Westpac Banking Corporation v Chauhan - [2019] NSWWCCPD 63

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Westpac Banking Corporation v Chauhan [2019] NSWWCCPD 63
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Madhu Chauhan
INSURER:	Self insurer
FILE NUMBER:	A1-1431/19
ARBITRATOR:	Mr N Read
DATE OF ARBITRATOR’S DECISION:	11 June 2019
DATE OF APPEAL DECISION:	10 December 2019
SUBJECT MATTER OF DECISION:	Approach to expert evidence considered; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 considered
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr Tim Ainsworth, Partner
HWL Ebsworth Lawyers
Respondent:
Mr R Stanton, of counsel
Brydens Lawyers
ORDERS MADE ON APPEAL:	1. Order 1 of the Certificate of Determination dated 11 June 2019 is amended by deleting the date 1 September 2015 and inserting in its place the date 1 September 2017. 2. Otherwise, the Arbitrator’s Certificate of Determination dated 11 June 2019 is confirmed.

INTRODUCTION

This is an appeal by the employer against the Arbitrator’s decision to award the worker weekly benefits compensation and medical expenses in respect of incapacity suffered as a result of aggravation, acceleration, exacerbation or deterioration of the worker’s bilateral cubital tunnel syndrome. In this appeal, the appellant employer takes issue with how the Arbitrator approached the task of considering the expert medical opinion in reaching his ultimate conclusions. The appellant also submits that the Arbitrator erred in failing to consider whether the alleged incapacity was a result of any injury suffered by the worker.

BACKGROUND

Madhu Chauhan, the respondent, is employed by Westpac Banking Corporation, the appellant, as a bank officer working in an in-bound call centre.
Ms Chauhan claimed she suffered an injury to her neck, both elbows and both wrists as a result of excessive typing and using the mouse in the course of her employment with the appellant.
On 1 September 2017 Ms Chauhan reduced her working hours from full time to part time (22 hours per week). She continues to work part time for the appellant undertaking her pre‑injury duties. Ms Chauhan made a claim for weekly benefits compensation from 1 September 2017 and medical expenses.
The appellant issued notices pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 17 May 2016 and 25 August 2017, declining liability.
On 21 December 2018 Ms Chauhan lodged an Application to Resolve a Dispute (ARD), claiming injury to her cervical spine and both elbows and wrists due to excessive typing and use of the mouse during the course of her employment with the appellant since early 2008.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWWCCPD 63
Decision Date: 10 December 2019

CaseChat Overview and Summary

The case of Westpac Banking Corporation v Chauhan involved the admissibility and weight to be given to expert evidence provided by Dr Gupta in the context of a dispute between the parties. The court was tasked with determining whether the expert opinion provided by Dr Gupta was properly based on specialised knowledge and whether it formed a proper foundation for the opinion given. The appellant argued that the connection between Dr Gupta's opinion and the facts was absent, while the respondent maintained that the expert opinion was admissible and should be given weight. The court considered the authorities from cases such as Makita, Paric, and Hancock, which outline the requirements for the admissibility and weight of expert evidence.

The court found that strict non-compliance with the Makita principles does not necessarily render expert evidence inadmissible or of little weight. Instead, the court should consider whether the expert evidence provides a satisfactory basis upon which the tribunal can make its findings. The court also noted that there may be other admissible evidence available to substantiate the opinion of an expert. In this case, the court found that the learned arbitrator had correctly assessed the expert testimony in accordance with the relevant authorities and had not erred in his approach.

The court ultimately upheld the certificate of determination issued by the arbitrator, with a minor amendment to the date specified in Order 1. The court confirmed the arbitrator's decision, finding that it was correct and that the expert evidence provided by Dr Gupta was admissible and of appropriate weight. The court's decision highlights the importance of properly assessing expert evidence in accordance with the relevant legal principles, while also acknowledging that strict compliance with every aspect of the Makita principles is not always necessary.

