Woolworths Group Limited v Moriarty
[2025] NSWPICPD 64
•8 September 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Woolworths Group Limited v Moriarty [2025] NSWPICPD 64 |
APPELLANT: | Woolworths Group Limited |
RESPONDENT: | Timothy Moriarty |
INSURER: | Self-insured |
FILE NUMBER: | A1-W4087/24 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 8 September 2025 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal the interlocutory decision dated 29 November 2024 pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 2. The determination that the respondent suffered a work-related injury on 11 May 2016 is confirmed. 3. Award for the appellant in respect of the allegation that the injury on 13 August 2017 resulted from the injury on 11 May 2016. 4. The respondent’s employment was a substantial contributing factor to the injury on 11 May 2016. 5. The referral to a Medical Assessor dated 29 November 2024 for assessment of the respondent’s whole person impairment is revoked. 6. The Matter is remitted to a different member for determination as to whether the seizures after 11 May 2016 result from the injury on 11 May 2016. |
CATCHWORDS: | WORKERS COMPENSATION – Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – the correct approach to be adopted on appeal in determining allegations of factual error – State of New South Wales v Culhana [2025] NSWCA 157; Warren v Coombes [1979] HCA 9; Fox v Percy [2003] HCA 22 considered and applied – section 294 of the 1998 Act; Rule 78 of the Personal Injury Commission Rules 2021 – adequacy of reasons – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Mifsud v Campbell (1991) 21 NSWLR 725; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6 considered and applied – inferential findings – Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; Luxton v Vines [1952] HCA 19; Jones v Dunkel [1959] HCA 8 considered and applied – section 9A of the Workers Compensation Act 1987 – whether employment a substantial contributing factor to the injury – Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr B Jones, counsel | |
| BBW Lawyers | |
| Respondent: | |
| Ms E Grotte, counsel | |
| Somerville Laundry Lomax Solicitors | |
DECISION UNDER APPEAL: | Moriarty v Woolworths Group Limited W4087/24, 29 November 2024 |
MEMBER: | Mr M McGrowdie |
DATE OF MEMBER’S DECISION: | 29 November 2024 |
INTRODUCTION AND BACKGROUND
Mr Timothy Moriarty (the respondent) was employed by Woolworths Group Limited (the appellant) as a butcher. On 11 May 2016, in the course of his employment, the respondent was stacking frozen chickens and chicken products that were stored in the cold room in boxes on trolleys into the public fridges and freezers. The respondent could not recall what occurred next. His next recollection was that he became conscious in Tweed Heads Hospital with a severe laceration to his head.
The respondent formed the view that one of the boxes must have fallen on his head when he was bending down to retrieve chicken from the trolley. He lodged a claim for workers compensation, which was denied by the appellant.
The respondent commenced proceedings in the Personal Injury Commission (the Commission), asserting injury to his lumbar spine, cervical spine and nervous system and claiming lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), as well as treatment expenses pursuant to s 60 of the 1987 Act. The injury was described as:
“a work injury on 11 May 2016 being a traumatic head/brain injury resulting in persistent dizziness, headaches, vertigo and instability/recurrent falls and seizures. On 13 August 2017 the [respondent] received a further traumatic brain injury/subdural haematoma as a result of a fall resulting from the injury on 11 May 2016. The further traumatic brain injury has caused further seizures as well as physical and cognitive/neurologic deficits.
In the alternative, in addition the [respondent] has sustained an incomplete cervical cord lesion resulting in physical and cognitive/neurologic deficits.”
The dispute proceeded to conciliation before Member McGrowdie who directed the parties to lodge written submissions. The Member delivered an oral decision and issued a Certificate of Determination on 29 November 2024 in which he found in favour of the respondent in respect of the injury on 11 May 2016 and the incident on 13 August 2017 and remitted the matter to the President of the Commission for referral to a Medical Assessor for assessment of his whole person impairment of the nervous system.
The appellant appeals the Member’s decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the appeal to be determined on the basis of the documents and submissions made and they agree that an oral hearing is not required.
I have had regard to Procedural Directions PIC2 and WC3; the documents and the submissions by the parties, including the submissions that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
Both parties are of the view that the decision appealed is not an interlocutory decision as the Member made a final determination in respect of the question of injury, so that leave pursuant to s 352(3A) of the 1998 Act is not required. Subsection 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
A “decision” is defined in subs 352(8) of the 1998 Act to include “an award, interim award, order, determination, ruling and direction”. The meaning of “interlocutory” in subs 352(3A) is undefined.
The proceedings remain on foot and the respondent’s claim for lump sum compensation and treatment expenses have yet to be determined. The decision, therefore, does not truly finally determine the rights of the parties.[1] It is thus an interlocutory decision.
[1] Licul v Corney [1976] HCA 6; P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87.
If leave is not granted, the matter will require assessment by a Medical Assessor and a Medical Assessment Certificate and subsequently a Certificate of Determination will be issued, before the appellant can appeal the decision. This would involve significant delay in the resolution of the proceedings, and, if the appeal was successful, the expenses and other resources utilised in conducting a medical assessment would have been wasted. I therefore grant leave pursuant to s 352(3A) of the 1998 Act for the appellant to appeal the interlocutory decision.
THE EVIDENCE
The respondent’s statement evidence
The respondent completed an Injured Worker Statement Form on 30 June 2016.[2] He indicated that he was packing shelves in the meat department at the time of the injury. He said he suffered a hole in his head but he could not recall how that occurred or what happened and could not recall if there were any witnesses.
[2] Reply to Application to Resolve a Dispute (reply), pp 4–5.
The respondent provided a statement dated 4 July 2023.[3] He gave a history of his continuous employment as a butcher in various locations leading up to his employment with the appellant. He stated that, prior to the injury on 11 May 2016, he had never experienced any epileptic or neurological symptoms at all. He described his pre-injury recreational activities, which included surfing, body surfing, paddleboarding and skateboarding with his daughters. He said that he had been unable to engage in those activities since 11 May 2016.
[3] Application to Resolve a Dispute (ARD), pp 1–3.
The respondent said that on 11 May 2016, he commenced work at 7.00 am, stacking frozen chickens and chicken products from boxes on a trolley into the public freezer. He said that the boxes weighed between 10 and 20 kilograms each and he was required to continually transfer the product from various places on the trolley to the shelves. He indicated that he did not remember anything further until he woke up in hospital.
The respondent surmised that while performing the task of stacking the shelves, one of the boxes near the top of the trolley may have moved and fallen on his head when he was kneeling or crouching to retrieve product from the lower shelves of the trolley. He advised that there were cameras throughout the store, but the appellant had not made the CCTV footage available. He stated that he had asked several of the appellant’s employees about what had happened, but they advised that they had been told not to speak about it.
The respondent said that he was in hospital for a day but was feeling quite unwell after being discharged and was experiencing dizziness and light-headedness. He stated that he was off work for 6 weeks before returning to full time work, performing his pre-injury duties. He said that while he was off work, he had been re-admitted to hospital several times, and when he returned to work, he found it difficult to perform his usual duties and regularly had to take time off work because of severe difficulties and persistent headaches. He indicated that the symptoms of vertigo, headaches and unsteadiness persisted.
The respondent described a further incident that occurred on 13 August 2017 after he attended the local tavern which was about 200 metres from his home, where he had consumed about three or four beers between 6.30 pm and about 8.00 pm. He indicated that he bought a pie from the local pie shop and was walking home but could not recall anything after that until he woke up in the Gold Coast Hospital. He advised that he underwent surgery to remove a blood clot in his brain and remained in hospital for four weeks.
The respondent indicated that after he was discharged from hospital, he continued to experience headaches, dizziness, vertigo and unsteadiness, which had all been present since 11 May 2016, and he had suffered three seizures. He said that on about 22 April 2018, he was again admitted to Gold Coast University Hospital after a further seizure.
The respondent reported that he returned to work with a different employer, working 15 flexible hours per week making sausages and crumbing products in a butcher’s shop owned by a friend. He said that despite the fact that those duties were very light, he struggled with them until he suffered a stroke in early August 2019 and was re-admitted to the Gold Coast Hospital. He indicated that after the stroke, he developed semi-paralysis down his right side, which had not happened before and persisted, and because he could not hold a knife in his right hand he could not return to work.
The respondent completed an earlier statement dated 26 September 2019, which was consistent with the statement summarised by me above.[4]
[4] Reply, pp 6–7.
Ms Sonia Mahoney, Store Services Compliance Officer
Ms Mahoney provided a statement dated 10 July 2024.[5] She stated that she was the appellant’s Store Services Compliance Officer and was employed by the appellant when the incident occurred on 11 May 2016. She indicated that she did not witness the incident, but she was at work that day and attended the respondent immediately afterwards. She said that when she arrived the respondent was lying on the shop floor in front of the meat section and there was a pool of blood under his head. She indicated that she did not recall seeing any boxes of chicken in the vicinity and did not know of any witnesses to the incident. She observed that the area where the respondent lay was the meat section in the general public area which was not where staff would be carrying or unpacking frozen chickens.
[5] Application to Admit Late Documents dated 11 July 2024, p 1.
The NSW Ambulance records
The NSW Ambulance medical record dated 11 May 2016 recorded that the ambulance crew attended the appellant’s premises at 7.15 am on the date of the injury. The notes indicate that on arrival, the respondent was laying on the floor after having been found on the ground by a shopper and had a laceration in the parietal region. The notes recorded “fitting episode 30 seconds” and that the respondent was “amnesic” to the event. Reference was made to “Seizures” and “Head Injuries”.[6]
[6] Reply, pp 46–50.
The Incident Detail Report[7] referred to “FITTING” and indicated that “this is apparently a generalised ‘grand mal’ fit.” A fall was noted, and that the respondent had “ALSO HIT HEAD ON THE GROUND”[8] (emphasis in the original).
The medical evidence
[7] Reply, pp 51–54.
[8] Reply, p 52.
