"As I'm unqualified to diagnose myself, I assumed I had just twisted my knee and it would be fine. At the time, I was also experiencing issues with management and was uncertain about how they would respond, especially since I was a casual employee. I did not want to lose my Sunday shift (which paid double rates) and knew that reporting the injury as work-related would prompt a follow-up, jeopardizing my Sunday shift and the income I needed to pay my bills.

My understanding at the time of the injury was that I may have merely jarred or twisted my knee and that it would be fine the following day. This assumption was incorrect, and in hindsight, I wish I had informed my upper management about the injury. Had I done so, the text message would not have been sent, and I would have had a better understanding of the actual injury."

1. The applicant said she had pain, stiffness, weakness and swelling in the region of her right knee. The knee felt unstable and locked. The applicant could not fully extend it. The applicant was unable to run, kneel or squat and had difficulty on stairs and slopes.

1. The applicant relies on a statement made by Tyler Ross, dated 23 May 2025, who stated that he had supervised the applicant for various shifts during her employment for the respondent.
2. Mr Ross said that on 26 October 2020, he was supervising the applicant. The applicant was in good health and did not have any medical issues or injuries when she commenced working.
3. The applicant and Mr Ross were running the "freshcon" load together which involved the applicant bending down and lifting, squatting and putting her knee onto the floor and lifting grocery items of the pallet on to shelves.
4. After finishing one pallet and halfway into the next pallet, Mr Ross saw the applicant bend down to put an item onto a shelf and noticed that she had pain in her knee. They rolled up her pants to check her knee and it had swollen up so much that she could not continue to work. They applied ice to the applicant's knee while she rested in the breakroom. The applicant was sent home as she was unable to work.

1. The applicant has also obtained a statement from Mr Josh Buss, owner of ThinkFit gym, dated 22 May 2025.
2. Mr Buss said fitness sessions at his facility were conducted in small groups where each participant was supervised by a qualified and experienced trainer. The trainer was responsible for closely monitoring all attendees and ensuring proper form and safe execution of exercises.
3. Mr Buss stated that at no point during the applicant's time at his gym did she report any discomfort, pain or injuries. To the best of his knowledge, the applicant was free of injury throughout her attendance at ThinkFit's fitness programs.

1. A text message exchange with the applicant on 26 November 2021 at 9:54pm records that the applicant was asked if her knee was okay, the applicant responded:

"Hey! It's pretty fucked aye hahaha I have no idea what's happening, I'll go doctors tomorrow.

Couldn't even walk to the car, so I sat in the lunchroom until 9. Walked outside and sat on the bench until 9:30 Before one of the boys walked me to my car."

1. At 8:27am on 27 November 2021 the applicant was asked when her knee started hurting and if she hit it at work. The applicant responded:

I'll let you know on Sunday how I'm feeling, hopefully it's alright by then"

1. An Employer Injury Claim Form completed on 11 March 2022 by the respondent's store manager, Mr Evan Issa, stated that in November [2021] the applicant messaged her manager that she hurt her knee at the gym but made it worse working.
2. On 17 January 2022, the applicant reported that her knee was hurting due to an injury at work from repetitive movement.
3. Mr Issa said there were no witnesses on the day but the applicant let Tyler Ross know on the night.
4. The form said that the applicant had stated in a meeting that she went for a run then to the gym that day and that probably didn't help with the injury.

1. Clinical records from Our Medical Home Marsden Park include a consultation recorded by Dr Titus Thomas on 27 November 2021 which noted:

1. The applicant was referred for an X-ray and ultrasound scan of the right knee.
2. The report of an X-ray and ultrasound taken on 27 November 2021 noted moderate suprapatellar knee effusion.
3. On 15 December 2021, Dr Jack Naung San recorded a consultation as follows:

- explained the findings, with possible causes and provisional diagnosis

1. The applicant was referred for an MRI scan of the right knee with a history recorded as follows:

"25 year old lady with Right knee pain and swelling for over 3 weeks now, after twisting her Right knee - not able to recall exact mechanism. Now pain on weight bearing."

