CHEP Australia Limited v Strickland

Catchwords

(1998) 197 CLR 172 Chep Australia Ltd v Strickland [2012] NSWWCCPD 27 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32(1948) 76 CLR 632 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249(2007) 5 DDCR 286 The King v ConnellEx parte The Hetton Bellbird Collieries Ltd [1944] HCA 42

Judgment (10 paragraphs)

[1]

Judgment 1BASTEN JA: An appeal lies to this Court from proceedings before the Workers Compensation Commission constituted by a Presidential member, where a party is aggrieved by a decision of the Presidential member "in point of law": Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act"), s 353(1). The background to the present appeal and the grounds of appeal are set out by Barrett JA. I agree with his conclusion that the appeal should be dismissed and the appellant ordered to pay the respondent's costs. 2The appellant's grounds of challenge to the decision of the President of the Commission were misconceived: they failed to come to grips with the need to identify a decision which was erroneous in point of law. Refusal to allow further evidence 3The President was dealing with an appeal against a decision of the Commission constituted by an arbitrator, pursuant to s 352 of the Workplace Injury Act. That provision contains a prohibition on the receipt of further "evidence", except with leave of the Commission: s 352(6). (The Commission is not bound to apply the rules of evidence applicable in courts: s 354(2).) Since the commencement on 1 February 2011 of amendments restricting the nature of an appeal to a Presidential member, the power to grant leave to call further evidence has also been restricted: Workers Compensation Legislation Amendment Act 2010 (NSW), Sch 2 [17]. Section 352(6) now provides that the Commission "is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case". 4Leave is thus conditioned on the applicant passing through one of two gateways. The first is a "fresh" evidence requirement: it was not suggested that that gateway was available. The alternative was that the failure to grant leave would cause "substantial injustice". However, that was not a matter to be assessed by this Court, but by the President of the Commission. The President was not so satisfied. (Once through a gateway, the discretionary power was engaged: however, where it had been established that the failure to admit further evidence would cause substantial injustice, it is doubtful that any residual discretion would remain to exclude the further material, in most cases.) 5The reasoning of Glass JA in Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139 at 156 indicates that the party bearing the onus of establishing a matter to the satisfaction of the Commission (in this case that further evidence should be admitted) will only be able to challenge the refusal to be so satisfied if the Presidential member has misdirected himself or herself in point of law. As explained by Latham CJ in The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: "It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. ... It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide." 6The only relevant basis of challenge was that the President misdirected himself in point of law. The appellant submitted he did so by substituting for the test of "substantial injustice" the question whether the admission of the proffered medical notes would have led to a different result. Whether such a paraphrase of the section will demonstrate error in point of law will depend upon the circumstances. There may be cases where a refusal to consider the evidence may lead to procedural injustice, but not necessarily a different result. However, that was not this case. Further, to ask whether the new material "would" lead to a different result suggests that it must be assessed. However, that would tend to defeat the purpose of a 'gateway' to admission. 7The President expressly analysed the proffered evidence and its possible effect if taken into account. The President was satisfied that the medical notes which had not been before the arbitrator "add nothing to the evidence already before the arbitrator": Reasons at [124]. That was a finding of fact which was open to him. Once that assessment had been made, the paraphrase of the statutory test revealed no error of law. The ground of appeal must be rejected. Reliance on Dr McKechnie's Report 8The second challenge involved an attempt by the appellant to demonstrate that Dr McKechnie's opinion, upon which the arbitrator had relied, lacked probative value. An error in point of law could be demonstrated if it could be shown that the ultimate decision, namely that there was a causal connection between the taking of Mobic (for an earlier workplace injury) and the ruptured aneurysm (for which the respondent claimed compensation) was not supported by any probative material. An essential element of the appellant's case was that Dr McKechnie's opinion was the only expert evidence before the Commission supporting the causal relationship. That was correct. However, Dr McKechnie did provide such support: the only question was whether he had been misled as to the circumstances upon which he relied for his opinion. The appellant submitted that Dr McKechnie relied upon a letter from the respondent's solicitors setting out the facts, erroneously it was submitted. However, the solicitors also supplied the underlying medical records (other than the notes discussed above). The President was satisfied that Dr McKechnie based his opinion upon his "review of the documentation that was forwarded to him": at [159]. That finding was not open to challenge. Accordingly, the ground of appeal must fail. 9MACFARLAN JA: I agree with Barrett JA. 10BARRETT JA: This appeal is brought from a decision of the Workers Compensation Commission constituted by His Honour Judge Keating, President of the Commission. The decision was made on 24 May 2012 upon an appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 from a decision of an arbitrator: see Chep Australia Ltd v Strickland [2012] NSWWCCPD 27. 11The issue before the arbitrator was whether a particular injury arose out of or in the course of the respondent's employment by the appellant when the allegation was that, in a direct sense, the injury resulted from the taking of certain medication that had been prescribed for a separate and undisputed workplace injury.