The Tweed Hospital clinical notes
The Tweed Hospital discharge summary and referral notes were in evidence.[9] The documents recorded that on 11 May 2016 the respondent was brought in by ambulance suffering a head injury and was experiencing seizure activity. The notes recorded that he had been found by co-workers on the floor of the cold room at work and he appeared to have been suffering a seizure. It was recorded that the respondent had recently cut down on alcohol intake, having previously imbibed approximately 12 standard drinks per night, had stopped drinking any alcohol two days prior but had four standard drinks the night before admission. It was noted that the respondent had previously had a section of his right lung removed because of melanoma but was otherwise well and he had not seen a doctor for four years. The injury was recorded as a laceration to the right occiput. An MRI scan disclosed no metastatic melanoma lesions, no intracranial haemorrhage or fractures and a CT scan of the brain and cervical spine showed no spinal fracture or acute intracranial pathology. The orthopaedic intern queried whether the seizure was secondary to a traumatic injury or resulted from an underlying condition.
[9] ARD, pp 134–138.
A CT scan of the brain was conducted on 11 May 2016 and showed no abnormality.[10] A further CT scan of the head dated 19 May 2016 showed a small right parietal haematoma as the only abnormality.[11]
[10] Reply, p 1429.
[11] ARD, p 323.
The Gold Coast Hospital and Health Service clinical notes
A discharge summary from the Gold Coast Hospital dated 20 May 2016 recorded that the respondent had presented to the hospital on 19 May 2016 with a seven-day history of worsening dizziness, vertigo and vomiting following a head injury. A CT scan of the head was reported as normal, and it was considered that an MRI scan of the head should be performed in order to exclude brain metastases due to melanoma.[12]
[12] ARD, p 330.
A further discharge summary dated 29 August 2017 recorded that the respondent had been admitted to that facility on 13 August 2017 following a fall “with headstrike and LOC in the setting of intoxication”. The principal diagnosis was of an “acute right traumatic subdural haematoma”, “left temporal bone fracture with burst temporal lobe” which required an emergency decompressive craniotomy and removal of a floating bone.[13]
[13] ARD, p 844.
Robina Medical Centre & Dental Care clinical notes
The respondent consulted Dr William Josephsen, general practitioner at the above medical practice, on 12 May 2016. Dr Josephsen recorded that the respondent had suffered a head injury and had probably been hit on the head, was knocked out and subsequently suffered a seizure. He noted that the respondent complained of a headache.[14]
[14] ARD, p 991.
On 16 May 2016, Dr Kevin Chamberlain, general practitioner, who was practising from the same medical centre recorded that the respondent continued to experience headaches. He said that it appeared from the photo of the wound that the respondent had been hit with something sharp. He noted that the respondent had no recall of what happened.[15]
[15] ARD, p 991.
Dr Chamberlain provided a report dated 4 April 2018 directed to Windsor Income Protection Pty Ltd.[16] He indicated that the respondent had a long history of alcohol abuse and in those circumstances had no memory of the fall on 11 May 2016, in which the respondent was found on the floor of the appellant’s premises with a laceration to his head.
[16] ARD, pp 884–885.
Dr Chamberlain reported that the respondent presented to Gold Coast University Hospital on 13 August 2017 following another fall in the context of intoxication, in which he lost consciousness. Dr Chamberlain said that the respondent suffered a temporal bone and subdural haematoma requiring surgery.
Dr Chamberlain advised that the respondent attended his surgery on 19 February 2018, having suffered a further seizure after he ceased taking Dilantin, which was anti-seizure medication. Dr Chamberlain expressed the view that on the basis of the time that had elapsed since the injury on 11 May 2016, and the severity of the injury on 13 August 2017, the epileptic incident on 4 February 2018 was likely to have been attributable to the injury on 13 August 2017. He indicated that he had been encouraging the respondent to cease alcohol since his first consultation with him. He asserted that he had never advised the respondent to cease his medication.
On 28 March 2018, Dr Josephsen recorded that the respondent’s situation was very complicated. He noted:
“In May 2016 he was found unconscious with subdural haematoma which required surgery. There was puncture wound in skull. He is long standing alcoholic which I have told him to cease. His problem is that if he ceases he could have grand Mal epilepsy. He must continue on therapy.”[17]
[17] ARD, pp 987–988.
Dr Joseph Garcia-Redmond, neurosurgery Registrar, Gold Coast University Hospital
Dr Garcia-Redmond reviewed the respondent on 3 October 2018 in respect of the surgery performed in 2017 to evacuate the respondent’s subdural haemorrhage following the respondent’s traumatic brain injury. He described the respondent’s history as “complex”, commencing with a tonic clonic seizure in February of 2018, which was precipitated by the respondent ceasing his anti-seizure medication and withdrawal from alcohol.[18]
[18] Reply, p 1412.
Dr Paul Teychenné, consultant neurologist
Dr Teychenné examined the respondent and provided a report dated 30 September 2018 at the request of the respondent’s legal representatives.[19] He took a history of the injury on 11 May 2016, noting that the respondent could not recall what had happened. He noted that the treating physicians had surmised from the fracture of the skull that “Apparently, he was hit over the back of the right occipitoparietal region with a steel ball hammer.”[20] Dr Teychenné said that the respondent reported that when the respondent awoke in hospital, and for about three days thereafter, he felt paralysed from the mid-chest down which improved after six months.
[19] ARD, pp 14–25.
[20] ARD, p 15, report dated 30 September 2018, p 2.
Dr Teychenné recorded that when the respondent became conscious, he had an intense throbbing headache and on the following day felt quite faint, his head was spinning, he had an imbalance on the left and right-hand sides, and he was very unstable for about a month. He said that the respondent complained of continuing instability and dizziness, headache associated with nausea and vomiting, loss of balance and a tremor in his limbs. He added that from about three months after the injury, the respondent began to experience episodes of numbness and pins and needles from the upper chest, down the left side and into the left arm and left leg, with weakness in the left arm.
Dr Teychenné recorded the history of, and the circumstances surrounding, the second injury on 13 August 2017. He noted that since that injury the respondent experienced difficulty with concentration, became forgetful and was easily distracted.
Dr Teychenné performed a physical examination. He reviewed the clinical notes of the Tweed Hospital and Gold Coast Hospital, the CT scans of the brain and cervical spine and the respondent’s alcohol intake at around the time of the injury. He said that the CT scan of the brain undertaken on 14 August 2017 showed a large right-sided sub-dural haematoma, a left haematoma and a temporo-parietal bone fracture. He noted the history of the injury on 11 May 2016 and the respondent’s presentation to the Gold Coast University Hospital two weeks prior to the consultation with him, after the respondent had a seizure following withdrawal of anti-epileptic medication.
Dr Teychenné said that the size of the head injury that occurred on 11 May 2016 was consistent with being hit with the ball of a hammer.
Dr Teychenné observed that “A chronic subdural haematoma eventually resulting in such a significant midline shift would likely have been symptomatic prior to the fall on 13 August 2017.”[21] He commented that the respondent’s urinary and bowel symptoms and muscle weakness may have been more in keeping with a cervical cord lesion. He added that the respondent’s excessive consumption of alcohol would render him more susceptible to suffering a traumatic subdural haematoma following a fall involving a strike on the head.
[21] ARD, p 21, report dated 30 September 2018, p 8.
Dr Teychenné assessed the respondent’s loss of balance, tremors and slow responses. He observed that those symptoms could be consistent with a cervical spinal lesion but would also be consistent with a previous acute subdural haematoma and midline shift. He considered that the symptoms were more likely attributable to a spinal lesion. He described the symptoms that indicated the presence of a spinal lesion and recommended further radiological investigations in the form of MRI scans of the brain, cervical spine and thoracic spine. Dr Teychenné considered that the respondent’s injuries resulted from the incident on 11 May 2016, and that that injury was consistent with an impact on the head by a ball hammer. He added that the respondent’s unsteadiness could have been attributable to a combination of alcohol use and the acute traumatic subdural haematoma with a midline shift.
Dr Teychenné provided a supplementary report dated 9 June 2020.[22] He observed that the photograph that was taken of the respondent’s skull following the May 2016 injury showed a deep laceration through the skin and probably to the scalp bone. He considered that the laceration could well have been caused by the respondent being hit on the head by a box of chickens, particularly by the corner of the box, which could have caused the respondent’s unconsciousness. He said that the respondent had never experienced an epileptic fit before that incident, however, he noted that the respondent was said to have been suffering seizures at the site of the incident. He said that the respondent did have a history of alcohol intake and conceded that that could cause seizures.
[22] ARD, pp 80–81.
Dr Teychenné considered that it was possible that the mechanism of being injured by the corner of the box falling on his head could have led to seizures, dizziness, light-headedness and paraesthesia. He observed that the seizures may have occurred because the respondent’s alcohol intake made him more prone to those occurring, although there had not been any seizures before the event. He further observed that the dizziness and light-headedness could have been the result of the concussive head injury. He described the respondent’s injury as a mild traumatic brain injury, which he said could have caused the respondent’s blackout and a further seizure on 19 May 2016 when he re-presented to hospital.
Dr Teychenné provided a further report dated 2 November 2022.[23] He took a detailed history of the incidents in May 2016 and August 2017, and the symptoms attributed to those injuries. He performed a thorough physical examination. He repeated the circumstances surrounding the injury on 11 May 2016, as set out in his report dated 30 September 2018. He summarised the information recorded in the discharge summaries from the Gold Coast Hospital dated 19 May 2016, 13 August 2017 and the Gold Coast University Hospital dated 4 February 2018.
[23] ARD, pp 84–96.
Dr Teychenné referred to the history provided by the respondent to him at the assessment (which was on 23 March 2022) and the clinical picture presented. He considered that the clinical picture was “quite” consistent with an incomplete cervical cord syndrome. He indicated that the respondent was experiencing “upper motor neuron weakness in the upper limbs and intrinsic hand muscle weakness and myelopathic weakness in the lower limbs.”[24] He provided a detailed account of the respondent’s difficulties throughout his body. Dr Teychenné observed that features of the respondent’s presentation were consistent with an incomplete cervical lesion, however he noted that the respondent had also suffered an intracranial haemorrhage with midline shift which could potentially result in upper motor neuron weakness, myelopathic weakness and the respondent’s imbalance.
[24] ARD, p 91.