1. The report of an MRI of the right knee performed on 29 December 2021 found a medial meniscal tear with small intrameniscal and parameniscal cysts.
2. On 11 January 2022, the applicant discussed the MRI results with Dr Thomas. It was noted that the applicant required physiotherapy and may need an orthopaedic referral if the knee did not get better.
3. The applicant attended an initial consultation with physiotherapist, Jarryd Chippendale on

19 January 2022. Mr Chippendale took a history as follows:

"(R) Knee- Medial meniscal tear oblique/horizontal tear

MRI: Medial meniscal tear oblique/horizontal tear + medial meniscus is partially extruded into the medial gutter by 2 mm.

1. On 9 March 2022, the applicant attended an initial consultation with a general practitioner at SwiftDoc, Dr Sanet du Plessis. Dr Du Plessis recorded:

will await imaging report, and claim to be approved.

1. Dr Du Plessis issued a SIRA certificate of capacity in respect of a medial meniscal injury caused by:

"...loading milk cartons, repetitive twisting and turning whilst loading milk cartons."

1. Following a case conference with the applicant's store manager on 17 March 2022, Dr Du Plessis noted:

"Developed pain in her right knee after repetitive bending and twisting at work.

This happened several weeks ago. She has been attending physiotherapy with no relief.

Please find below the MRI results of Tiffany's right knee."

1. The applicant attended a consultation with general practitioner, Dr Pavithra Akmeemana at Health Connect Medical Centre Schofields, on 10 May 2023 reporting:

3 years ago she torn meniscus possibly following RSI at work

1. Dr Akmeemana prepared a referral to orthopaedic surgeon, Dr Daniel Biggs, for opinion and management. According to the referral, three years earlier the applicant damaged her right knee, "possibly following RSI at work". The applicant was also referred for a follow-up MRI scan.
2. The report of an MRI of the right knee performed on 5 March 2025 said that compared with the investigation performed on 29 December 2021, there was a slight interval progression in the inferior horizontal tear of the posterior horn of the medial meniscus associated with para-meniscal cysts.
3. An email from the practice of orthopaedic surgeon, Dr Jun Nagamori_,_ dated 1 April 2025 attached a fee estimate for a right knee arthroscopy and meniscus repair to be performed on 29 September 2025. According to the fee estimate, the surgeon's fees would total $3050 with additional fees payable for an assistant surgeon, hospital and anaesthetist.

1. The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr James Bodel, dated 16 January 2024.
2. Dr Bodel took a history of the injury that was consistent with the applicant's statement evidence:

"This lady suffered an injury at work on 26 November 2021. She was squatting down and she was rising from the kneeling and squatting position and she felt pain in the region of the right knee while doing so. This occurred at about 7:00 pm on 26 November 2021 about halfway through her shift. She could not complete the shift. She went home because of increasing pain and swelling and put up with the pain and put an ice pack on it."

1. Dr Bodel noted that the matter was formally reported on 17 January 2022. The applicant was given a certificate indicating no current work capacity until 9 March 2022. The applicant was seen by the company doctor and had physiotherapy. This helped a little but did not cure the symptoms. The applicant was referred to an orthopaedic surgeon.
2. Dr Bodel noted that the decision to dispute liability referred to an assertion that the applicant was injured at a gymnasium. The applicant denied that any event ever occurred at a gymnasium. Dr Bodel said the description of injury was consistent with the type of event that could cause a torn medial meniscus in the knee. Dr Bodel stated:

"The staff at the workplace make the following assertion that the "team member stated in one of the meetings that she went for a run then to the gym that day and that probably did not help with the injury. I believe the injury might have happened outside of work and work might have aggravated it. The team member plays sport and she went to the gym and run that day before her four hour shift". Your client denies that. She denies that there was any injury to the knee in those circumstance although she did indeed do those activities but did not injure the knee running or going to the gym."

1. Dr Bodel said he accepted the history provided to him. Dr Bodel said the squatting event rising from a squatting or kneeling position was more likely to cause an injury than running or going to the gymnasium. Dr Bodel noted:

"I also note that the MRI scan on 17 March 2022 shows an oblique horizontal cleavage tear of the medial meniscus in the posterior horn and the body which is consistent with a rising from a deep squatting position and not an injury at the gymnasium or a run."