Exclusion of Dr Hedge's notes 21Dr Hedge is a general practitioner. The respondent had been a patient of Dr Hedge for some time before the events relevant to these proceedings. A brief certificate of Dr Hedge was in evidence before the arbitrator. It was as follows: "This is to certify that Ms Strickland is a patient who currently attends my surgery. Ms Strickland attended surgery for severe headaches and hypertension follow up on the following dates: 26 August 10, 11 October 10, 12 October 10, 15 October 10." 22This certificate was among several documents sent by the respondent's solicitors to the appellant's insurer. 23Dr Hedge's notes were contemporaneous records of the respondent's consultations over the period 12 February 2010 to 2 December 2010. They contained information additional to that in the certificate which covered the period 26 August 2010 to 15 October 2010. In particular, the notes recorded the respondent's blood pressure, as taken by Dr Hedge, on each of the four dates mentioned in the certificate and other dates both before and after those in the certificate. 24The appellant says that Dr Hedge's notes would have been relied on to amplify Dr Hedge's certificate, to show blood pressure history (or, more particularly, a history of elevated blood pressure) and to ground a submission that there had been no sudden elevation of blood pressure after ingestion of Mobic began. 25The Presidential member declined to admit Dr Hedge's notes into evidence upon the appeal. The view was taken that the notes, if available, would not advance the appellant's case and were consistent with the respondent's case. The analysis in relation to the question of their admission was as follows: "The test for the admission of the notes is not one of prejudice, but whether the exclusion of the evidence would result in a substantial injustice. That is, would the admission of the notes at the arbitration have led to a different result? That question must be answered in the negative. The notes add nothing to the evidence already before the Arbitrator. That evidence was that Ms Strickland was known to suffer from pre-existing hypertension and that, on 26 August 2010 and during the period 11 to 15 October, she attended Dr Hedge for severe headaches and hypertension follow-up. Therefore, there is no injustice in excluding the admission of the notes on appeal." 26The Presidential member thus concentrated on the question of injustice. 27In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence "would cause substantial injustice in the case". The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters. 28There was no dispute that Dr Hedge's notes were available and could reasonably have been obtained by the appellant. It was for that reason that the Presidential member concentrated on the second threshold question, that is, whether failure to grant leave to introduce the notes into evidence "would cause substantial injustice in the case". That question was approached according to what the Presidential member obviously regarded as a paraphrase: "That is, would the admission of the notes at the arbitration have led to a different result?" 29The Presidential member answered that question in the negative, taking the view that Dr Hedge's notes would have added nothing material to the evidence already before the arbitrator - which showed "that Mrs Strickland was known to suffer from pre-existing hypertension and that, on 26 August 2010 and during the period 11 to 15 October, she attended Dr Hedge for severe headaches and hypertension follow-up". 30Counsel for the appellant submitted that the Commission misdirected itself in law in construing the "substantial injustice" criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so. 31That construction cannot be accepted. The part of s 352(6) concerning "substantial injustice" does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence "would cause" substantial injustice in the case. There must therefore be a decision as to the result that "would" emerge if the evidence were taken into account and the result that "would" emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion. 32The Presidential member referred with approval to the decision in Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7 where, in relation to the s 352(6) power to receive further evidence, reliance was placed on the following passage in the judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at [111]: "Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial." 33That statement is consistent with what was said by Dixon J in Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 at 642. But it is a statement about the significance of further evidence where the question is whether there should be a new trial. The present context is not of that kind. The question here is as to the reception of further evidence upon an appeal the scope of which is confined in the way stated in s 352(5) of the Workplace Injury Management and Workers Compensation Act: "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." 34The power of the appellate tribunal upon such an appeal is a narrow power to correct operative error of fact, law or discretion. The power of the Presidential member to admit further evidence (subject to satisfaction of one of the statutory pre-conditions) was therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was affected by such error: Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [66]. 35The only conceivable correction of present relevance was correction of some error of fact, being an error as to the respondent's hypertensive state at some time or times within the period 26 August 2010 to 15 October 2010 covered by Dr Hedge's certificate. The notes contained some detail on that matter that was absent from the certificate. The question is whether the further evidence is indicative of error of fact by reason of absence of the additional information contained in the notes, compared with the information in the certificate. 36It is important to note the role played by Dr Hedge during the relevant period. The Presidential member recorded that the respondent had visited "the company doctor" (a reference to a practice with which Dr Affleck and Dr Webb were associated) in 2009 on account of pain in her wrist. It was Dr Affleck who prescribed Mobic on 6 August 2010. The respondent first took Mobic in mid-August 2010. Dr Affleck prescribed Mobic again on 19 August 2010 and 7 September 2010. Certain of the respondent's visits to Dr Hedge (26 August 2010 to 15 October 2010) thus occurred during the period she was under the care of the practice of Dr Affleck and Dr Webb. The respondent saw Dr Webb in early October 2010 and it was on 7 October 2010 that he recommended that she stop taking Mobic. She re-commenced on 28 October 2010. Again, the respondent was visiting Dr Hedge during the same period. 37The arbitrator found that Dr Webb's decision on 7 October 2010 to take the respondent off Mobic stemmed from concern over the onset of migraines and that Dr Webb monitored the respondent's blood pressure and, "[o]nce Ms Strickland's blood pressure had normalised, he resumed prescribing the Mobic" (this is part of the Presidential member's summation of the arbitrator's findings). Also: "Ms Strickland's blood pressure was elevated, and that was the reason for the cessation of Mobic". 38Cessation of Mobic occurred on 7 October 2010. 39Dr Hedge's notes record blood pressure readings as follows: 12 February 2010 150/95 29 March 2010 160/95 31 March 2010 160/95 26 August 2010 150/125 11 October 2010 150/105 15 October 2010 150/110 2 December 2010 140/85