In response to queries made by the respondent’s legal representatives, Dr Teychenné indicated that it was “extremely difficult” to conclude whether the incident on 13 August 2017 and the stroke suffered by the respondent in August 2019 were causally related. He observed that the respondent had a history of drinking alcohol to excess and had consumed four glasses of alcohol prior to the fall on 13 August 2017, and the respondent most likely sustained a head injury causing an intracranial haemorrhage. He indicated that the respondent’s prior history of drinking alcohol would probably make him more susceptible to an intracranial haemorrhage. He added that imbalance was also common following an incomplete cervical lesion and in the August 2017 incident the respondent may have tripped because of that imbalance.
Dr Teychenné concluded that if the respondent had an incomplete cervical lesion that resulted from the first injury, then the two later incidents in August 2017 and August 2019 could be causally related to the first injury which occurred at work. He considered that the apparent stroke suffered by the respondent in August 2019 may have been a consequence of the combination of a traumatic brain injury and an incomplete cervical cord lesion. He said that the respondent’s slurred speech, drop of the right lip and dribbling was indicative of a brainstem lesion, probably sustained on the right-hand side, and the clenching and flexing of his limbs was consistent with an incomplete cervical cord lesion. He concluded that it was thus arguable that the incident on 13 August 2017 and the apparent stroke in August 2019 were causally related to the injuries sustained at work on 11 May 2016.
Dr Teychenné proceeded to assess the respondent’s whole person impairment.
Dr Teychenné provided a further lengthy report dated 27 July 2023 which appears to be a reproduction of the earlier report dated 2 November 2022. That report adds nothing further to his evidence.[25]
[25] ARD, pp 120–133.
On 17 May 2024, Dr Teychenné responded to further queries from the respondent’s legal representatives in respect of the question of causation.[26] He said:
“In a note on 5 June 2020 to [the respondent’s legal representative] I agreed that the laceration and deep puncture wound could well have been caused by a box of chickens falling onto [the respondent’s] head. I noted that while he had a history of alcohol intake, he had not had any seizures prior to the injury. He was apparently fit at the time of the accident. I considered that it was feasible that he was hit over the top of the head by the corner of a chicken box and this rendered him unconscious with subsequent seizure activity. It is apparent that if there was CCTV footage it should be made available to clear this dispute as to whether [the respondent] was hit over the head and had a seizure or whether he had a seizure and fell to the ground. It does appear from the description that he was probably hit over the top of the head by the corner of a chicken box. Apparently, his head wound was consistent with a potential impact from the corner of a chicken box. This is the best that I can conclude considering the limited data available in regard to the injury.”[27]
[26] ARD, pp 1001–1003.
[27] ARD, p 1003.
Dr Paul Robinson, orthopaedic surgeon
Dr Robinson was asked by the appellant’s legal representatives to examine the respondent and provide a report. He reported on 5 June 2019.[28] He referred to the opinion expressed by Dr Teychenné in his first report and observed that, because Dr Teychenné assessed the respondent in terms of the central and peripheral nervous system, which was not Dr Robinson’s area of expertise, he would not comment on Dr Teychenné’s opinion.
[28] ARD, pp 38–45.
Dr Robinson took a consistent history of the circumstances in which the injury on 11 May 2016 occurred, noting that the respondent could not recall what had actually happened. He reported that, following the first injury, the respondent complained of headaches, dizziness, experienced numbness and weakness in his hands, and was unable to walk properly. He further noted that the respondent complained of bowel and urinary issues.
Dr Robinson took a history of the further fall on 13 August 2017 which resulted in surgery to treat the intercranial haemorrhage, hospitalisation for 17 days, followed by numerous falls resulting from unsteadiness and loss of balance. He noted the respondent’s ongoing complaints of constant headaches, neck stiffness, paraesthesia down the left arm and occasionally in the ring and little fingers. He referred to the respondent’s past history of heavy alcohol intake, cigarette smoking and occasional cannabis use. He recorded that at the time of writing the report, the respondent continued to drink between three to six schooners per day.
Dr Robinson examined the respondent and reviewed the photograph of the respondent’s skull as well as the radiological investigations. Dr Robinson noted that the exact cause of the fall had still not been identified. He said that the respondent subsequently experienced more falls resulting in further pathology and instability. Dr Robinson considered that the history provided by the respondent was not reliable. He said that he believed that the May 2016 fall was caused by a metabolic or medical problem rather than an incident attributable to his employment, or an external trauma, although that was a subjective, rather than a definitive opinion.
Dr Robinson observed that he did not believe that the respondent suffered an acute injury to his cervical or lumbar spines. He was of the view that there was no evidence of a radicular problem with either the cervical or lumbar spine and there were underlying degenerative changes in the cervical spine reported in the radiology. He reiterated that the fall occurred at the respondent’s place of work and the cause of the fall was unknown so that he believed there was a constitutional or metabolic issue. He observed that the incident on 13 August 2017 caused an intracranial haemorrhage which required operative intervention, however the respondent’s employment could not have been a contributing factor to that injury.
Dr Robinson considered that the injury on 11 May 2016 may have produced the problems identified by Dr Teychenné but the cause of the accident was unknown and thus could not be attributed to a work injury. He pointed out that metabolic problems could have caused the fall and the subsequent problems. He considered that there was no doubt that alcohol intake, if used at the time, could have contributed to all of the respondent’s problems, particularly to the incident in 2016 and even more so to the incident in August 2017. Dr Robinson said that he believed that the respondent had a constitutional problem and advised that the respondent should continue to receive neurological treatment from his treating doctors.
Dr Paul Carney, neurosurgeon
Dr Carney was asked by the appellant’s legal representatives to examine and provide an opinion. He reported on 5 June 2019.[29] Dr Carney took a brief history of the injury on 11 May 2016. He examined the photograph taken of the respondent’s skull, which he thought looked suspiciously like a blow to the head, rather than from a fall. Dr Carney noted that the respondent thereafter complained of dizziness, headaches and an inability to walk properly.
[29] ARD, pp 46–53.
Dr Carney took a history of the incident on 13 August 2017 when the respondent had attended the local hotel and consumed four beers before walking home. He recorded that the respondent could not recall what happened, but was apparently found in a laneway and taken to hospital, where he underwent a major craniotomy, remained in hospital for 3 to 4 weeks and was prescribed Dilantin, an anti-epileptic medication.
Dr Carney referred to the respondent having a further seizure while watching television on 1 October 2018. He said that the respondent could not recall what had happened and he woke up in hospital. Dr Carney said that the respondent was put under the care of a neurologist and provided with medication but experienced a number of further falls causing injury.
Dr Carney reported that the respondent complained of dizziness and loss of balance and experienced issues with his memory and concentration. He said that the respondent was advised to give up alcohol but that he continued to drink 3 or 4 schooners per day and continued to infrequently smoke cannabis. Dr Carney conducted a cognitive examination, noting that the respondent showed some cognitive deficit, and noted that there was no generalised neurological abnormality on observations of the limbs, other than minor imbalance.
Dr Carney referred to the reference in the ambulance note that the respondent was having “seizure activity” when discovered by co-workers on the floor of the appellant’s premises and that the respondent had cut down on his previous intake of 12 schooners per day, had abstained from the Sunday prior to the injury but had 4 standard drinks the night before the incident in May 2016.
Dr Carney noted that the history of the incident on 13 August 2017 as recorded by Dr Teychenné was consistent with the respondent’s description and, in his view, suggested that the respondent had either a seizure or a fall causing a blow to the head.
In respect of the injury on 11 May 2016, Dr Carney did not consider it likely that a blow to the head from a hammer was the cause because there was no record of any skull fracture and such a blow was unlikely to cause a person to lose consciousness. He said that, in the absence of further information, he was unable to say whether the respondent’s employment was a substantial contributing factor to the injury, other than to say that the injury occurred at work.
Dr Carney said that the injury on 13 August 2017 appeared to have been either an epileptic seizure or a fall causing a blow to the head, complicated by a subdural haematoma requiring surgery. He considered that, if the first injury caused the epilepsy, and the incident on 13 August 2017 was epileptic, then the respondent’s employment would be a substantial contributing factor. He said, however, that there were multiple potential causes of epilepsy, including alcohol intake and alcohol withdrawal, and it may be a contributing factor that the respondent ceased taking his medication.
Dr Carney indicated that he did not find any evidence of an incomplete cervical cord lesion and opined that there was no basis for the theory that the respondent suffered weakness in the lower limbs which contributed to the fall on 13 August 2017. He concluded that there was no work-related connection to that fall. He remarked that the respondent suffered from epilepsy and that it was entirely possible that the epilepsy caused both, or even all of the falls. He added that excessive alcohol intake, particularly if combined with ingestion of Diazepam or with withdrawal from Diazepam, may have contributed to the epilepsy. He observed that, provided the respondent continued to take anti-convulsive medication, he was unlikely to suffer further epileptic seizures.
Dr Ross Mellick, neurologist
Dr Mellick was asked by the appellant to examine the respondent and to provide an opinion on causation. He reported on 2 November 2023.[30] He recorded a history of the respondent’s duties on 11 May 2016, which involved the respondent filling shelves with chickens from boxes that were stacked on a trolley which was about six feet high, at times having to kneel to put the boxes on the lower shelf. He noted that the respondent had no recollection of what occurred from that time, however, he was found in an unconscious state on the floor of the appellant’s premises. He said that the respondent regained awareness in the ambulance as he was taken to Tweed Heads Hospital.
[30] Reply, pp 1419–1428.
Dr Mellick said that the respondent’s daughter attended the hospital that afternoon and observed that the respondent was a little unsteady on his feet and appeared confused. Dr Mellick noted that the respondent discharged himself from hospital with symptoms of nausea but over the following ten days he began to experience increasing headaches, so presented at Robina Hospital and was admitted for about one week. Dr Mellick recorded that the headaches improved to the extent that he was able to return to easier aspects of his pre-injury job on reduced hours of work but had difficulties with dizziness and unsteadiness.
Dr Mellick took a history of the injury on 13 August 2017 when the respondent fell heavily, hitting his head, and was rendered unconscious. He recorded that the respondent was taken by ambulance to the Gold Coast University Hospital with an acute traumatic subdural haematoma requiring decompressive craniotomy and evacuation of the blood clot.