1. Dr Bodel noted that an entry in the local doctor's notes on 27 November 2021, the day after the event said that the applicant had pain and swelling in the right knee for one week. The note referred to going to the gym, lifting weights and running a few times per week. A torn ACL at the left knee was also noted. Dr Bodel observed that the record did not confirm the history given to him of an injury while rising from a kneeling and squatting position at work.
2. Dr Bodel also observed that an entry on 15 December 2021 stated that the applicant was not able to recall the exact mechanism of the injury. Dr Bodel commented,

"It appears subsequently that she has recalled the event where she was rising from a kneeling and squatting position which caused the pain and I am satisfied that that is the most likely of all of the mechanisms proposed that would cause the type of horizontal cleavage tear to the posterior and posterior horn of the body of the meniscus in this circumstance."

1. Dr Bodel performed his own physical examination and expressed the opinion:

"This lady needs an arthroscopy. The history that she finally does give which is the kneeling at work and then rising from the kneeling position is the most likely mechanism to cause the meniscal tear that she has. Going for a run without any specific injury while running or going to the gymnasium without any specific injury while at the gymnasium is unlikely to cause that pathology.

I am reliant on the history that she gives and I do note that when she gave her history to her doctor there was no description of a mechanism of injury.

I am satisfied that if the history given of her rising from the kneeling and squatting position is indeed the way in which this injury occurred then that is the cause of the torn meniscus for which surgery is appropriate."

1. Dr Bodel expressed the view that arthroscopy to treat the torn medial meniscus was a reasonably necessary treatment. Dr Bodel said the medical evidence indicated to him that the injury probably did occur at work as described. Although the history was confused, the voluntary description of kneeling down then rising from a kneeling or squatting position to an erect position was the type of mechanism which could tear the medial meniscus particularly in a young person.

1. The respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Ron Haig, dated 25 March 2024.
2. Dr Haig took a history as follows:

"Tiffany-Amber told me that during one of her working shifts at Woolworths around

26 November 2021 she had been squatting down and as she "hopped up" she felt instant pain in the right knee. She states she noticed the knee was swollen. She discontinued work and went home and applied ice to the knee and retired to bed."

1. Dr Haig recorded that the applicant denied any earlier history of right knee complaints.
2. Dr Haig noted that the history given to him was at odds with the text message of

27 November 2021. 3. Dr Haig formed the opinion that it appeared the applicant had a tear of the medial meniscus of the right knee although he noted there were no radiological reports in the documentation provided to him. 4. Asked to comment on the inconsistent reporting of the injury, Dr Haig said it was clear from the documentation that the injury occurred at the gym. Dr Haig did not believe the applicant sustained an injury to her right knee as a result of her employment with the respondent. Dr Haig also said there was no reason to believe the applicant had sustained an aggravation to pre-existing non-work-related injury during her employment. 5. Asked whether the proposed surgery involving the medial meniscus was reasonably necessary as a result of injury, Dr Haig responded:

"While the request for proposed surgery involving the medial meniscus may be necessary this is not as a result of any injury sustained during her employment with the insured."

1. The applicant referred to her statement evidence regarding the nature of her work for the respondent and the event on 26 November 2021. The applicant was rising from a squatting position when she felt pain.
2. The applicant's evidence was supported by the detailed statement from her supervisor, Mr Ross. The applicant submitted that there was an obvious error with regard to the date of the incident in Mr Ross's statement. Mr Ross also referred to the applicant bending down and lifting items of the pallet on shelves. The applicant's knee was observed by Mr Ross to be swollen and she was unable to continue work.
3. The applicant submitted that her evidence was also supported by the letter from Mr Buss, who gave evidence that the applicant had participated in small-group training with a trainer who ensured proper form. No injury had been reported at the gym.
4. The applicant said this evidence was significant given the text message exchange in which she referred to being pretty sure she hurt her knee at the gym but made it worse while working.
5. The applicant had addressed the text message exchange in her statement evidence. The applicant had assumed that she had just twisted her knee and it would be fine. The applicant did not want to lose her valuable Sunday shift. In any event, the text message exchange made clear that there was some involvement from work in making the injury worse.
6. The applicant submitted that she had been able to start her shift and perform her work duties until the knee became swollen and stopped her from working. The applicant submitted that if she already had an injury she would not have gone to work at all.
7. The applicant noted that Dr Haig relied on the text exchange said there was no work relationship. Dr Haig did not consider the full wording of the text message in which the applicant said that work had made her injury worse. The applicant observed that Dr Haig agreed that an arthroscopy was required.
8. The applicant referred to the clinical record of the consultation with Dr Thomas on

