the basis that Mr Wade did not buy a hearing aid in or around 2002. The issue was whether or not he needed it. If he did not, that undermined Dr Frayne’s evidence, if he did, it rendered Dr Frayne’s view that the need was always there more likely. The purchase of the hearing aid suggested need, the fact that it was little used suggested the need was less significant. The evidence of the purchase of the hearing aid had some capacity to bridge the gap between 1991 and 2012 such that the compensable injury might be considered a subsisting cause. In my view, if it was not open to the President to reject Mr Wade’s evidence as a matter of law, this latter issue would have had to be addressed. This is because on anyone’s case there was a need for hearing aids earlier than 2012 and possibly at a time such that the 1991 injury may be considered causative of the expense incurred in 2012.
[30] See [15] above.
To accept the contention as arguable is not to suggest that it is arguable that wherever evidence is not challenged a trier of fact must, if it is contemplating rejecting the unchallenged evidence, alert the parties to that intention and give the parties an opportunity to be heard before proceeding. Nor is it to suggest that it is arguable that a trier of fact must expose a provisional view as to the reliability of the unchallenged evidence for comment.[31] Rather the argument advanced in support of the procedural fairness ground and the fresh grounds is erected on the foundation that Mr Wade’s evidence as to the purchase of a hearing aid in or around 2002 could not be rejected as a matter of law. If that contention is made good, and, as I have said, I think that is an issue that is reasonably arguable, the President’s ultimate conclusion is erected on a question of law erroneously determined.
[31] Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2; cited with approval in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [22] (Gleeson CJ, Gummow and Heydon JJ).
SA Water contended that even if it was not open to the President to reject Mr Wade’s evidence as to the purchase of a hearing aid in or around 2002, Mr Wade’s case still lacked sufficient prospects of success. To arrive at such conclusion would necessitate that I conduct an independent assessment of the evidence on the assumption that Mr Wade’s evidence as to the purchase of the hearing aid in or around 2002 was accepted. I have read the evidence given by Drs Frayne, Tomich and Brennan. I did not have the benefit of their reports nor any other exhibit. That is reason enough not to accept SA Water’s invitation, but, in any event, the difference of opinion between the doctors does not allow one to conclude with the requisite degree of confidence that if Mr Wade were to succeed on the grounds of appeal advanced, the result would nonetheless be the same.
Conclusion and orders
Accordingly, for the reasons I have given I would grant permission to appeal on grounds 3, 4, 5, 6, 7 and 8 in the Second Notice of Appeal filed 19 September 2016.