Dr Mellick noted that the respondent suffered two further falls in 2018 caused by loss of balance and suffered a stroke at home on 24 August 2019 when he was again transferred by ambulance to Gold Coast University Hospital. He further noted that the respondent had suffered several seizures, including the history recorded by Dr Carney that the respondent was experiencing seizure-like activity when he was lying on the floor unconscious on 11 May 2016. He reviewed the CT scan reports dated 13 August 2017 and 22 April 2018, as well as the report by Dr Carney, which he described as being detailed. He observed that Dr Carney recorded that there was “minor imbalance when tandem walking indicating the presence of ataxia at that time”[31] and commented that, as Dr Carney did not record that the respondent was affected by alcohol at that time, those observations ought to be considered relevant to the neurological observations as to the effects of trauma, brain injury, and the consumption of alcohol. He referred to the history of the respondent having previously been drinking 12 standard drinks per night, that he stopped completely on the Sunday and drank four standard beers the night before the 2016 injury. He considered that that history suggested that the respondent’s alcohol consumption had not ceased at the time Dr Carney wrote his report. Dr Mellick also referred to screening done on 21 June 2016 that showed liver damage due to alcohol.
[31] Reply, p 1422.
Dr Mellick indicated that, following a physical examination of the respondent, he could find none of the specific diagnostic signs necessary to diagnose an incomplete cervical cord lesion which Dr Teychenné diagnosed as having occurred in the fall on 11 May 2016. He referred to the evidence of Dr Carney, who also could not find evidence of an incomplete cervical cord lesion.
Dr Mellick concluded that the most probable explanation for the May 2016 injury was that the respondent was kneeling down putting a box in a lower shelf and another box fell and struck the respondent in the back of the head. He observed that a CT scan performed on 19 May 2016 revealed no intracranial haemorrhage and mentioned that an earlier scan performed on the day of the incident was also normal. Dr Mellick considered that the incident on 13 August 2017 was considerably more severe, given that it resulted in intracerebral bleeding and the need for urgent surgery. He added that the temporal gliosis found on the CT scan dated 22 April 2018 ought to be considered as consequential to the fall on 13 August 2017 while the respondent was intoxicated, and not the 2016 injury.
Dr Mellick indicated that the first evidence of epilepsy may have been associated with the fall in August 2017 when the respondent was intoxicated, however the ambulance records referred to “fitting” on 11 May 2016. He was of the view that the respondent’s heavy alcohol consumption may have been a contributing factor to the fall in August 2017 and was relevant to the episodic dizziness. Dr Mellick considered that the May 2016 injury may have resulted in a vestibular injury causing unsteadiness which was said to have commenced at that time. He said that the seizures occurring in 2020 should be considered to be connected to the August 2017 injury and the ischaemic stroke on 24 August 2019 should be considered as unrelated to the May 2016 injury.
Dr Mellick agreed that a blow to the head could cause epilepsy. He noted that investigation undertaken following the May 2016 injury indicated that there was no injury to the brain. He said that on the evidence, there was the possibility that that fall may not have caused the seizure, but it may have been due to a blow on the head, or that the seizure resulted from alcohol consumption or withdrawal. He said that it was possible for a blow to the head to cause a seizure but not result in ongoing seizures. He said that in this case, ongoing seizures have occurred in the absence of intracranial pathology caused by the May 2016 injury. He observed that the respondent’s alcohol consumption commenced long before the May 2016 fall and was an important factor which may of itself have caused epilepsy.
Dr Mellick remarked that there was no plausible evidence that the respondent was assaulted. He reiterated that there were no specific physical signs that would support a diagnosis of an incomplete cervical cord lesion, which was the same conclusion reached by Dr Carney.
THE MEMBER’S REASONS
The Member delivered his reasons and findings orally and a transcript was provided to the parties.
The Member summarised the factual circumstances surrounding the respondent’s allegation of injuries and identified the issues for determination, which he said required a consideration of what actually occurred to the respondent at work on 11 May 2016 and whether the fall suffered by the respondent on 13 August 2017 was causally related to the effects of the injury on 11 May 2016. He provided a detailed summary of the tasks the respondent was performing on 11 May 2016. He noted that the respondent had no recall of the incident in which he was injured. He further noted that the respondent hypothesised that he must have been hit in the head by the corner of a box that fell from the trolley.
The Member referred to the entry in the ambulance records where it was recorded that the respondent was found fitting on the ground, and a further entry noting a “fitting episode” with no head trauma. The Member commented that the record of there being no head trauma was contrary to the wound in the respondent’s head.
The Member observed that the respondent attended his general practitioner the day following the injury, who considered that the headwound appeared to be consistent with the respondent having been hit in the head by a ball hammer and recommended that the respondent report it to the police. The Member referred to the description of events provided in the respondent’s statement to police and in the Injured Worker Statement Form.
The Member reviewed the statement evidence provided by Ms Mahoney and observed that she could not recall seeing boxes of chickens and stated that staff would not be performing that work in that section of the premises. The Member noted that Ms Mahoney’s statement was made some considerable time after the event and from a very early stage the respondent had described his duties of filling the freezers with chickens from the boxes stacked on the trolley.
The Member said that the respondent stated that he continued to suffer vertigo, dizziness, headaches and unsteadiness. He also noted that, following the injury on 11 May 2016, the respondent attended his general practitioner on 19 May 2016, 20 May 2016 and 27 June 2016 and complained of those symptoms, as well as vomiting. He noted that the respondent returned to work but frequently would have to leave because of the symptoms. The Member referred to the CT scan dated 19 May 2016 which showed a small right parietal hematoma.
The Member referred to the subsequent injury on 13 August 2017. He observed that the respondent fell and hit his head after having three or four beers at a local tavern. He said that the respondent was taken by ambulance to Gold Coast Hospital and was in hospital for four weeks. The Member noted the pathology and referred to the entries in the hospital records, which included that the respondent suffered a fall while significantly intoxicated and had a history of recurrent falls as well as dependence on alcohol and prescription drugs. The Member referred to a consultation at the hospital clinic the following day where the cause of the fall was recorded as “multifactorial”, but alcohol related. The Member observed that it was apparent that alcohol had been an issue for the respondent for some considerable time. The Member concluded that the cause of the fitting on 11 May 2016 “was most likely as a result of the injury to his head on that day rather than a seizure causing the fall with the head injury suffered during the course of the fall.”[32] He further concluded that the respondent had consumed some alcohol on the night before the injury so that it was unlikely that he suffered from symptoms of alcohol withdrawal at the time of the fall. The Member reasoned that:
“The wound to the head had the appearance of being a puncture wound and would be consistent with the hard corner of a falling heavy cardboard box hitting the back of the top of the [respondent’s] skull and causing the [respondent] to fall to the ground and suffer a seizure. There is no evidence that the [respondent] had suffered any seizure or fitting prior to this event.
It is a plausible and a likely explanation of what happened on 11 May 2016. This version of what occurred on this day is more plausible than that the [respondent] struck his head on an object during the course of the otherwise unexplained fall and the nature of the wound.”[33]
[32] Transcript of reasons, Moriarty v Woolworths Group Limited (T) (W4087/24, 29 November 2024), T 6.10–13, [20].
[33] T 6.18–32, [21]–[22].
The Member observed that the Gold Coast Hospital admission records made mention of a past history of the respondent suffering recurrent falls prior to August 2017. The Member added that the respondent was examined by Dr Mellick at the request of the appellant, who, on 2 November 2023 reported that the injury at work may have resulted in a vestibular injury which caused unsteadiness that had been present since. The Member also referred to Dr Mellick’s observation that the history of alcohol consumption may have been an additional contributing factor to the fall, and that Dr Mellick was of the view that a blow to the head may precipitate an epileptic fit at the time of the blow without causing permanent seizures.
The Member considered the evidence provided by Dr Teychenné in his report dated 30 September 2018. He noted that Dr Teychenné recorded the history that the respondent developed weakness in the left arm and left leg approximately 3 months after the 2016 injury and had been experiencing flexing down of the left leg. The Member pointed to Dr Teychenné’s opinion that the injury in May 2016 possibly caused weakness and loss of strength, and that the respondent potentially sustained an incomplete cervical cord lesion in the incident. The Member observed that both Dr Mellick and Dr Carney found no evidence of an incomplete cervical cord lesion.
The Member referred to Dr Teychenné’s view that there was a possibility that the weakness and loss of strength in the left leg which was present after the 2016 injury resulted in the respondent’s leg giving way or the respondent tripping, causing the fall in the 2017 incident, although the picture was complicated by the respondent’s intoxication. The Member noted that Dr Teychenné took the further history that after the fall on 13 August 2017, the respondent’s balance continued to be badly affected and he continued to experience vertigo, dizziness and headaches, which were symptoms present since the 2016 injury, but since the 2017 incident, he began to suffer seizures.
The Member pointed out that there was no evidence that the respondent had experienced vertigo, dizziness or unsteadiness prior to the 2016 injury, and prior to that injury the respondent had maintained regular employment as a butcher. He added that the respondent’s evidence was that he had good balance and enjoyed surfing, paddleboarding and skateboarding but was unable to perform those activities after the 2016 injury, and after the 2017 incident he was unable to return to work as a butcher.
The Member concluded that he accepted that on 11 May 2016 the respondent was carrying out the duties described by him. He considered that the likely mechanism of injury was that the corner of a heavy box struck the respondent on the back of his head. The Member referred to Spigelman CJ’s observation in Seltsam Pty Ltd v McGuiness[34] that it is “often difficult to distinguish between permissible inference and conjecture” and Spigelman CJ’s reference to Lord McMillan’s reasoning in Jones v Great Western Railway Co[35] that “the dividing line between conjecture and inference is often a very difficult one to draw” and “An inference in the legal sense … is a deduction from the evidence, and if it is a reasonable deduction it may have validity as legal proof.”
[34] [2000] NSWCA 29 (Seltsam), [84].
[35] (1930) 47 TLR 39, [45].
The Member further concluded that on the basis of the available evidence, it was probable that the 2016 injury occurred as asserted by the respondent. He accepted that the injury had a continuing effect on the respondent in particular in relation to the respondent’s unsteadiness, which Dr Mellick considered may have been a vestibular injury suffered in the 2016 injury. The Member reasoned that the respondent may have been intoxicated on 13 August 2017, however the vertigo and unsteadiness constituted a material contribution to the respondent falling and suffering injury.
