Woolworths Ltd v Galea
[2020] NSWWCCPD 53
•19 August 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Woolworths Ltd v Galea [2020] NSWWCCPD 53 |
| APPELLANT: | Woolworths Ltd |
| RESPONDENT: | Lillian Galea |
| INSURER: | Employers Mutual as agent for Woolworths Ltd Workers Compensation Self Insurance Scheme |
| FILE NUMBER: | A1-845/20 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 28 April 2020 |
| DATE OF APPEAL DECISION: | 19 August 2020 |
| SUBJECT MATTER OF DECISION: | Causation: application of EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 and Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr Andrew Parker, counsel | |
| Turks Legal | |
| Respondent: | |
| Mr P Perry, counsel | |
| Turner Freeman Lawyers | |
ORDERS MADE ON APPEAL: | 1. The Arbitrator’s decision dated 28 April 2020 is revoked. |
| 2. The matter is remitted for redetermination by another Arbitrator. | |
INTRODUCTION AND BACKGROUND
Lillian Galea (the respondent) worked on a permanent part-time basis with Woolworths Ltd (the appellant) as a picker and packer, and forklift driver. She suffered an injury, the occurrence of which is not controversial, when she fell at work on 27 June 2017. She suffered a fracture of the left scaphoid. She initially was treated by Dr Hamsi, who she said was the appellant’s “preferred doctor”. Dr Hamsi referred her to a plastic surgeon, Dr Dowd.[1] She came under the care of a different general practitioner, Dr Lim, from 21 July 2017.[2] Dr Dowd operated on the respondent on 26 July 2017, performing open reduction and internal fixation of the left scaphoid.[3]
[1] Respondent’s statement 29/11/19 (respondent’s statement), [3]–[7], Application to Resolve a Dispute (ARD), pp 1–3.
[2] Dr Lim’s notes, ARD, p 57.
[3] ARD, p 38.
The respondent stated that following her left hand injury she had difficulty performing tasks. She had to care for her disabled son which became difficult. She stated that she could not cook proper meals for herself and her son between the time of the injury and the surgery. She felt her son was malnourished. She described this as “a very stressful time”. The respondent stated that she started to develop a rash over her legs, back and buttocks one week after the surgery. The skin condition was diagnosed as lichen planus. It was treated and cleared up with time. The respondent was left with altered pigmentation of the skin, which she described as “very noticeable”, over the back, buttocks, legs and arms where the rash had been. She said that she resumed suitable duties from 26 September 2017, and her pre-injury duties from June 2018.[4]
[4] Respondent’s statement, [10]–[13].
The respondent was assessed by Dr Lai, who specialised in general, plastic and reconstructive surgery, at the request of her solicitors. Dr Lai reported on 7 August 2018. He assessed the respondent as suffering from permanent impairment of 12 per cent, comprised of 4 per cent in respect of the left upper extremity and 8 per cent in respect of scarring.[5] A claim for lump sum compensation was made on this basis on 6 September 2018.[6]
[5] Dr Lai’s report 7/8/18, ARD, p 24.
[6] ARD, p 8.
The appellant’s insurer (the insurer) had the respondent assessed by Dr Curtin, a hand and plastic surgeon, who reported on 30 November 2018.[7] Dr Curtin regarded the skin condition as idiopathic and probably unrelated to the surgery. He assessed whole person impairment in respect of the left scaphoid injury at 2 per cent. The insurer rejected the claim for lump sum compensation in a s 74 notice dated 12 December 2018.[8] It denied the condition of lichen planus was “consequential to [the respondent’s] work related left wrist injury”. If the assessed scarring from the skin condition was not compensable, the assessed permanent impairment as alleged in the respondent’s medical evidence was 4 per cent, which was insufficient to satisfy the threshold in s 66(1) of the Workers Compensation Act 1987. The claim for lump sum compensation was declined in its entirety.
[7] Reply, pp 1–7.
[8] ARD, pp 4–7.
The matter was listed for arbitration hearing on 24 March 2020. Mr P Perry appeared for the respondent and Mr Andrew Parker for the appellant. Given the circumstances of the COVID-19 pandemic, and the consequential impact on the Commission’s procedural arrangements, the hearing was conducted remotely, with the Arbitrator, the legal representatives and the respondent attending by telephone.[9] The matter proceeded on the written material, counsel addressed and the Arbitrator reserved his decision.
[9] Transcript 24/3/20 (T), T 3.33–4.10.
