JUDGMENT OF: His Honour Deputy President Judge JP McCusker, Her Honour Deputy President Judge HW Parsons, Deputy President R McCouaig

Appeal - Adequacy of reasons for decision - Findings made without basal evidential material - Inferences to be drawn from evidence - Treatment of evidence by learned Deputy President - Whether erroneous findings of fact by learned Deputy President constitute an error of law - Cases discussed and considered - Reasoning in error - Dissenting Judgment - Appeal allowed by majority - Matter remitted for retrial - S 86 Workers Rehabilitation and Compensation Act 1986.

Hoyts Pty Ltd v Burns [2003] HCA 61

Bates v Nelson (1973) 6 SASR 149

Gordon M Jenkins & Associates Pty Ltd and Another v Coleman [1989] FCA 245; (1989) 87 ALR 477

Cavanett v Chambers (1968) SASR 97

Australian Postal Corporation v Kember [2003] FCA 800

Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349

Devries & Another v Australian National Railways Commission & Another (1993) 177 CLR 472

Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989

Whisprun Pty Ltd v Dixon [2003] HCA 48

Begbie v Michell [2003] NSWCA 149

The Smiths Snackfood Company Ltd v Zienkiewicz [2002] SAWCT 48

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259

Baldwin & Francis Ltd v Patents Appeal Tribunal & Others (1959) AC 663 at 693

Jones v Dunkel & Another [1959] HCA 8; (1959) 101 CLR 298

Campbell v Burrows Engineering [2002] SASC 96; (2002) 82 SASR 75

Churchill v. Badenochs Transport Ltd and Devine (1971) 1 SASR 63

Australian and Overseas Telecommunications Corporation Ltd v McAuslan [1993] FCA 620; (1993) 47 FCR 492

George Taylor & Co v Clark (1914) 7 BWCC 871

Schmid v Comcare [2003] FCA 1057

Comcare v Moon [2003] FCA 569

NRMA Insurance Ltd v Tatt & Another (1989) 94 FLR 339

T v The Medical Board of South Australia (1992) 58 SASR 382

Watson v Anderson (1976) 13 SASR 329

Fletcher Construction Australia Ltd v Lines McFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Re Poyser and Mills' Arbitration [1964] 2 QB 467

WorkCover Corporation/Royal & Sun Alliance Workers Compensation (SA) Ltd (Adelaide Casino Pty Ltd) v Hunter [2003] SAWCT 63

Papps v Police [2000] SASC 183; (2000) 77 SASR 210

South Australia Police Department v Barber [2001] SAWCT 100

Papps v Police [1999] SASC 210

1 The worker appeals the decision of a learned Deputy President. That decision confirmed the exempt employer's rejection of the worker's claim to compensation on account of headaches or on account of a stroke. The learned Deputy President concluded there was no link between such conditions and employment (reasons for decision par 101).

2 The appellant's complaints on appeal are detailed in the written Outline of Submissions. That outline has been expanded upon in the oral submissions. In summary the complaints are:-

2. Inferences wrongly drawn on the one hand (par 3.2) and failure to draw inferences on the other (par 11).

3. Failure to adjudge the matter on the balance of probabilities (by inference from the express reasoning) (par 3.1).

3 To succeed the appellant must satisfy us the criticisms she makes of the reasons for decision are justified and this meant a reasonable possibility of her claims thereby being denied. But even then she must show this involves a question of law as distinct from mere error of fact (s 86(1)). The appellant concedes that the best she can hope for is for the appeal to be remitted for re-hearing (appeal tr 4).

4 The uncontroverted facts are relatively straightforward. The worker was engaged at the Lyell McEwin Hospital. She worked in various specialist units servicing dementia patients. A new coordinator of the dementia program was appointed over her. In the ensuing months conflict, both personal and in respect to the work, developed between the worker and this coordinator. It reached an intolerable degree. After this situation continued for some considerable time the worker became ill and her general practitioner certified her incapacitated by reason of workplace stress. The worker made a claim for compensation upon her employer on 16 December 1996.