The Member noted that Dr Teychenné was of the view that it was possible that the respondent suffered an incomplete cervical cord lesion, however Dr Mellick and Dr Carney disagreed. He expressed the view that he was not satisfied that there was evidence of an incomplete cervical cord lesion. The Member concluded that the respondent suffered injury to his head on 11 May 2016 and as a consequence of that injury, suffered a further injury to his head on 13 August 2017.
The Certificate of Determination issued on 29 November 2024 records:
“The determination of the Commission in this matter is as follows:
1. The matter is remitted to the President to refer the matter to a Medical Assessor (Neurologist) to assess any WPI (Nervous System) as a result of injury on 11/05/2016 and the consequential injury on 13/08/2017.
2. The Medical Assessor should be furnished with:
(a)The Application to Resolve a Dispute,
(b)The Reply,
(c)All Late Documents, and
(d)A copy of this [Certificate of Determination].
3. Noted that the parties will have the opportunity to review the referral as drafted by the Commission and can raise with the Commission any issue that may arise.
4. The matter is to be scheduled for a [post Medical Assessment Certificate preliminary conference] to deal with [the respondent’s] claim for medical expenses.”
GROUNDS OF APPEAL
The appellant brings three grounds of appeal as follows:
(a) Ground One: The Member erred by failing to provide adequate reasons for:
(i)finding that a compensable injury, particularly a neurological injury, was sustained on 11 May 2016;
(ii)finding that the respondent suffered a consequential injury on 13 August 2017, and
(iii)failing to address s 4 and s 9A of the 1987 Act, which is also a failure to exercise his statutory function;
(b) Ground Two: The Member erred in making his factual findings, and
(c) Ground Three: The Member erred in the formulation of the terms of the referral by referring the matter to a Medical Assessor to assess whole person impairment:
(i)resulting from a neurological injury sustained on 11 May 2016 without having made a finding of injury or the nature of the injury, and
(ii)resulting from the consequential injury sustained on 13 August 2017 without having made any finding as to the nature of that injury.
LEGISLATION
Section 294 of the 1998 Act provides:
“294 Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78 of the Personal Injury Commission Rules 2021 (the 2021 rules) relevantly provides:
“(1) …
(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
Section 4 of the 1987 Act provides:
“Definition of ‘injury’
In this Act:
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”.
Section 9A of the 1987 Act provides:
“No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note: In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
SUBMISSIONS
The appellant acknowledges that s 352 of the 1998 Act limits an appeal to a determination of whether the decision appealed against was, or was not affected by an error of fact, law or discretion, and to the correction of such error. The appellant refers to Northern NSW Local Health Network v Heggie[36] as authority to say that there must be error and not merely a preference for a different result, and Workers Compensation Nominal Insurer v Hill,[37] in which Basten JA observed that in determining whether there was error in respect of findings of fact, the line between preferring a different result and the identification of error is difficult to draw. The appellant adds that the principles applicable to disturbing a finding of fact were cited by Roche DP in Raulston v Toll Pty Ltd.[38]
[36] [2013] NSWCA 255 (Heggie) per Sackville AJA, [72].
[37] [2020] NSWCA 54 (Hill), [20].
[38] [2011] NSWWCCPD 25 (Raulston), [19]–[21].
The respondent also relies upon the principles set out in Raulston, noting that those principles were drawn from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd.[39]
[39] [2001] FCA 1833 (Branir).
After this appeal was lodged and the timetable for submissions was closed, the Court of Appeal (Bell CJ, Leeming, Kirk, McHugh and Free JJA) in State of New South Wales v Culhana[40] re-visited a consideration of the effect of the 2011 amendments to s 352(5) of the 1998 Act[41] and determined that a series of decisions (including Heggie, Hill and Raulston) misunderstood the effect of the amendments by applying an unduly narrow test in determining errors of fact. The Court also gave consideration to Allsop P’s summary of the propositions relevant to disturbing an error of fact in Branir and concluded that that approach was inconsistent with what is required to establish error in accordance with s 352(5).
[40] [2025] NSWCA 157 (Culhana).
[41] Workers Compensation Legislation Amendment Act 2010.
Given that Ground Two of this appeal involves an allegation of error on the part of the Member in the process of fact finding, I considered it appropriate to allow the parties to make submissions as to the application of Culhana to this appeal. A summary of the parties’ submissions is included in the submissions made in respect of that ground of appeal (Ground Two).
As to Ground One
The appellant’s submissions
The appellant submits that the Member erred by finding that a compensable injury, particularly a neurological injury, was sustained on 11 May 2016.
The appellant refers to the discussion of the principles applicable to the requirement to provide adequate reasons set out by Snell DP in BGV v Waverley Council,[42] in which Snell DP quoted from and applied Beale v Government Insurance Office of NSW,[43] Mifsud v Campbell,[44] Pollard v RRR Corporation Pty Ltd[45] and Ming v Director of Public Prosecutions (NSW).[46]
[42] [2024] NSWPICPD 2, [121]–[126].
[43] (1997) 48 NSWLR 430 (Beale).
[44] (1991) 21 NSWLR 725 (Mifsud).
[45] [2009] NSWCA 110 (Pollard).
[46] [2022] NSWCA 209.
The appellant also refers to other Presidential decisions involving the application of those authorities in the context of the Commission.
The appellant submits that, while the reasons were given ex tempore, the Member was still required to provide adequate reasons in order to ensure that the decision maker above is not left to speculate from the collateral observations of the Member what the basis was for the finding, citing Pollard.
The appellant points to the Member’s observations at paragraphs [20] to [22] and [30] to [35] of the transcript.[47] The appellant asserts that the Member gave no reasons for concluding that the respondent would have been unlikely to be suffering from alcohol withdrawal at the time the fall occurred. The appellant says that the inference drawn by the Member was dependent upon the respondent’s self-reporting, but in any event the Member did not grapple with the appellant’s submissions in paragraphs [21] to [29] of its submissions made below, which were contrary to that proposition, which constitutes a failure to afford the appellant procedural fairness.
[47] T 6; T 9–10.
The appellant asserts that the Member fell into further error when he determined that the wound was more consistent with a blow to the head from a box when there were various other explanations offered, including from the respondent. The appellant cites Strinic vSingh,[48] in which Beazley JA (as her Excellency then was) observed that while experience with medical terminology and conditions will provide helpful assistance to a decision-maker, that familiarity will never make the decision-maker the expert in the case. The appellant submits that, in accordance with Strinic and Kirby P’s observations in JLT Scaffolding International Pty Ltd (in Liq) v Silva,[49] even though the Commission is a specialist tribunal, it is not permissible for the Member to use that knowledge to fill gaps in the evidence or determine the aetiology of a disease if there is no evidence to support the conclusion. The appellant asserts that the Member impermissibly filled in the gap in the evidence and used his own interpretation of the nature of the wound in the photograph.
[48] [2009] NSWCA 15 (Strinic), [59].
[49] New South Wales Court of Appeal, 30 March 1994, unreported.
The appellant submits that the Member provided no explanation for his conclusion that it was more likely that the wound was caused by a blow to the head by a falling box, rather than the very plausible explanation that the respondent hit his head when falling. The appellant submits that there was no medical evidence to support the Member’s conclusion. The appellant asserts that the controversy was therefore not properly resolved by the Member’s reasons.
The appellant refers to the Member’s citation of the relevant authorities in respect of the drawing of inferences from the facts. The appellant says that the Member did not explain why the evidence permitted such inferences to be drawn.
The appellant submits that the fact that the respondent did not complain of symptoms of vertigo, dizziness or unsteadiness prior to 11 May 2016 does not assist because it was only after the respondent suffered a fall or blow to the head that the symptoms manifested. The appellant refers to the Member’s observation that the respondent was performing his work duties (including handling boxes) when the injury occurred and submits that that fact was insufficient to support the inference drawn and it was equally probable that there was some other cause of the injury.
The appellant refers to the evidence of Ms Mahoney, who said that she could not recall any boxes in the vicinity of where the respondent was lying and the area where the respondent was found was not a location where the staff would be unpacking boxes. The appellant notes that the Member discounted that evidence because it was provided a long time after the event. The appellant submits, however, that it is unclear as to whether the Member made any finding in relation to that evidence.
The appellant asserts that Dr Teychenné did not provide an opinion that established the necessary link and queries whether the Member placed any reliance on the reports of Dr Teychenné in circumstances where the Member rejected the notion put forward by Dr Teychenné that the respondent suffered an incomplete cervical cord lesion.
The appellant submits that the Member’s reasons fell well short of the necessary standard required.
The appellant asserts further error on the part of the Member by finding that the respondent suffered a consequential injury on 13 August 2017.
The appellant refers to the Member’s observation that after the 2016 injury, the respondent continued to experience vertigo, dizziness, headaches and unsteadiness. The appellant further refers to the Member’s observation that when the respondent fell on 13 August 2017 he had a significantly high blood alcohol count, and that the Member concluded that the respondent had a problem with alcohol for some time.
The appellant points to the Member’s reasoning that he accepted that the respondent’s injury had a continuing effect on the respondent, particularly in relation to unsteadiness and that Dr Mellick suggested there may have been a vestibular injury on 11 May 2016, and that the respondent’s vertigo and unsteadiness made a material contribution to his fall in August 2017. The appellant refers to the Member’s conclusion that followed in which the Member found that the respondent suffered an injury to his head on 11 May 2016 and the injury on 13 August 2017 was a consequence of the May 2016 injury.
The appellant submits that the Member failed to explain why the respondent’s ongoing symptoms were material to the fall in August 2017 when there was no evidence that those symptoms had caused earlier falls. The appellant asserts that it submitted to the Member that there were other more probable causes such as significant intoxication and the effects of the alcohol consumption. The appellant says that there was no explanation as to why that evidence was discounted when there was contemporaneous evidence and expert evidence to show that intoxication was a causative factor. The appellant submits that proper reasons should have been provided as to why the appellant’s submission on that point was rejected.