The Commission issued a Certificate of Determination dated 28 April 2020, accompanied by 9 pages of reasons.[10] There was a finding that the conceded left hand injury “was a material contribution to [the respondent’s] consequential condition of Lichen Planus”. There was a finding that the respondent “thereby suffered consequent post-inflammatory hyperpigmentation on her back, buttocks, legs and arms”. The matter was referred to an Approved Medical Specialist (AMS) to assess whole person impairment in respect of the left upper extremity and scarring. This appeal is brought against the finding, and referral to an AMS, on the basis that the condition of lichen planus was consequential on the conceded injury to the left upper extremity.
[10] Galea v Woolworths Ltd [2020] NSWWCC 132 (Reasons).
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
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 1998 Act have been met.
INTERLOCUTORY APPEAL
Section 352(3A) of the 1998 Act provides:
“(3A) 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.”
The orders made by the Arbitrator involve referral of the matter to an AMS for assessment of permanent impairment. Such orders have been regularly held to be of an interlocutory nature, as they do not finally dispose of the rights of the parties.[11] An appeal only lies with the leave of the Commission. The appellant concedes the decision appealed against is interlocutory. It submits that, in cases of this nature, leave is “routinely granted”. It submits such a course saves “costs, time and the resources of the Commission”.[12] The respondent states she does not oppose the application for leave.[13] In the circumstances, I am satisfied that it is desirable for the “proper and effective determination of the dispute” that leave pursuant to s 352(3A) of the 1998 Act be granted.[14]
[11] Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439, [11].
[12] Appellant’s submissions, Part A, [6].
[13] Respondent’s submissions, Part A, [6].
[14] See Matilda Cruises Pty Ltd v Sweeny [2018] NSWWCCPD 37, [27] and the cases cited therein.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[15] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[16] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[17]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[18]
[15] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[16] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[17] [1996] HCA 140; 140 ALR 227.
[18] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[19] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[20]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[21]
[19] [2017] NSWWCCPD 5, [67].
[20] [2001] FCA 1833, [28].
[21] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[22] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[23]
[22] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[23] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[24] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[25]
[24] [2020] NSWCA 54 (Hill).
[25] Hill, [20].
THE ARBITRATOR’S REASONS
The Arbitrator said there was agreement that the issue in dispute was “[d]id [the respondent] suffer a consequential condition by way of bodily disfigurement/scarring as a result of the injury?”[26] The Arbitrator noted there was agreement that:
(a) “On 27 June 2017 in the course of her employment [the respondent] suffered a fractured scaphoid on the left hand, for which liability was accepted”, and
(b) “[the respondent] came to surgery by way of open reduction and internal fixation on 26 July 2017 at the Macquarie University Hospital with Dr Michael Dowd, Plastic Surgeon”.[27]
[26] Reasons, [3].
[27] Reasons, [7].
The Arbitrator quoted the following medical opinions on causation dealing with the condition of lichen planus which affected the respondent:
“She developed a skin rash following surgery, on a background of no prior reported skin conditions. Lichen planus may be triggered by drugs, which in this case was likely related to the anaesthetic or post operative pain medications such as NSAIDs. She has suffered skin discolouration, scarring, and will require ongoing medication management.”[28] (Dr Lim, general practitioner)
“… Based on our clinical examination the clinical diagnosis for [the respondent] is lichen planus. This is an idiopathic autoimmune condition. The lesions apparently started one week after she has had hand surgery for the scaphoid bone on left hand. Itchy papules and plaques had initially started on the hands and then had generalised. Newer lesions were appearing at the time of consultation. Lichen planus is an idiopathic condition and it is probably unrelated to the surgery that [the respondent] underwent to her left hand. The skin condition is unrelated to her current employment as a store person at Woolworths. My understanding is that the skin condition was not a pre-existing condition and has occurred only one week after her surgery. Her lichen planus is currently not aggravated by any pre-existing or degenerative condition.”[29] (Dr Abdulla, consultant dermatologist)
“... she had significant trouble looking after herself and her disabled son. She could not cook proper meals to feed her son and herself and felt that she was malnourished in between the injury and the date of the operation, which was about a month. During this time, she felt very stressed mentally, worrying about the care for her son.”[30] (Part of the history recorded by Dr Lai, general, plastic and reconstructive surgeon.)
“… it is my opinion that her malnourishment and stress between the date of the injury and the date of the operation on balance of probability caused the Lichen Planus condition to erupt over her trunk and limbs. This eruption happened one week after the surgery.”[31] (Dr Lai)
“My understanding of this condition is that the causes leading to its appearance are incompletely understood. The condition apparently has some features consistent with an autoimmune disease and several precipitating factors have been proposed, but are not proven. These factors include hepatitis C infection, exposure to the flu vaccine, certain nonsteroidal anti-inflammatory drugs and medications for heart disease and blood pressure. Surgical trauma or stress has not been advanced as a possible cause. I concur with the expert opinion of Dr Ebrahim Abdulla Consultant Dermatologist, who has stated that lichen planus is an idiopathic condition and is probably unrelated to the surgery that Ms Galea underwent to her left hand.”[32] (Dr Curtin, hand and plastic surgeon)
[28] Reasons, [8].