Reliance on Dr McKechnie's report 45As a separate ground of appeal, the appellant contends that the Presidential member erred in law in relying on Dr McKechnie's opinion evidence in concluding that Mobic caused the temporary increase in blood pressure to which reference has just been made. 46Dr McKechnie, a neurosurgeon, furnished two reports, one dated 7 March 2011 and the other dated 6 July 2011. The first was addressed to the appellant's insurer. The second was given in response to a request made by the respondent's solicitors by letter dated 30 March 2011. Enclosed with that letter were the clinical file of Dr Affleck, medical certificates provided by Dr Affleck and Dr Webb and Dr Hedge's certificate already mentioned. The letter made the following observations: "You will see from these dates [the dates in Dr Hedge's certificate], our client's complaints of headache and increased blood pressure correspond with commencement of her use of Mobic in August 2008 [sic; scil '2010'] and up until the medication was ceased following consultation in October 2010. Unfortunately it appears it was resumed on 28 October 2010 and this corresponds with our client suffering her aneurysm on 17 November 2010." 47In his first report, Dr McKechnie said, referring to the rupture of the aneurysm: "The only possible relationship to her Workers Compensation injury would be if the Mobic caused a significant and sudden rise in her blood pressure which precipitated rupture of the aneurysm. Raised blood pressure is a known side-effect of Mobic. I would suggest that you contact the patient's general practitioner to see if there is documented rise in blood pressure following commencement of Mobic. If this is documented, the patient may have a case for her condition to be covered under Workers Compensation. If this is not documented however there is no association between her Workers Compensation injury and the aneurysm and the subarachnoid haemorrhage." 48In the second report, Dr McKechnie said: "The only possible relationship to her Workers Compensation injury would be if the Mobic caused a significant and sudden rise in her blood pressure which precipitated rupture of the aneurysm. Raised blood pressure is a known side-effect of Mobic. This medication is also an anti-inflammatory which causes platelet dysfunction and a mildly increased bleeding tendency. According to the correspondence that you have sent me, there is supporting documentation of hypertension following commencement of Mobic. It would be therefore reasonable to say that the Mobic has been a contributory factory to the subarachnoid haemorrhage in November 2010. However it did not cause the aneurysm per se. Furthermore, the aneurysm at diagnosis was reasonably large, 1.5 cm, and statistically it would have been likely to rupture in the future regardless of Mobic use. It is impossible however is [sic] to say that this would have definitely occurred and when it would have occurred." 49At an earlier point in the second report, Dr McKechnie said: "Around July 2010 I understand that she had a work related injury to her left wrist. This was approved by New South Wales Workers Compensation. There was no improvement with physical treatment and simple analgesics and she was commenced on Mobic. I understand from correspondence that I have received that this occurred around August and she was subsequently commenced on Avapro due to hypertension. The Mobic was ceased and then recommenced in October. Several weeks later she suffered the subarachnoid haemorrhage. She was still taking this medication at the time of her subarachnoid haemorrhage." 50In this Court, the appellant sought to establish that Dr McKechnie's opinion was devoid of probative value and that the Presidential member therefore erred in law by taking it into account in reaching his decision. 51That submission must be evaluated against the particular statutory background concerning proceedings in the Commission. Section 354 of the Workplace Injury Management and Workers Compensation Act relevantly provides: "(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits. (3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." 52In State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [65], Basten JA said: "The precise scope of a provision such as s 354 will depend upon the circumstances in which its operation arises. No doubt the Commission is required to apply substantive rules of law applicable to its jurisdiction and to comply with rules of procedural fairness, although the content of the latter may be affected by the terms of the provision: see generally Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 at [42] (Gleeson CJ, Gummow and Hayne JJ); Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 (Gleeson CJ and Handley JA); Italiano v Carbone [2005] NSWCA 177 at [70]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [87]-[94] (McColl JA, Tobias and Giles JJA agreeing), and Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158 at [42]." 