The appellant complains of further error on the part of the Member by failing to address s 4 and/or s 9A of the 1987 Act. The appellant asserts that the Member erred by failing to provide any reasons as to how those provisions were satisfied and, on a fair reading of the Member’s reasons, it is not possible to understand exactly how the provisions were satisfied. The appellant adds that in failing to provide any reasons for finding that the respondent suffered a compensable injury, the Member also failed to perform his statutory duty.
The respondent’s submissions
The respondent submits that the ground of appeal should be rejected. The respondent refers to Soulemezis v Dudley (Holdings) Pty Ltd[50] and Mifsud as authorities to say that it is unnecessary for a decision-maker to refer to all of the evidence or to indicate whether that evidence is accepted or rejected. The respondent also sets out the principles that apply to a consideration of the obligation to give reasons as summarised in Beale.
[50] (1987) 10 NSWLR 247 (Soulemezis), 281.
The respondent submits that the Member fulfilled those obligations. He identifies the issues for determination as firstly, whether the respondent suffered a work-related injury on 11 May 2016 that caused ongoing dizziness, headaches, vertigo and instability and secondly, whether that injury materially contributed to the incident on 13 August 2017 in which the respondent received a traumatic head and brain injury with a subdural haematoma requiring surgery, and resulted in increased seizures and physical and cognitive impairments. The respondent indicates that the Member identified the issues for determination, after which he proceeded to set out the relevant evidence from the respondent, the general practitioner, NSW Ambulance, NSW Police, Ms Mahoney, the Discharge Summary from Tweed Heads Hospital, and the CT scan dated 19 May 2016. The respondent submits that the picture that was emerging from that evidence was that the respondent continued to complain of symptoms after the May 2016 incident.
The respondent asserts that the Member proceeded to make his finding of fact that the respondent’s seizures on 11 May 2016 were caused by the fall, in which the respondent suffered an injury to his head. The respondent says that the Member’s conclusion clearly shows that he appreciated the case put to him by the appellant that the injury was occasioned by the seizures which caused the respondent to fall and injure his head.
The respondent says that the Member then considered the evidence about the incident on 13 August 2017, including the evidence as to the respondent’s alcohol consumption, and the hospital records from Gold Coast Hospital. The respondent refers to the Member’s conclusion that the respondent’s blood alcohol reading was significantly high and the observation that the respondent’s alcohol consumption had been a long-term problem.
The respondent refers to the Member’s process of reasoning in respect of the injury on 11 May 2016 that:
(a) given that the respondent had imbibed in a few drinks the night before, it was unlikely that the respondent was suffering from withdrawal of alcohol;
(b) the appearance of the wound was consistent with the respondent being hit in the head by a heavy cardboard box;
(c) the hit on the head caused the respondent to fall to the ground and suffer a seizure;
(d) the respondent had not experienced seizures before this event, and
(e) this explanation of what occurred was more plausible than that put forward by the appellant, which provided no explanation of why the respondent fell.
The respondent submits that it was apparent that the Member based his conclusion on the determinative factors which were:
(a) the wound had the appearance of a puncture;
(b) the description of the wound was consistent with the general practitioner’s clinical notes;
(c) there was no past history of seizures, vertigo, dizziness or unsteadiness prior to the fall;
(d) the respondent had not withdrawn from alcohol;
(e) the respondent had previously participated in sporting activities requiring balance;
(f) the respondent was expected to perform the physical requirements of his work activities;
(g) the respondent’s location when he suffered the injury, and
(h) the respondent had worked for many years as a butcher.
The respondent asserts that the Member’s reasons were logical, rational and understandable and there was ample evidence to support his conclusions. He adds that the Member explained any conflict in the evidence. The respondent says that the Member discussed the various authorities in respect of drawing inferences from the evidence and that an inference is a deduction from the evidence, which, if reasonable has the “validity of legal proof”, citing McColl JA in Tudor Capital Australia Pty Ltd v Christensen.[51] The respondent asserts that the Member applied the correct principles when drawing inferences and says that there was no error in the Member’s reasoning.
[51] [2017] NSWCA 260.
The respondent refers to the Member’s finding that after the injury on 11 May 2016, the respondent continued to complain of unsteadiness, dizziness, headaches, vertigo and recurrent falls. The respondent says that the Member based this finding on the contemporaneous evidence of the respondent’s general practitioner and the complaints made to the Tweed Heads Hospital on 19 May 2016, 20 May 2016 and 27 June 2016.
The respondent referred to the Member’s consideration of the injury on 13 August 2017 and asserts that the Member referred to all of the relevant evidence, including the evidence of Dr Mellick that the injury on that date may have resulted in a vestibular injury causing unsteadiness which had been reported since the injury on 11 May 2016. The respondent indicates that the Member noted that Dr Mellick considered that the respondent’s alcohol consumption was an additional contributing factor and that Dr Mellick also considered that a blow to the head may cause epilepsy at the time of the impact but did not result in permanent ongoing seizures. The respondent asserts that Dr Mellick’s evidence supported the notion that the blow to the head on 11 May 2016 likely caused the seizures and the complaints of ongoing unsteadiness, vertigo, dizziness and recurrent falls, which materially contributed to the fall on 13 August 2017.
The respondent points out that, although the Member rejected the diagnosis of an incomplete cervical cord lesion (which was not the respondent’s primary case), he relied upon the evidence of Dr Mellick, but additionally relied upon the history recorded by Dr Teychenné, who also noted a continuation of symptoms following the injury. The respondent concedes that medical histories may be inaccurate or incomplete, however he submits that Dr Teychenné specifically focused on the history of the effects and continuing symptoms and that history was consistent with other evidence.
The respondent refers to the Member’s reference to Dr Mellick’s evidence that the unsteadiness may have resulted from a vestibular injury on 11 May 2016 and that the vertigo and unsteadiness was a material contribution to the fall and injury on 13 August 2017. The respondent submits that the Member was correct to conclude there was a material contribution and thus a link between those complaints and the injury on 13 August 2017.
The respondent refers to the appellant’s allegation of error in failing to provide reasons as to why s 4 and s 9A of the 1987 Act were satisfied. The respondent submits that:
(a) the injury on 11 May 2016 occurred while the respondent was carrying out his work activities of unpacking and stacking shelves;
(b) he was struck on the head by a box that fell from a trolley, and
(c) the injury occurred in the course of and arose out of his employment;
thus, s 4 of the 1987 Act was satisfied.
The respondent adds that s 9A of the 1987 Act was clearly satisfied because the respondent was struck on the head by a box and there was no other contributing factor, but even if there was another factor, the requirement is only that the employment be a substantial contributing factor, which was satisfied. The respondent asserts that that conclusion was clearly implicit in the Member’s analysis of the evidence and his findings.
The respondent submits that the appellant’s complaints are not made out and should be rejected.
As to Ground Two
The appellant’s submissions
The appellant asserts that the Member’s failure to provide adequate reasons creates a difficulty in identifying error in the fact-finding process. It submits, however, on the basis of the submissions made in respect of the errors described in Ground One, it is apparent that the Member’s factual findings were in error and against the weight of the evidence.
The appellant contends that the Member appears to have rejected Dr Teychenné’s ultimate diagnosis and it can be implied from that that the Member rejected the whole of the opinions expressed by Dr Teychenné. The appellant says that Dr Teychenné was the only expert who drew a causal link between the injury on 11 May 2016 and the injury on 13 August 2017, yet the Member did not accept that opinion, so that there was no proper evidentiary basis upon which the Member could find that there was a material contribution to the fall.
The appellant’s submissions on the effect of Culhana
The appellant cites Leeming JA’s observations at paragraphs [91] to [92] of Culhana that the proper approach to take in respect of s 352(5) of the 1987 Act and the identification of error in the fact-finding process is that set out in Warren v Coombes[52] and Fox v Percy[53] and that it is not sufficient for an appeal to be dismissed because it was “open” to the Member to reach that conclusion.
[52] [1979] HCA 9 (Warren v Coombes).
[53] [2003] HCA 22 (Fox v Percy).
The appellant acknowledges that Culhana overturned the previous Court of Appeal authorities of Heggie and Hill and the decision of Deputy President Roche in Raulston.
The appellant submits that there are no implications in respect of Ground One or Ground Three of the appeal because those grounds involve errors of law. The appellant submits, however, that there are implications in respect of the alleged factual errors referred to in Ground Two. The appellant asserts that the correct approach is that taken in Warren v Coombes and Fox v Percy. The appellant states that the Member did not hear or observe any witnesses, so that the Member was in no better position than a Presidential Member to make factual findings and, citing Lee v Lee,[54] no deference should be given to the Member’s factual conclusions. The appellant submits that a real review of the evidence is necessary to determine whether the Member’s conclusions were erroneous.
[54] [2019] HCA 28 (Lee).
The appellant asserts that, for the reasons already provided, the Member’s conclusions were erroneous. The appellant further asserts that the approach now required by Culhana does nothing less than strengthen the appellant’s case.
The respondent’s submissions
The respondent submits that the Member referred to the evidence, analysed it and explained why he accepted some evidence and not the other. The respondent says that the Member relied upon probative, logical evidence that was relevant to the issues. The respondent asserts that there was no error demonstrated in the Member’s findings of fact and says that the appellant is merely “quibbling with the outcome.”
The respondent refers to the appellant’s submission that Dr Teychenné was the only expert who drew a link between the injury on 13 August 2017 and that of 11 May 2016 and that there was no proper basis for the Member to find that the injury on 11 May 2016 made a material contribution to the fall in 2017. The respondent asserts that the submission is misconceived. The respondent submits that what was required of the Member was for him to evaluate the evidence, adopting a common-sense approach, and all the respondent was required to do was to establish a causal link between the injury on 11 May 2016 and the fall on 13 August 2017. The respondent asserts that the causal link must be material and not just de minimus or negligible. The respondent says that the evidence established that connection in that it showed that the respondent continued to experience recurrent falls, as recorded in the clinical notes and in the reports of Dr Teychenné, and the Member was satisfied on that evidence that the causal link was established.
The respondent contends that this ground of appeal is not made out and should be rejected.
The respondent’s submissions on the effect of Culhana
The respondent also relied upon Raulston and Branir, but concedes that in Culhana, the Court rejected the narrow approach previously taken in Presidential appeals as to whether the Member’s finding of fact was “open” or “available” to the Member. The respondent contends that Culhana requires the Presidential Member to determine factual challenges by a review of all of the evidence, while paying regard to the advantages a primary decision-maker would have if oral evidence was adduced.