[29] Reasons, [11].
[30] Reasons, [12].
[31] Reasons, [14].
[32] Reasons, [15].
The Arbitrator summarised the submissions of counsel.[33] He said the respondent carried the onus on the causation issue.[34] The Arbitrator said:
“It is now accepted law that, in order to establish liability for a consequential condition, an applicant must show that the subject injury has materially contributed to the condition, taking into account the statutory context in which the principle is to be applied. The statutory context in the present case is s 4 of the 1987 Act, and whether the onset of the lichen planus was a consequential condition caused by the admitted s 4 injury.”[35] (excluding footnotes)
[33] Reasons, [20]–[42].
[34] Reasons, [43].
[35] Reasons, [43].
The Arbitrator set out what he described as “[e]videntiary facts”. He said these were compelling and established the following:
“(a) Ms Galea had not suffered any skin condition prior to the surgery.
(b) The condition came on within a week of the surgery.
(c) During the period between the subject injury on 27 June 2017 and the surgery on 26 July 2017, Ms Galea was stressed by the restrictions her injury caused on her ability to feed both her autistic son and herself. She felt that her son was malnourished during that time.
(d) Whilst no evidence was lodged as to the treatment Ms Galea was then undergoing, an inference is available that she was being treated by anti-inflammatory medication. I infer that Dr Lim’s reference to Ms Galea’s medication regime was based on his knowledge of her treatment under Dr Hamsi, which he would have had available when her management was transferred from Dr Hamsi to him on 21 July 2017.
(e) Dr Lim was the treating GP in the period immediately before and after the surgery, and his evidence is not without relevance. He suggested that ‘the anaesthetic or post-operative pain medication’ could trigger lichen planus, and I infer that the pre and post-operative pain medication was administered under his auspices. A further inference is available that Ms Galea was experiencing pain which caused the restrictions she described.”[36]
[36] Reasons, [44].
The Arbitrator quoted the following passage[37] from Seltsam Pty Limited v McGuiness:
“In circumstances where the aetiology of a disease is uncertain, or subject to significant scientific dispute, the Courts are not thereby disenabled from making decisions as to causation on the balance of probabilities. As Herron CJ said in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242:
‘Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try’.”[38]
[37] Reasons, [45].
[38] [2000] NSWCA 29; 49 NSWLR 262; 19 NSWCCR 385 (Seltsam), [94].
The Arbitrator said Dr Abdulla thought that a causal connection was “not probable” as the condition was idiopathic and there were autoimmune considerations. The Arbitrator said that Dr Abdulla did not deny that a connection was possible. The Arbitrator said that Dr Curtin described the causes as “incompletely understood” and said there were some features of autoimmune disease. He referred to known precipitating factors, which included “certain nonsteroidal anti-inflammatory drugs”. Dr Curtin agreed with Dr Abdulla that the condition was probably unrelated to the surgery.[39]
[39] Reasons, [46]–[48].
The Arbitrator said that Dr Lai found there was a causal connection by virtue of the stress the respondent suffered whilst awaiting surgery. The Arbitrator said the presence of stress was supported by the respondent’s account, which he had “no reason to disbelieve”.[40] The Arbitrator referred to Dr Lim’s opinion. Dr Lim thought the lichen planus condition was likely related to medication. This included the anaesthetic and post-operative non-steroidal anti-inflammatory drugs. The Arbitrator said there was no evidence that the respondent had taken such drugs. The Arbitrator said he inferred Dr Lim’s opinion was based on knowledge of the medication he had been prescribing.[41]
[40] Reasons, [49].
[41] Reasons, [50].
The Arbitrator said it followed that the respondent had discharged her onus. He said there were many possible causes suggested, he was not required to point to any one in particular. The question of whether “the surgery was a material contribution to the onset of [the respondent’s] Lichen Planus has accordingly been answered in the affirmative”.[42]
[42] Reasons, [51].
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Arbitrator committed an error of law in finding that lichen planus was causally related to the accepted left hand injury. (Ground No. 1)
(b) The Arbitrator committed an error of law by reversing the onus of proof. (Ground No. 2)
(c) The Arbitrator committed an error of law by failing to provide the appellant with procedural fairness by not dealing with its submissions. (Ground No. 3)
(d) The Arbitrator committed an error of law and/or fact by failing to place adequate weight upon the opinions of Dr Curtin and Dr Abdulla. (Ground No. 4)
(e) The Arbitrator committed an error of law and/or fact by failing to place little probative value upon the opinions of Dr Lai and Dr Lim. (Ground No. 5)
(f) The Arbitrator committed an error of law by making impermissible inferences regarding the respondent’s consumption of medication. (Ground No. 6)
GROUNDS NOS. 1 AND 2
These grounds raise related issues going to whether the Arbitrator erred in concluding that the respondent had discharged her onus on the question of causation. It is convenient to deal with them together.