27 November 2021. The applicant submitted that the reference to symptoms for one week was an error. Although the clinical record did not mention work, this was likely to be because the applicant did not want to lose her shifts and was anticipating that she would be able to get back to work quickly. 9. The consultation on 15 December 2021 referred to pain for three weeks which was consistent with an event occurring on 26 November 2021. 10. The applicant noted that she had been referred for radiological investigations including an MRI scan which noted a medial meniscal tear. 11. The applicant submitted that Dr Bodel took a history that was consistent with her statement evidence and the evidence from Mr Ross. Dr Bodel gave the opinion that squatting and kneeling was more likely to cause the particular type of injury at the applicant's knee than running or going to the gym. 12. The applicant submitted that the primary issue in the proceedings was whether the applicant was able to prove an injury on the balance of probabilities. The applicant's claim was supported by her statement evidence and the evidence of Mr Ross and Mr Buss as well as the expert opinion of Dr Bodel. 13. On the other hand, there was an indifferent history recorded in the general practitioner's notes and the text message exchange although the text message exchange still identified work as a reason for the applicant's pain. Dr Haig's opinion on causation was based on an incomplete understanding of the text message exchange.

1. The respondent noted that it was the applicant's case that there was no injury at the gym which had been aggravated by work. The applicant gave a history that she had suffered no injury until she engaged in squatting at work.
2. That history was difficult to reconcile with the contemporaneous medical and factual evidence.
3. The text message sent on the morning after the injury indicated that the applicant was pretty sure she injured the knee at the gym but it got worse at work. This could be contrasted with the applicant's evidence now that there was no injury at the gym but only an injury at work.
4. The clinical records on 27 November 2021, the day after the event, recorded pain and swelling for one week. There was no basis on which to assume that this account involved an error. One week was noted to be a significantly longer period of time than the night before. The clinical record identified various potential causes of the injury including running and lifting weights but made no reference to work as a possible cause.
5. The referral for the MRI performed on 29 December 2021 mentioned a twisting injury. The applicant's own evidence, however, was of squatting and rising not twisting. Even this account was not consistent with the applicant's explanation of the mechanism of injury.
6. The respondent observed that the initial physiotherapy consultation gave no description of an injury occurring at or related to work.
7. The first account of a work-related cause for the injury in the treating evidence appeared in March 2022, more than three months after the alleged incident occurred.
8. The respondent observed that the Employer Injury Claim Form suggested that on