The appellant submits that the fact that the respondent did not experience those symptoms prior to the fall is of no assistance. On the contrary, that fact, in the absence of any factual inconsistency, is indicative that the fall caused the immediate onset of those neurological symptoms.
The appellant further asserts that the Member rejected part of Dr Teychenné’s evidence (that the respondent had suffered an incomplete cervical cord lesion) so that it is not clear whether the Member rejected the whole of his evidence. Given the Member inferred from the evidence that the respondent was hit on the head by the corner of a box of chickens which caused him to fall to the ground and experience seizures, which was considered by Dr Teychenné to be the most probable scenario, it is obvious that the Member accepted Dr Teychenné’s evidence, apart from the proposition that the respondent suffered an incomplete cervical cord lesion. That evidence was consistent with the views of the other medical experts referred to above and there was no error by the Member in rejecting part only of the expert’s opinion. The Member was not bound to accept or reject the whole of the evidence of a witness.[68]
[68] Abalos v Australian Postal Commission [1990] HCA 47; Chanaa v Zarour [2011] NSWCA 199.
The appellant has failed to identify any error of fact in the Member’s finding that the respondent suffered a work-related injury on 11 May 2016. For the above reasons, I am of the view that the Member did not err in his fact-finding process in relation to the occurrence and causation of a work-related injury on 11 May 2016.
The alleged consequential injury on 13 August 2017
As with the May 2016 injury, the respondent could not recall what happened on 13 August 2017 and there were no witnesses as to what occurred.
The appellant points to the Member’s reference to the evidence that the respondent continued to experience vertigo, dizziness, headaches and unsteadiness following the injury on 11 May 2016 and returned to work after that injury. The appellant adds that the Member also noted that at the time of the fall on 13 August 2017, the respondent had a significantly high blood alcohol reading. The appellant quotes from the Member’s reasoning in which he stated:
“The [respondent] was reviewed by Dr Gatty on 6 December 2017 at a clinic presumably connected with the hospital who reported to the [respondent’s] treating doctor that the [respondent] presented post seizure most likely multifactorial, alcohol-related, subtherapeutic medication and hypermetropia. Clearly alcohol had been a problem for the [respondent] for quite some time.”[69]
[69] T 6.1–8, [19].
The appellant refers to the Member’s consideration of the evidence from the Gold Coast Hospital notes, where the respondent attended after the 13 August 2017 injury, and the evidence of Dr Teychenné and Dr Mellick. The appellant reproduces the Member’s following reasons:
“I accept that the [May 2016] injury had a continuing effect on the [respondent], particularly with regard to unsteadiness which Dr Mellick says may have resulted from the [respondent] having suffered a vestibular injury on 11 May 2016.
Whilst the [respondent] may have been intoxicated on 13 August 2017, he was proceeding on his way home and the vertigo and unsteadiness from which the [respondent] suffered constituted a material contribution to him falling and suffering the injury.”[70]
And:
“In conclusion, I find that the [respondent] suffered injury to the head on 11 May 2016 and as a consequence of that injury suffered a further injury to the head on 13 August 2017.”[71]
[70]T 10.11–23, [35]–[36].
[71]T 11.5–8, [40].
The appellant submits that the Member did not refer to any history of those symptoms causing falls prior to the fall in August 2017 and the Member did not provide any explanation as to why the symptoms referrable to the injury on 11 May 2016 were material to the fall.
It is well documented that the respondent suffered what can be accepted as neurological disturbance of worsening imbalance, dizziness, vertigo and vomiting following the head injury on and from 11 May 2016.[72]
[72] See ARD, p 330.
The respondent was discharged from the Gold Coast Hospital and Health Service in respect of the August 2017 injury on 29 August 2017. The injury was described as a “fall with headstrike and LOC in the setting of intoxication.”[73]
[73] ARD, p 844.
In his report dated 4 April 2018, Dr Chamberlain said that the respondent presented to Gold Coast University Hospital on 13 August 2017 following another fall in the context of intoxication, in which he lost consciousness. Dr Chamberlain attributed the tonic clonic seizure that occurred in February 2018 to the August 2017 injury because of the long absence of seizures between May 2016 and August 2017 and because of the severity of the August 2017 injury.[74]
[74] ARD, pp 884–885.
Dr Teychenné considered that imbalance was common following an incomplete cervical lesion and in the August 2017 incident the respondent may have tripped because of that imbalance. Dr Teychenné concluded that if the respondent had an incomplete cervical lesion that resulted from the first injury, then the two later incidents in August 2017 and August 2019 could be causally related to the first injury occurring at work. He said that, on the basis of a diagnosis of an incomplete cervical cord lesion, it was arguable that the incident in August 2017, as well as the apparent stroke in August 2019 were causally related to the May 2016 injury.
Dr Robinson observed that the incident on 13 August 2017 caused an intracranial haemorrhage, however, the respondent’s employment could not have been a contributing factor to that injury. That conclusion was, of course, on the background of Dr Robinson’s view that the injury in May 2016 was not work-related.
Dr Carney considered the mechanism of the injury in August 2017. He was of the view that the injury on 13 August 2017 appeared to have been either an epileptic seizure or a fall causing a blow to the head. He said that if the injury in May 2016 caused the epilepsy, and if on 13 August 2017 the respondent suffered an epileptic fit causing him to fall, then the fall was work-related. Dr Carney qualified that view by saying that there were multiple potential causes of epilepsy, including excessive alcohol intake and alcohol withdrawal, and it may have been a contributing factor that the respondent ceased taking his anti-epileptic medication. Dr Carney concluded that there was no work-related connection to the fall in August 2017.
Dr Mellick was of the view that the respondent’s heavy alcohol consumption may have been a contributing factor to the fall in August 2017 and to the onset of seizures, and was relevant to the episodic dizziness. Dr Mellick took a history of subsequent falls in 2018, which the respondent could remember, and which were attributable to his loss of balance. Dr Mellick did not otherwise offer a view as to whether the August 2017 fall resulted from the injury in May 2016.
The Member noted the respondent’s statement evidence that prior to the fall on 13 August 2017, he had consumed three or four beers. The Member further noted, however, that the respondent’s alcohol reading showed a significantly higher reading of 0.25 percent and the hospital notes recorded that the respondent fell while intoxicated.
The Member referred to the opinion of Dr Mellick that the incident in May 2016 may have caused a vestibular injury resulting in unsteadiness although Dr Mellick referred to intoxication as a complication, and Dr Teychenné’s view that there was a “possibility” that the respondent’s weakness in the left leg caused it to give way or caused the respondent to trip on 13 August 2017.
The Member concluded that while the respondent may have been intoxicated when he fell in August 2017, the vertigo and unsteadiness that had been present since the May 2016 injury “constituted a material contribution” to the fall and thus the injury on 13 August 2017 was a consequence of the May 2016 injury.
The highest the medical opinion reaches is to the level of a possibility that there was a causal connection between the injury in May 2016 and the fall in August 2017. Dr Teychenné was of the view that a connection was “arguable”, but that opinion was based on the presence of a cervical cord lesion, evidence of which was correctly rejected by the Member. Dr Carney’s opinion was couched in presumptions that “if” the May 2016 incident caused the epilepsy and “if” the respondent fell in August 2017 because he suffered an epileptic fit. Neither of those presumptions is founded in the evidence and, in any event, Dr Carney reached the ultimate conclusion that there was no work-related connection to the fall in August 2017.
There was thus insufficient expert or other factual evidence to support the Member’s conclusion that the vertigo and unsteadiness resulting from the injury in May 2016 materially contributed to the fall in August 2017. There was also no evidence that the fall was caused by a seizure. Accordingly, the Member’s conclusion that the fall on 13 August 2017 resulted from the injury on 11 May 2016 was erroneous.
Conclusion
I conclude that, in respect of Ground Two of the appeal, the Member did not err in concluding that the respondent suffered a compensable work-related injury on 11 May 2016 when the respondent was hit in the head, fell to the ground and lost consciousness. I further conclude that as a result of that injury the respondent suffered imbalance, dizziness, vertigo and nausea. The Member’s finding in respect of that injury is therefore confirmed.
I further conclude that the Member erred in determining that the injury on 13 August 2017 was consequential to and resulted from the 11 May 2016 injury. The Member’s finding in relation to that incident is revoked.
Ground One: Whether the Member provided adequate reasons for his conclusions
The appellant asserts error on the part of the Member by failing to provide adequate reasons for his findings that the respondent suffered a compensable injury on 11 May 2016 and that the incident on 13 August 2017 was a consequence of the May 2016 injury. The appellant asserts further error on the part of the Member by failing to address s 4 and s 9A of the 1987 Act.
Section 4 of the 1987 Act defines what constitutes an “injury” and s 9A of the 1987 Act requires that, for the injury to be compensable, the injured worker’s employment must be a substantial contributing factor to the injury. As the fall occurring on 13 August 2017 was alleged to have occurred as a consequence of the symptoms referrable to the May 2016 injury, the test in respect of the August 2017 incident is not whether s 4 and s 9A applied but required a consideration of whether the May 2016 injury materially contributed to the subsequent fall.[75] Thus, the appellant’s complaint that the Member failed to address the application of s 4 and s 9A is only relevant to the finding of injury on 11 May 2016. Additionally, in circumstances where the Member’s finding in respect of whether the fall on 13 August 2017 was compensable was erroneous, it is not necessary to consider the adequacy of the Member’s reasons for reaching that conclusion.
[75] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, [35]–[49] and [61].
Section 294 of the 1998 Act provides that “A brief statement is to be attached to the certificate setting out the Commission’s reasons for determination.” Rule 78 of the 2021 rules (reproduced at [94] above) requires that the Member set out his or her findings on material questions of fact, referring to the evidence upon which those findings are based, the Member’s understanding of the relevant law and the reasoning process that led the Member to the conclusions made. The reasons are to be sufficient, in the opinion of the Member, to enable the parties to be aware of the Member’s view of the case made by the parties.