Appellant’s submissions
The appellant refers to the reasons at [45] to [51] as the “dispositive paragraphs”. It submits it is evident from these paragraphs that the Arbitrator formed his conclusion on the basis there was no medical evidence which established the causal connection was impossible. It submits this is a wrong test.[43] The appellant quotes the following passage from Tudor Capital Australia Pty Limited v Christensen:
“However, I accept that in EMI (Aust) Ltd v Bes, Herron CJ was of the view that ‘if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable’. This case proceeded as I understand it on the basis that the fact medical science said the connection between psychological stress and an increased susceptibility to viral illness was ‘unproven’, meant it was ‘possible’. This opened the door to the temporal inquiry. Nevertheless, that inquiry could not be undertaken in isolation from the medical evidence.”[44]
[43] Appellant’s submissions, [18]–[23].
[44] [2017] NSWCA 260 (Christensen), [383].
The appellant also refers to Cruceanu v Vix Technology (Australia) Ltd in which Phillips P said:
“… the fact that Dr Farey finds that it was possible, permits the finder of fact, as is stated in both May and Christensen above, to proceed to assess the evidence to establish whether or not the case has been made out.”[45]
[45] [2020] NSWWCCPD 7 (Cruceanu), [60].
The appellant submits the Arbitrator failed to apply these principles. Rather, he proceeded on the basis that in the absence of medical evidence that the causal connection was impossible, causation was established. It submits this was erroneous.[46]
[46] Appellant’s submissions, [24]–[28].
The appellant submits the respondent carried the onus of proof, referring to Commonwealth v Muratore.[47] It refers to the reasons at [45] to [46]. The Arbitrator said that the appellant’s medical evidence did not indicate the causal relationship was impossible. The appellant submits the reasons at [51] demonstrated that the Arbitrator’s conclusion was based on the lack of evidence that the connection was impossible. The appellant submits this did not “shift the ultimate evidentiary onus” onto the appellant. It submits the Arbitrator erroneously shifted the ultimate evidentiary onus onto the appellant to disprove the connection.[48]
[47] [1978] HCA 47; 141 CLR 296.
[48] Appellant’s submissions, [30]–[35].
Respondent’s submissions
The respondent, as a preliminary matter, refers to the reasons at [52] where the Arbitrator “inadvertently substituted the word surgery for the word injury” (emphasis in original). The reasons at [52] read:
“I therefore find that the surgery was a material contribution to [the respondent’s] consequential condition of Lichen Planus.”
The respondent submits the finding was that the left hand condition was the cause of the condition. It submits the word “surgery” is a slip and should be replaced with the word “injury”. It submits the way in which Ground No. 1 is framed accepts this was the true nature of the finding.[49]
[49] Respondent’s submissions, [3]–[10].
The respondent submits the causation finding, which the appellant submits is an error of law, is at best an error of fact.[50]
[50] Respondent’s submissions, [12].
The respondent submits the absence of medical evidence, that the causal relationship was impossible, did not represent the basis of the Arbitrator’s finding. The respondent submits the Arbitrator quoted a passage from Seltsam that if medical science accepts a causal connection as possible then “the judge after examining the lay evidence may decide that it is probable”. The respondent submits the Arbitrator observed there was medical evidence “that a causal connection was either possible or likely”. The respondent submits the Arbitrator clearly took account of the five matters referred to in the reasons at [44], which he found “compelling” (see [20] above). The factual findings at [44] immediately followed the reasons at [43], in which the Arbitrator correctly stated the principles he was required to apply. The respondent submits Ground No. 1 is not made out.[51]
[51] Respondent’s submissions, [13]–[19].
The respondent submits the appellant’s submissions in support of Ground No. 2 suffer from the same difficulty, they do not take account of the matters described at [44]. The medical evidence did not indicate the causal connection was impossible. The Arbitrator was then guided by the matters set out at [44] of the reasons, in concluding that the injury made a material contribution to the skin condition.[52]
[52] Respondent’s submissions, [20]–[21].
Appellant’s submissions in reply
The appellant submits the Arbitrator failed to apply the correct test of causation, which resulted in an error in his fact-finding regarding causation.[53] The submissions in reply do not take issue with the respondent’s submission that there was a slip, in the Arbitrator’s reference to a causal connection to the left hand surgery, as opposed to the left hand injury (see [31] to [32] above). In the circumstances I accept the respondent’s submission that the reference should have been to the left hand “injury”, rather than “surgery”.