17 January 2022, the applicant had reported an injury at work from repetitive movements. The claim form suggested that the applicant told Mr Ross about the injury that night but that there had been no witnesses during the day. The respondent submitted that this appeared to be inconsistent with Mr Ross's statement evidence. 9. The respondent observed that the applicant saw Dr Akmeemana about the injury for the first time in early 2023 and gave a history of injury three years earlier. This timeframe appeared to be inconsistent with an event on 26 November 2021. While the respondent acknowledged that there was no evidence suggesting an injury in 2020, this was said to be another unexplained inconsistency in the evidence. 10. Dr Bodel took a history of the applicant rising from a kneeling and squatting position when she felt an injury in the knee. The applicant denied any injury at the gym to Dr Bodel. Although Dr Bodel expressed the view that this mechanism was more likely to have caused the particular knee pathology than running or going to the gym, it was said to be common knowledge that people do squat at the gym at times. The respondent suggested that Dr Bodel's comments in this regard were not persuasive. 11. The respondent noted that the applicant gave a history to Dr Haig of popping up and feeling instant pain. Although there was no medical dispute regarding the nature of the pathology at the applicant's knee and the appropriate treatment for it, Dr Haig took the view that the injury occurred at the gym. Dr Haig was not satisfied that there was any aggravation of a pre-existing injury, presumably on the basis of the history given to him. 12. The respondent observed that Dr Bodel and Dr Haig were on the same page regarding treatment but Dr Haig did not agree that the need for treatment resulted from a work injury. 13. The respondent noted that the mechanism of injury was inconsistently described in the evidence. The applicant's statement evidence made reference to repetitive movements causing the injury. At other times the applicant suggested that she felt instant pain when rising from a squat. There was no mention of a twisting injury in the applicant's statement although one was recorded in the treating evidence. 14. The respondent submitted that the applicant's explanation of the text message exchange was not logical. The applicant's statement evidence that she assumed she had just twisted her knee and it would be fine was difficult to reconcile with the text message that the knee was "pretty fucked" and she had to go to the doctor. 15. The respondent submitted that it was also unclear why the applicant would be worried about losing her Sunday shift when Mr Ross' evidence was that he had seen the injury already. The respondent submitted that the applicant's statement evidence made no mention of Mr Ross being present when she injured her knee. 16. The respondent submitted that Mr Buss' evidence took the matter no further and did not say, for example, whether the applicant had been present at the gym on the day of the injury. 17. Mr Ross' evidence gave a date of injury in 2020. Although this might be a typographical error, in circumstances where the applicant relied on a frank incident and given the other inconsistencies in the evidence, the error was problematic. If Mr Ross was the applicant's supervisor and saw the injury, it was unclear why he did not report the injury. The claim form indicated that there were no witnesses to the injury. 18. The respondent submitted that in light of the inconsistencies, the Commission would prefer and accept the contemporaneous material. The applicant had not pleaded a case of an aggravation of a previous injury and it would be an error for the Commission to come to such a conclusion. The Commission would not find that the applicant sustained an injury to her right knee in the course of employment.

1. The applicant noted the respondent's reliance on the clinical records from Our Medical Home Marsden Park and noted that the case law warned decision-makers to be careful not to place too much reliance on general practitioner's notes.
2. An accurate description of the injury was provided in March 2022 and continued to be provided thereafter.
3. The applicant submitted that her statement evidence referred to wishing she had informed upper management of the injury. This indicated that it was the applicant's understanding the report of injury had to be made to a manager at a level above that of Mr Ross. The respondent was a large employer and would have had well defined policies and procedures in place for the reporting of an injury.

1. Section 9 of the 1987 Act provides that a worker who has received an 'injury' shall receive compensation from the worker's employer in accordance with the Act. The term 'injury' is defined in s 4 of the 1987 Act as follows:

(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,"

1. In order for compensation to be payable, the applicant must also satisfy s 9A of the 1987 Act, which provides:

"(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."

1. It is the applicant who bears the onus of establishing on the balance of probabilities that she sustained a personal injury to her right knee on 26 November 2021 that satisfies the requirements of ss 4(a) and 9A of the 1987 Act_._ In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[1] McDougall J stated at [44]:

"A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712."

1. The applicant's ability to discharge her onus is made difficult in the present case due to inconsistent accounts as to the circumstances in which the injury occurred.
2. The injury initially described in the Application to Resolve a Dispute was an injury occurring due to the nature and conditions of the applicant's employment. Consistently with that description, the Employer Injury Claim Form completed on 11 March 2022 stated that the applicant had reported on 17 January 2022 that her knee was hurting due to an injury at work from repetitive movement.
3. This description of injury was also provided to the 'company doctor', Dr Du Plessis on