Orders

Orders of the court

1. Order 1 of the Certificate of Determination dated 11 June 2019 is amended by deleting the date 1 September 2015 and inserting in its place the date 1 September 2017.

2. Otherwise, the Arbitrator’s Certificate of Determination dated 11 June 2019 is confirmed.

Background

Background to the litigation

And further:“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’ (at [41]).[61] (emphasis added)[61] Makita, [85]. In this case, the appellant mounts its argument upon an allegation that the relevant connection between Dr Gupta’s opinion and the facts is absent and consistent with the remarks outlined above from Makita, Dr Gupta’s opinion should be accorded little or no weight. The contrary proposition maintained by Ms Chauhan, as I have described above, relies upon cases such as Paric and Makita. In Paric, Samuels JA found as follows:“I have myself looked at the evidence and looked at the hypothetical facts and while I would agree that in some respects the material put does differ in terms from what was proved, all in all I would regard it as open to the tribunal of fact to consider that it was a fair foundation and remains a reasonable support for the opinions which were sought and given.We were referred to Wigmore on Evidence, 3rd ed, vol II, s 680 and foll at 6, in which this area of the law is discussed. In a footnote which I find in the 1940 edition (at 800), there is a reference made to a decision of Boardman v Woodman (1866) 47 New Hampshire 135. I confess I have not looked at the original report, but the passage extracted by the learned author, which I would fully accept as accurate, is as follows:‘… so proved as to resemble as near as may be the case under consideration; the jury can judge whether the case supposed is so far like the one they are considering as that the opinion of the expert on the supposed case is any guide to them.’Furthermore, there is another reference in a footnote to the same section, and this is in the 1979 edition (at 942). This is a reference to a Wyoming case, Culver v Sekulich (1959) 80 Wyoming 437 at 458. It is in these terms:‘From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses.’I would respectfully adopt that last statement as exactly in point and its application disposes of both aspects of the problem to which I have earlier referred. It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”[62] (emphasis added)[62] Paric, 509–510.

Evidence

Evidence Before The Court

From [79] onwards in Hancock, Beazley JA dealt with the application of Makita to proceedings in the Workers Compensation Commission. Her Honour (as she then was) found as follows:“82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone. 83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.” (emphasis added) Based upon a consideration of the authorities described above, I do not accept the appellant’s essential submission that strict non-compliance with Makita is fatal to the learned Arbitrator placing any reliance upon Dr Gupta’s report. I do not read the authorities of Makita, Paric and Hancock as necessarily presenting an either/or choice for a decision maker. In my view, Makita sets out in comprehensive terms the proper approach for the tribunal of fact when considering expert evidence. In Makita, Heydon JA himself refers to Paric and acknowledges that an opinion will be admissible and material even though the facts established may not correspond with complete precision.[64] I do not therefore read Makita as standing for the rather stark proposition asserted by the appellant in this matter, that namely if the facts are not proven to substantiate the opinion, the opinion is inadmissible or ought be accorded little or no weight. At [64] of Makita, Heydon JA acknowledges that “other admissible evidence may be available to substantiate the opinion”.[64] Makita, [64]. Makita of course was decided before Hancock. Hancock specifically dealt with how Makita is to be applied in the context of a tribunal not bound by the rules of evidence. As described above, Beazley JA says that strict compliance with each and every feature referred to by Heydon JA in Makita is not required. What is required is for the Commission to be satisfied that the expert evidence provides a satisfactory basis upon which the Commission can make its findings. The approach taken in the Commission is as outlined above in cases such as Paric and Hancock, and it is through this lens that I will examine whether or not the learned Arbitrator was correct in his approach to assessing the expert testimony. In this regard I do not read the appellant’s submissions as being grounded wholly on a strict application of the Makita principles. Rather I think a fair reading of the appellant’s submissions with respect to Ground One do take sufficient issue with respect to the approach to the expert testimony such as to require assessment as to whether or not such evaluation was undertaken in accordance with authority.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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