[53] Appellant’s submissions in reply, [1]–[2].
Consideration
It is necessary that the Arbitrator’s reasons be read as a whole.[54] The Arbitrator briefly summarised the test on causation to be applied, which he described as “accepted”, in the reasons at [43]. The appellant’s submissions do not identify specific error in the test the Arbitrator there set out, notwithstanding the general submission that the correct legal test was not applied. The respondent accepts that, if the Arbitrator reversed the onus, this would be error. It submits this is not what the Arbitrator did.[55] The respondent submits that, having correctly observed that the evidence did not deny the possibility of a connection, the Arbitrator was “guided significantly by the matters set out in [44]” of the reasons.
[54] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
[55] Respondent’s submissions, [20].
The appellant’s submissions proceed on the basis that the “dispositive paragraphs” of the reasons were those at [45] to [51]. That is the discussion of what the Arbitrator described as the “medical question”. In considering the test applied by the Arbitrator, it is appropriate to have regard to the reasons at [43], which set out the Arbitrator’s description of the test that he said was to be applied.
The passage of Seltsam which the Arbitrator quoted included a well-known passage from the judgment of Herron CJ in EMI Australia Ltd v Bes.[56] That passage included the statement that “if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable”. The Arbitrator approached the causation issue in light of the passage from Bes which was quoted. It is artificial to analyse the reasons on the basis that the reasoning on causation is confined to the reasons at [45] to [51]. I accept the respondent’s submission that the lay findings at [44] are also part of the dispositive reasoning. The findings regarding the lay evidence were relevant to the causation issue and the Arbitrator was entitled to have regard to them.
[56] [1970] 2 NSWR 238 (Bes).
This does not conclude the question of whether the Arbitrator dealt correctly with the causation issue which was raised. The appellant relies on Christensen, in which McColl JA said that if the causal connection is possible, this “open[s] the door to the temporal inquiry”, an inquiry that “could not be undertaken in isolation from the medical evidence”. The appellant also refers to the Presidential decision in Cruceanu (see [27] to [28] above). The appellant submits the Arbitrator did not proceed in a fashion consistent with Christensen and Cruceanu.
The appellant’s medical evidence allowed the possibility that there could be a causal connection between the conceded left hand injury and the condition of lichen planus. There were competing medical cases on the causation issue.
In Christensen, authorities regarding the sufficiency of proof on issues of causation (including Bes) were discussed at length.[57] Dealing with the adequacy of an arbitrator’s consideration of a causation issue it was said:
“The differences between the expert evidence were capable of being resolved rationally by examination and analysis. In my view, the Arbitrator’s reasons demonstrate that he failed to undertake that exercise. He effectively rejected Professor Keogh’s evidence on a demeanour basis, as the Deputy President found. Further, he failed to have regard to the significant aspects of Dr Rainer’s evidence particularly regarding the possibility of viral myocarditis being missed as a function of sampling error which Dr Rainer said was ‘highly unlikely’. The Arbitrator’s approach appears to have been that as long as something was a possibility, evidence to the contrary did not have to be considered. The Deputy President should have held that the Arbitrator’s failure to analyse the competing theories of Mr Christensen’s death by reference to all the medical evidence demonstrated a failure to give adequate reasons and constituted an error of law.”[58]
[57] Christensen, [365]–[383].
[58] Christensen (per McColl JA, Macfarlan JA agreeing), [394].
The temporal inquiry could not be undertaken in isolation from the medical evidence (see [27] above). The Arbitrator was required, in the circumstances, to seek to resolve the medical conflict by way of rational analysis. Grounds Nos. 3, 4 and 5, which deal with the Arbitrator’s treatment of the medical evidence, are considered below. For reasons which appear below, the approach taken by the Arbitrator did not adequately deal with the medical evidence and was inconsistent with the decision in Christensen. As a consequence, Grounds Nos 1 and 2 succeed.
GROUND NO. 6
It is convenient at this point to deal with Ground No. 6.
Appellant’s submissions
The Arbitrator, in the reasons at [20], made findings regarding the ingestion of medication that are reproduced at subparas (d) and (e) of [20] above. Additionally the Arbitrator, at [50], made a finding:
“I have already referred to the opinion of Dr Lim. He thought the Lichen Planus condition was ‘likely’ related to the medication, which undeniably included the anaesthetic, but in addition the pain medications such as post-operative non-steroidal anti-inflammatory drugs. As I have indicated above, although no evidence was before me as to whether or not Ms Galea had actually taken such drugs I infer that Dr Lim’s opinion was based upon his knowledge of the medication he had been prescribing.”