53Because the rules of evidence do not apply, medical opinions tendered in proceedings in the Commission do not fall to be assessed according to any direct application of provisions in Part 3.3 of the Evidence Act 1995 or the "the basis rule" by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence. In addition and as Bryson JA observed in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 at [25], assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that proceedings in the Commission were not conducted in a fair way. 54In Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [82], Basten JA said that nothing in the Workplace Injury Management and Workers Compensation Act or the law relating to procedural fairness (which undoubtedly applies) imports into the legally mandated procedures of the Commission limitations on the material that can be considered, derived from the rules of evidence. If the appellant is to succeed in its contention that the Presidential member erred in law by relying on Dr McKechnie's reports, it must show that such reliance entailed failure "to act according to equity, good conscience and the substantial merits of the case" as required by s 354(3). A failure of that kind might possibly be found if a central conclusion was based squarely on an expert opinion that was devoid of foundation and if, in addition, there was no other material before the tribunal capable of supporting the conclusion, so that, as a matter of law, the conclusion was simply unavailable: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [90]-[91]. 55The appellant's objection to Dr McKechnie's reports is bound up with its contention concerning Dr Hedge's notes. Dr McKechnie's opinion was based on the several documents sent to him under cover of the respondent's solicitors' letter of 30 March 2011 (see [46] above). These included Dr Hedge's certificate but not Dr Hedge's notes. The appellant says that the foundation on which Dr McKechnie's opinion was erected was unreliable because, in effect, the notes called into question the proposition central to Dr McKechnie's view that the respondent experienced increased hypertension after she started taking Mobic. 56That proposition has already been dealt with. For reasons stated at [42] above, Dr Hedge's notes supported the case on which the respondent succeeded, based on deleterious effects of Mobic on the pre-existing and acknowledged hypertensive state. Dr McKechnie's reports were consistent with that case and it cannot be postulated that the availability to him of Dr Hedge's notes would have altered his view. 57There is a second complaint about Dr McKechnie's report. It relates to the statement that the respondent "was subsequently commenced on Avapro due to hypertension", with "subsequently" referring back to the point at which Mobic had been prescribed. There was here, it is said, a misapprehension that the respondent had started taking Avapro for hypertension only after she had started taking Mobic for wrist pain; and that misapprehension must be taken to have contributed to the view that hypertension only began after treatment with Mobic commenced. 58That view of matters is, however, not open when regard is had to a letter from Dr McKechnie to Dr Hedge dated 7 March 2011 which refers to the respondent as a "50 year old lady with a background history of hypertension and smoking". Dr McKechnie was thus aware of a history of hypertension and it may be inferred that this, coupled with the information in Dr Hedge's certificate that the respondent had "attended surgery for severe headaches and hypertension follow up" on 26 August 2010, 11 October 2010, 12 October 2010 and 15 October 2010, enabled Dr McKechnie to conclude that the hypertensive state became more acute in the period after Mobic treatment began. In addition, the fact that there were three visits to Dr Hedge in the space of five days in October 2010 for "severe headaches and hypertension follow up" must have indicated to Dr McKechnie that the mid-October period marked a point of significantly increased hypertension in the lead-up to the rupture of the aneurysm that occurred about a month later.

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