A useful analysis of the principles in respect of a duty to give reasons was provided by McColl JA (with Ipp JA and Bryson AJA agreeing) in Pollard, in which her Honour said as follows (citations omitted):
“The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them. However a trial judge’s reasons must, ‘as a minimum ... be adequate for the exercise of a facility of appeal’. A superior court, ‘considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding’.
The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice.
The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge ‘ ‘enter into’ the issues canvassed and explain why one case is preferred over another’.”[76]
[76] Pollard, [56]–[59].
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq),[77] Kirby J observed that where there is evidence in support of a party’s case, that evidence must be considered in the reasoning process in a satisfactory way.
[77] [1999] HCA 3, [94].
In Mifsud v Campbell Samuels JA said:
“... it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.”[78]
[78] (1991) 21 NSWLR 725, 728.
Additionally, in Minister for Immigration and Ethnic Affairs v Liang,[79] the High Court observed that the reasons for the decision were “not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
[79] [1996] HCA 6, [30].
The appellant asserts that the Member failed to provide any explanation for finding that the respondent suffered a neurological injury on 11 May 2016. The appellant refers to the Member’s finding that the injury was unlikely to have been caused by alcohol withdrawal.
The Member noted that the respondent’s evidence was that he had consumed three to four beers the night before the injury and the history recorded by the Tweed Heads District Hospital was that the respondent had abstained from alcohol for two days until the evening before the injury, when he had four standard drinks. The Member observed that:
“The [respondent’s] history was that he had had some drinks the night before so it is unlikely that the [respondent] was suffering from withdrawal symptoms as a cause of the fall.”[80]
[80] T 6.15–18, [21].
The appellant submits that the amount of alcohol the respondent consumed was a matter of the respondent’s “self-reporting”. Unlike the respondent’s unreliable report of alcohol consumption on the night of 13 August 2017, which was objectively noted to be “intoxication”, the history recorded in the Tweed Heads Hospital notes as to the respondent’s alcohol consumption in the days leading up to the May 2016 injury was unchallenged. The conclusion that the respondent had not withdrawn from alcohol is plainly consistent with the evidence as a whole and was a sufficient basis to explain why the Member made that finding. I note that the appellant did not mount a case that excessive alcohol consumption on the night prior to the May 2016 injury was a cause of the seizures.
The appellant submits that the Member did not grapple with its submissions made to the Member that:
(a) there was no direct evidence that the fall was occasioned by a box falling on the respondent’s head and the respondent had no recall of the event, so that the proposed scenario has no merit, the proposition is mere conjecture and there was no expert evidence to support that notion;
(b) the Member was left to draw an inference in circumstances where the fallibility of human memory is well recognised and the version of the respondent’s self- interested explanation was given long after the incident;
(c) there was no compelling reason why the respondent’s version was more likely than that he had suffered a seizure for unrelated reasons, such as alcohol withdrawal and a seizure consequent upon alcohol withdrawal was the most compelling conclusion;
(d) the respondent could not prove that his employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act;
(e) the prospect that the wound was caused by a fall could not be discounted when the respondent could have fallen striking his head on a hard object;
(f) the absence of seizures was immaterial because the respondent had been a heavy drinker but ceased drinking shortly before the fall, and
(g) there was no expert evidence to support the notion that the wound was inconsistent with a fall.
The Member clearly appreciated the appellant’s case when he recorded that the “fitting on [11] May 2016 was most likely as a result of the injury to his head on that day rather than a seizure causing the fall with the head injury suffered during the course of the fall”.[81] After reviewing the evidence, the Member concluded that the latter proposition was less likely. The Member did not conclude that the former proposition was more likely simply on the basis of the respondent’s “recollection” some years after the event. He explained his path leading to that inference from a consideration of the medical evidence and what those experts considered was the most likely explanation of the injury.
[81] T 6.10–34, [20]–[22].
The Member acknowledged the lack of direct evidence as to what occurred and that he was required to determine the matter on the basis of inferences drawn from the available evidence. The Member considered the fine line between inference and conjecture, before drawing the inference that the fitting on 11 May 2016 was most likely as a result of the injury to his head on that day rather than a seizure causing the fall, as opined by the various medical experts.
The appellant argued that there was no expert evidence to support the notion that the wound was inconsistent with a fall. The Member dealt with that proposition in his analysis of the evidence and his conclusion, which was squarely based on the opinions of Dr Teychenné, Dr Mellick, and Dr Josephsen and found some support in the opinions of Dr Carney that the wound looked more like a blow to the head than the result of a fall, and Dr Chamberlain that the respondent had been hit in the head by something sharp.
The appellant submits that the fact that the respondent did not experience those symptoms prior to the fall is of no assistance. As I observed at [179] above, that fact, in the absence of any factual inconsistency, is indicative that the fall caused the immediate onset of those neurological symptoms. How that complaint relates to this ground of appeal is unclear. However, contrary to the assertion that the Member failed to provide adequate reasons for his findings, in my view, the Member’s observation that the neurological symptoms were not present prior to the injury is an example of the Member’s appropriate reasoning process.
The Member’s reasoning process was sufficient to explain his findings in respect of the injury on 11 May 2016.
The appellant asserts that the Member failed to address s 4 and s 9A of the 1987 Act. Once again, it is difficult to ascertain how this allegation of error falls within the ambit of an alleged failure to provide reasons. In any event, the whole process of the Member’s determination involved a consideration of the causation of the head injury and its consequences. The Member was not required to specifically spell out the terms of s 4 of the 1987 Act.
The Member observed that the respondent suffered the injury while he was performing his work duties as described, and that the injury occurred when the respondent was hit in the head by a box of chickens. The Member’s reasoning and conclusions were sufficient to address the question of injury as defined by s 4 of the 1987 Act.
In my view, the Member provided adequate reasons for reaching his conclusion that the respondent suffered a work-related injury in the course of his employment with the appellant. The Member did not make any finding as to whether the respondent’s employment was a substantial contributing factor to the injury on 11 May 2016. Although his findings that the respondent was injured while he was performing his work duties and that the injury occurred when the respondent was hit in the head by a box of chickens might be indicative that he did turn his mind to a consideration of the factors identified in s 9A, he did not deal with s 9A, which is required to be satisfied independently of s 4.[82]
[82] Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd, [2009] NSWCA 324 (Badawi), [48(3)].
Section 352(5) of the 1998 Act provides that an appeal is limited to a determination of whether the decision was or was not affected by error, including an error of law, and to the correction of such error. Thus, a consideration of whether the Member’s omission has resulted in error is necessary.
Consideration
Section 9A(3) provides that the employment is not to be regarded as a substantial contributing factor to the injury merely because the injury arose out of or in the course of employment, although it is relevant.[83] Examples of the matters that are to be taken into account are set out in s 9A(2) of the 1987 Act. That is:
(a) the time and place of the injury;
(b) the nature of the work performed and the particular tasks of that work;
(c) the duration of the employment;
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment;
(e) the worker’s state of health before the injury and the existence of any hereditary risks, and
(f) the worker’s lifestyle and his or her activities outside the workplace.
[83] Badawi, [48(2)].
The requirement for the employment to be a substantial contributing factor does not exclude a contribution from other factors, including non work-related matters,[84] and the causal connection must be “real” and “of substance”.[85]
[84] Badawi, [48(4)].
[85] Badawi, [82].
In this case, the injury clearly occurred in the course of the respondent’s employment. The mechanism of injury was accepted as the respondent being hit in the head by a falling box of chickens, while the respondent was performing the duties of removing chickens from the boxes and filling the shelves with those chickens. It was that injury that set in train the respondent’s symptoms of dizziness, imbalance, vertigo and nausea.
In respect of the factors identified that are to be taken into account, the respondent was attending to the particular tasks of his employment in the course of his employment and the respondent had been employed by the appellant and as a butcher for some time before the injury. The respondent’s consumption of alcohol may have been a factor indicating that at some stage the respondent might have developed dizziness, imbalance, vertigo and seizures, but there is no medical evidence to support an assertion that the injury (the hit on the head causing neurological effects) would probably have occurred at the same stage in the respondent’s life, or would have occurred whether or not the respondent was at work. The respondent’s state of health before the injury was that although he had a problem with alcohol, he lived an active lifestyle which he was unable to pursue after the injury.
In accordance with Badawi, even if there was another contribution to the injury, even a substantial contribution, that does not negate a finding that the employment was a substantial contributing factor. On the available facts, I am of the view that the respondent’s employment was a substantial contributing factor to the injury on 11 May 2016 pursuant to s 9A. In those circumstances, the Member’s conclusion that the respondent suffered a compensable injury pursuant to s 4 of the 1987 Act is not affected by his omission to consider s 9A of the 1987 Act, the omission is not material to the outcome and therefore the Member’s decision is confirmed.
Ground Three
The appellant challenges the terms of the Member’s referral of the respondent’ s claim pursuant to s 66 of the 1987 Act. I have found that the Member’s determination that the injury on 13 August 2017 resulted from the injury on 11 May 2016 was erroneous. In those circumstances, the parties have not had the opportunity to address the question of whether the seizures occurring after the May 2016 injury and the ongoing need for anti-epileptic medication and other treatment for seizures resulted from the injury on 11 May 2016.
As the referral included an assessment of the injuries resulting from the incident on 13 August 2017, the referral requires revocation in any event. It is therefore not necessary for me to consider this ground of appeal.
CONCLUSION
The Member’s determination that the respondent suffered a work-related injury on 11 May 2016 is confirmed and the respondent’s employment was a substantial contributing factor to that injury. The finding that the respondent’s injury on 13 August 2017 resulted from the injury on 11 May 2016 is revoked, as is the referral to a Medical Assessor dated 29 November 2024. The issue of whether the seizures after 11 May 2016 result from the injury on 11 May 2016 requires determination by a member and is to be remitted accordingly.
DECISION
The determination that the respondent suffered a work-related injury on 11 May 2016 is confirmed.
The respondent’s employment was a substantial contributing factor to that injury.
The referral to a Medical Assessor dated 29 November 2024 for assessment of the respondent’s whole person impairment is revoked.
The Matter is remitted to a different member for determination as to whether the seizures after 11 May 2016 result from the injury on 11 May 2016.
Elizabeth Wood
DEPUTY PRESIDENT
8 September 2025
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