The appellant submits there was no other evidence relied upon by the Arbitrator for drawing the inference that “the respondent had actually consumed such medication in the pre- and/or post-operative period to the extent required to cause such a condition”. The appellant submits the evidence did not provide a reasonable basis for drawing such an inference.[59]
[59] Appellant’s submissions, [72]–[76].
Respondent’s submissions
The respondent submits there was unchallenged evidence that she experienced extreme pain both before and after the surgery. Dr Lim proceeded on the basis that “her treatment would have included pain medications such as NSAIDS”. The respondent submits it was open to the Arbitrator to conclude it was far more likely than not that this was the case, and that this was “one of a number of causal links between the left hand injury and the eruption”.[60]
[60] Respondent’s submissions, [31]–[32].
Consideration
In Bradshaw v McEwans Pty Ltd, the High Court said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”[61]
[61] (1951) 217 ALR 1, [5].
The above passage from Bradshaw was described as “the test to be applied” in Luxton v Vines.[62] In Flounders v Millar Ipp JA said:
“It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture.”[63]
[62] [1952] HCA 19; 85 CLR 352 per Dixon, Fullagar and Kitto JJ, [8].
[63] [2007] NSWCA 238, [35].
An attack on the availability of an inference drawn by an arbitrator, in an appeal pursuant to s 352 of the 1998 Act, is subject to the principles discussed at [12] to [16] above. It is insufficient that I would have drawn a different inference. It must be shown that the Arbitrator was wrong.
The Arbitrator and the parties have proceeded on the basis that the reports and other material from Dr Lim did not provide direct evidence of the medication consumed by the respondent, following the left hand injury up to the development of the skin condition.
The Arbitrator drew an inference that Dr Lim would have been made aware of the treatment being administered by Dr Hamsi, before the respondent’s care was transferred to him from Dr Hamsi. The Arbitrator additionally inferred that Dr Lim’s opinion reflected his knowledge of the medication he then prescribed. The Arbitrator specifically acknowledged there was no evidence that the respondent was being treated with anti-inflammatory medication. In his report dated 21 July 2017, Dr Lim referred to management as including “Simple analgesia”.[64] The doctor’s report dated 20 November 2018 also referred to his management plan as including “Simple analgesia”.[65] Direct evidence was not adduced from the respondent regarding the medications she took.
[64] ARD, p 27.
[65] ARD, p 35.
The submissions do not suggest there was any evidence that Dr Hamsi’s treatment regime, including a record of prescribed medications, was made available to Dr Lim. It may or may not have been. The inference drawn by the Arbitrator, regarding medications that were prescribed by Dr Hamsi, is conjecture. One could not be satisfied of its correctness on the probabilities. It was not reasonably open.
There was an additional inference drawn, that medication consumed by the respondent, from when she came under Dr Lim’s care, included “pain medications such as post-operative non-steroidal anti-inflammatory drugs” (see [45] above). The reason given for drawing this inference was that “Dr Lim’s opinion was based upon his knowledge of the medication he had been prescribing”. In my view, it was reasonably open to the Arbitrator to draw this inference on the probabilities. It cannot, in my view, be said that the Arbitrator was wrong to draw this inference. The inference is of limited probative value in any event, given its general nature (“pain medications such as post-operative non-steroidal anti-inflammatory drugs”).
It follows that Ground No. 6 succeeds in respect of the inference drawn on the basis of the medication prescribed by Dr Hamsi, but not in respect of that prescribed by Dr Lim.
GROUNDS NOS. 3, 4 AND 5
These grounds raise issues going to how the Arbitrator dealt with the parties’ medical cases. They are conveniently dealt with together.
Appellant’s submissions
The appellant quotes the following passage from Wang v State of New South Wales:
“The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.”[66]
[66] [2019] NSWCA 263 (Wang), [63].
The appellant refers to submissions it made before the Arbitrator. The first dealt with Dr Lai. The appellant submitted that Dr Lai did not explain his qualifications for expressing his opinion, and that Dr Lai’s opinion about stress was outside his speciality. The appellant submitted that Dr Lai’s opinion was of “little probative value” in those circumstances.[67] The second dealt with Dr Lim. The appellant submitted it was unclear what expertise Dr Lim, a general practitioner, relied on in forming his opinion.[68] The appellant submits the Arbitrator did not address these submissions. They were part of a substantive argument put by the appellant and were “highly relevant” on the causation issue. The appellant submits this was a failure by the Arbitrator to respond to a “substantial, clearly articulated argument that was material to the central issue”.[69]
[67] Reasons, [22]–[23].
[68] Reasons, [24].
[69] Appellant’s submissions, [36]–[42].