9 March 2022, who recorded a history of "repetitive twisting and turning whilst loading milk cartons". In May 2023, Dr Akmeemana also took a history of an injury "possibly following RSI at work". 4. The Application to Resolve a Dispute was, however, amended at the conciliation conference and arbitration hearing to describe a personal injury occurring on 26 November 2021. 5. The amended description is more consistent with the applicant's written statement made on 30 July 2024, which described a particular incident on 26 November 2021, at around 7pm, when the applicant was "rising from a kneeling and squatting position" and felt pain at her right knee. 6. The amended description is also broadly consistent with what Mr Ross has described in his statement as well as the history provided to Dr Haig. 7. Dr Bodel also identified a particular incident on 26 November 2021 as the cause of the pathology at the applicant's knee. Dr Bodel stated that the event where the applicant was "rising from a kneeling and squatting position" caused the pain and was the most likely mechanism to have caused the type of horizontal cleavage tear to the meniscus seen at the applicant's right knee. 8. Neither a frank incident caused by rising from a kneeling and squatting position, nor an injury caused by repetitive twisting and turning while loading milk cartons, is described in the most contemporaneous accounts of the injury. 9. The first account of how the injury occurred is contained in the text message exchange on the morning of 27 November 2021 in which the applicant said she was pretty sure she hurt her knee at the gym but made it worse working. 10. The applicant saw a general practitioner at Our Medical Home Marsden Park the same day who recorded that the applicant had reported pain and swelling at the knee for one week, which had started off with popping and clicking. The same record referred to the applicant lifting weights at the gym and running a few times per week but made no mention of any work involvement. 11. The applicant returned and saw another doctor at the same practice on 15 December 2021, at which time it was noted that the applicant was not able to recall the exact mechanism of the injury. 12. The contemporaneous evidence thus suggests that the applicant had been experiencing symptoms of pain, swelling, popping and clicking for almost a week before

26 November 2021, which she had considered was potentially associated with lifting weights at the gym or running. 13. While the text message does suggest that the knee got worse at work on

26 November 2021, the contemporaneous evidence stands in contrast to the denial of any previous symptoms and the evidence of an acute onset of pain while rising from a kneeling and squatting position at work in the histories provided to Dr Bodel and Dr Haig and in the applicant's statement. 14. A work-related injury was not formally notified to the respondent for another month on

17 January 2022. The applicant has sought to explain the delay in reporting a work-related cause for the knee symptoms in her statement evidence. The applicant said she assumed she had just jarred or twisted her knee and it would be fine the following day. The applicant also said she was experiencing issues with management and did not want to jeopardise her Sunday shift and income, given she was a casual employee. 15. I am not satisfied, however, that this adequately explains the delay of almost two months in reporting a work-related injury. During that period the applicant underwent radiological investigations which revealed a meniscal tear. The knee remained symptomatic and did not get better. When the applicant did eventually formally report the injury, she did not describe a frank incident on 26 November 2021 involving rising from a kneeling and squatting position but an injury due to repetitive twisting. 16. The value of contemporaneous evidence has been repeatedly endorsed by the courts: Watson v Foxman[2] and Onassis v Vergottis.[3] In the latter case, Lord Pearce commented upon what is often recollected and said by witnesses after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:

"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

1. I accept that the contemporaneous clinical notes must be approached with caution, noting cases such as Mason v Demasi[4] and Davis v Council of the City of Wagga Wagga,[5] where it was observed:

"Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury."

1. It remains, however, the applicant's onus to demonstrate on the balance of probabilities that a work injury occurred. In Department of Education and Training v Ireland,[6] Keating J found:

"... the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland's failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland's case."

1. While the most contemporaneous evidence suggests that pre-existing symptoms at the applicant's knee may have become more intense or severe during the course of the shift on 26 November 2021, this has specifically been denied by the applicant in her statement and in the histories provided to Dr Bodel and Dr Haig. The injury relied on in these proceedings is an acute or personal injury involving a meniscal tear at about 7pm when the applicant rose from a kneeling and squatting position.
2. While Dr Bodel has suggested that the mechanism described to him was consistent with the particular pathology at the applicant's knee, I am not persuaded that the history he took was reliable. As noted by the respondent, rising from a squatting position, possibly while lifting weights, is a mechanism often seen at gyms. The differing accounts of how the knee injury occurred described above are, in my view, extremely difficult to reconcile.
3. Having carefully considered the totality of the evidence and submissions, I do not feel a sense of actual persuasion that the applicant sustained a personal injury in the course of or arising out of her employment on that date or that employment was a substantial contributing factor to the injury.
4. The applicant has failed to discharge her onus. As a result, there will be an award for the respondent.

[1] [2008] NSWCA 246.

[2] [1995] NSWCA 497; (1995) 49 NSWLR 315.

[4] [2009] NSWCA 227.

[5] [2004] NSWCA 34.

[6] [2008] NSWWCCPD 134.