The appellant submits the Arbitrator failed to give sufficient weight to the reports of Dr Abdulla and Dr Curtin. It submits these doctors were “properly qualified”. The appellant submits the only consideration given to these reports was in the “dispositive paragraphs”. Christensen required the Arbitrator, if medical science regarded causation as possible, to then conduct an inquiry into the evidence and to properly consider it. The appellant submits the only consideration given by the Arbitrator, to the reports of Dr Abdulla and Dr Curtin, was to note these doctors did not consider a causal connection to be impossible. The appellant submits the Arbitrator did not analyse the opinion evidence of Dr Abdulla and Dr Curtin and indicate why he “effectively placed no weight” upon it. This is submitted to constitute error.[70]
[70] Appellant’s submissions, [43]–[50].
The appellant refers to Makita (Australia) Pty Ltd v Sprowles,[71] and quotes from the judgment of Heydon JA. The quoted passages refer to the need for an expert to demonstrate that there is a field of “specialised knowledge” and that the expert’s opinion is “wholly or substantially based on the witness’s expert knowledge”. The appellant refers to South Western Sydney Area Health Service v Edmonds.[72] The appellant submits that in the Commission “the question of acceptability of expert evidence will not be one of admissibility but of weight”. It refers to a passage from Christensen which includes:
“In cases where the experts differ, the lay tribunal must apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted, an exercise which cannot be carried out without knowing the essential integers of the expert opinion.”[73]
[71] [2001] NSWCA 305 (Makita).
[72] [2007] NSWCA 16.
[73] Christensen, [364].
The appellant submits that it relied on the above at first instance in arguing that the opinions of Dr Lai and Dr Lim should be “given little weight”. It submits the Arbitrator did not have regard to those submissions, and the weight given to the opinions of Dr Lai and Dr Lim was “unconstrained and unrestricted despite this deficiency”.[74]
[74] Appellant’s submissions, [51]–[58].
The appellant additionally submits the weight of Dr Lim’s opinion was reduced because it was not based on facts that were proved on the evidence. Dr Lim referred to a proposition that lichen planus may be triggered by drugs, including in this case anaesthetic and post-operative pain medications such as NSAIDS. The appellant refers to the reasons at [44](d) and (e) where the Arbitrator inferred that the respondent was treated with “anti-inflammatory medication”. The appellant submits there was no evidence of what general pain medication the respondent consumed. The appellant submits Dr Lim’s opinion should not have been accepted in those circumstances.[75]
[75] Appellant’s submissions, [64]–[69].
Respondent’s submissions
The respondent submits the Arbitrator specifically referred to the appellant’s submissions regarding the weight to be afforded to the reports of Dr Lai and Dr Lim. The respondent submits the Arbitrator gave reasons at “44(d), (e) and (f)” [sic, (d) and (e)] for finding Dr Lim’s evidence “compelling”, and at [49] for accepting Dr Lim. It is submitted the Arbitrator articulated and dealt with the appellant’s submissions on this topic.[76]
[76] Respondent’s submissions, [22]–[24].
The respondent submits the Arbitrator noted the views of Dr Abdulla and Dr Curtin and noted the “causal connection by virtue of the stress [the respondent] was under whilst awaiting surgery”. He weighed the views of these doctors. The respondent submits the opinion of Dr Abdulla (accepted by Dr Curtin) was “not counter to the conclusion reached by the [A]rbitrator”. The Arbitrator’s preference for a view that supported the causal link between the left hand injury and the skin condition did not mean the opposing view was denied adequate weight. It does not mean there was an error of fact or law.[77]
[77] Respondent’s submissions, [25]–[29].
The respondent submits Dr Lai and Dr Lim were qualified to express an opinion. The Arbitrator gave reasons for preferring the evidence of those doctors.[78]
[78] Respondent’s submissions, [30].
Appellant’s submissions in reply
The appellant submits the respondent’s submissions dealing with Ground No. 3 (see [63] above) do not deal with “the substance of the complaint”. It submits detailed submissions dealing with these matters were made at first instance, were recorded in the reasons at [22] and [24] and were not dealt with by the Arbitrator.[79] Referring to Ground No. 5, the appellant submits detailed submissions were made going to the opinions of Dr Lai and Dr Lim and were not dealt with. Weight was given to the opinions of these doctors, which were not entitled to any weight.[80]
[79] Appellant’s submissions in reply, [3]–[4].
[80] Appellant’s submissions in reply, [5]–[6].
Consideration
The Arbitrator found the appellant’s medical case did not support a conclusion that it was impossible that there was a causal link between the left hand injury and the condition of lichen planus. That conclusion was consistent with the evidence and is not attacked on this appeal. Consistent with the decision in Christensen, it was then necessary that the Arbitrator engage in the temporal inquiry in conjunction with a consideration of the medical evidence (see [27] above). It was necessary that the Arbitrator seek to resolve the medical issue “rationally by examination and analysis” (see [42] above). In Hume v Walton it was said:
“… where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”[81]
[81] [2005] NSWCA 148 (per McColl JA, Tobias JA agreeing), [69].
The Arbitrator described the issues raised by the parties in their submissions. The appellant challenged the qualifications of Dr Lai and Dr Lim to express the medical opinions they did on the causation issue (arguments repeated on this appeal).[82] The appellant challenged whether the factual assumptions on which the views of Dr Lai and Dr Lim were based (malnourishment, stress, the ingestion of medication) were made good on the evidence.[83] This potentially raised issues of weight on the basis of Hancock v East Coast Timber Products Pty Limited.[84] The Arbitrator noted that the respondent’s counsel acknowledged he bore an onus of proving that the left hand injury had caused a material contribution to the condition of lichen planus.[85] The Arbitrator noted the lay evidence that tended to support a temporal connection.[86] He noted submissions by the respondent’s counsel that there was evidence from which it could be inferred that the respondent had been under stress and malnourished.[87] He acknowledged a submission from the respondent’s counsel that Dr Curtin’s opinion was “probably taken from the literature, and was speculative”. The Arbitrator noted a submission by the respondent that the reports of Dr Lai and Dr Lim, together with the lay evidence, supported a finding on the probabilities that stress, malnourishment and pain following the surgery caused the eruption of the skin condition.[88]
[82] Reasons, [22], [24], [42].
[83] Reasons, [23], [25].
[84] [2011] NSWCA 11; 8 DDCR 399, [82]–[83].
[85] Reasons, [30].
[86] Reasons, [31].
[87] Reasons, [33].
[88] Reasons, [38]–[39].
There were multiple issues relevant to resolution of the medical dispute in the matter, including issues associated with the lay evidence. The Arbitrator made factual findings set out at [20] above. The Arbitrator’s summation of the medical opinions appears at [18] above. The Arbitrator’s resolution of the medical issues appears in the reasons at [45] to [51]. He referred to Bes. He noted the opinions of Dr Abdulla and Dr Curtin and said that these doctors did not “deny that such a connection is impossible [sic, possible]”.[89] He noted the opinions of Dr Lai and Dr Lim.[90] The Arbitrator made an ultimate finding of fact:
“It follows that I am satisfied that the [respondent] has satisfied her onus. Mr Parker appeared to suggest that there were so many possible causes thrown up, that I would not be able to determine which had been actually been responsible for the onset. On the contrary, there are so many causes that they may all be partly responsible. I am not required to point to any one in particular. The question as to whether the surgery was a material contribution to the onset of [the respondent’s] Lichen Planus has accordingly been answered in the affirmative.”[91]
[89] Reasons, [45]–[48].
[90] Reasons, [49]–[50].
[91] Reasons, [51].
The appellant’s attack on the expert qualifications of the respondent’s medical witnesses and their specialist expertise was not dealt with. The appellant’s argument, that the reports of Dr Abdulla and Dr Curtin were, because of their expertise, entitled to greater weight than those of Dr Lai and Dr Lim, was not dealt with. The finding that the factual basis of the assumptions underlying the respondent’s medical case (stress and malnourishment) was established, was based on a bare finding without reference to specific evidence. The Arbitrator found that “pain medications such as post-operative non-steroidal anti-inflammatory drugs” were consumed prior to the onset of lichen planus. This was based on an inference described at [50] of the reasons, together with the inferences described at subparas (d) and (e) of the reasons at [44]. The availability of these inferences is discussed above in the consideration of Ground No. 6. I have concluded the inference drawn relating to the ingestion of medication, whilst the respondent was under the care of Dr Hamsi, was erroneous.
The Arbitrator did not “enter into the issues canvassed” so as to explain why he preferred the respondent’s medical case over that of the appellant. The approach taken to the expert evidence was inconsistent with that required consistent with Christensen (see the passage quoted at [42] above). Having found that Bes had application, it remained, in the circumstances of the case, necessary that the Arbitrator deal with causation, and the parties’ medical cases, in a way consistent with the decision in Christensen. This did not occur and constitutes error. The approach taken by the Arbitrator was consistent with the summation by the appellant set out at [59] above. This had the effect that, having concluded the appellant’s medical case did not exclude causation as a possibility, the Arbitrator then inverted the onus in how he assessed the parties’ medical cases.
Grounds Nos. 3, 4 and 5 succeed.
DISPOSITION OF THE APPEAL
The various grounds have succeeded, Ground No. 6 in part. The appropriate order is that the matter be remitted for redetermination before a different Arbitrator.
DECISION
The Arbitrator’s decision dated 28 April 2020 is revoked.
The matter is remitted for redetermination by another Arbitrator.
Michael Snell
DEPUTY PRESIDENT
19 August 2020
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