5 Thereafter on 10 March 1997 the worker saw a psychiatrist, Dr W Blakemore. The worker's claim was rejected by determination dated 11 April 1997. In fact the learned Deputy President reversed this determination and allowed the claim (reasons for decision par 48). On 27 April 1997 the worker was engaged in painting skirting boards at her home. This has some significance later. On 1 May 1997 the worker attended a chiropractor, Mr Havinga. On 5 May 1997 the worker underwent a pre-employment medical check for a posting at the Royal Adelaide Hospital. This was to re-establish the worker in duties removed from the particular situation believed to be causing her stress, (viz the conflict with the coordinator). On 15 May 1997 the worker attended Mr Havinga's clinic for further treatment. On 19 May 1997 she suffered a stroke.

6 The worker made her second claim for compensation on 1 July 1999. In it she claimed the stroke and her consequent incapacity was caused by her employment. Her case was that she suffered the stroke as a result of the procedures carried out by Mr Havinga. She said her reason for going to Mr Havinga for treatment was to resolve a worked caused disability (i.e. headaches). The stroke therefore was caused by her employment. A third compensation claim was filed about 5 July 2001 alleging headaches caused by her employ.

7 Having allowed the worker's first claim the learned Deputy President then moved in his reasoning to the second and third claims. He stated the issues in the following terms (paras [55] - [56]):-

"55 ... It will be sufficient that she shows on the balance of probabilities that the stroke occurred as the result of the chiropractic treatment (there being no dispute that her disabilities are the cause of her undoubted total incapacity) and further that she sought that treatment to alleviate a work related condition.

56 Further, the headache condition is advanced as a cause of disability independent of the stroke and/or independent of the stress claims as postulated by the claim for `headaches and muscle tension' which although dated 16 December 1996 was actually lodged in July 2001."

8 The case was conducted on the basis that the success of the claim that the stroke was secondary to employment depended on the worker proving it was due to the chiropractic treatment and that her reason for undergoing the procedure was to treat work caused headaches. That was said to involve certain elements. One was the existence of headaches prior to the attendance on the chiropractor. The other was the reason for attending the chiropractor, i.e. to alleviate those headaches. Another issue was whether the chiropractic procedure contributed to the stroke, even in the limited sense of hastening it. Finally, whether the headaches, if they existed, were work related. The learned Deputy President resolved the claim without dealing as such with the third and fourth elements. He found against the worker on the first and second elements. The worker asserts in this analysis critical steps were either erroneously taken or missed altogether. We turn to each complaint by the appellant.

9 In support of her case at trial the worker called Dr AC Roberts. She said she had complained to him about headaches during the relevant period leading up to attending the chiropractor (AB Vol I 46, AB Vol II 227). The learned Deputy President dealt with Dr Roberts' evidence in the following terms (reasons for decision pars 59 - 67, 83 - 84):-

"59 Dr Roberts has been the worker's general practitioner for many years. He gave evidence. I summarise it thus:-

There is no note in his medical notes of a complaint of headaches. Had the headache been a presenting complaint or in a complex of presenting complaints he would have noted it. He has no note of any prescription of medication to relieve headaches. It's possible that the worker mentioned headaches and no note was taken. He always regarded the worker's condition as being `situational in origin'. Ie her stress was caused by the job situation and was best treated by removing her from that situation rather than by medication. Further, he has no recollection of either suggesting or approving chiropractic treatment. Chiropractic treatment is not a modality of treatment usually recommended by him. At most he may have simply been told that his patient was seeing a chiropractor and did not do anything to discourage it, because she was satisfied that was what she wanted to do. Dr Roberts felt he probably learned about the chiropractic treatment after she began treatment.

60 In evidence at tr 84 the applicant said that although Dr Roberts' notes state that 21 April 1997 was the last time she saw Dr Roberts before seeing Mr Havinga her diary has an entry indicating further visits on 24 April and 5 May. She said she complained of headaches. `That is the only reason I was going to him'.

61 After the evidence was closed the applicant's counsel applied to lead further evidence, which was a record of a payment from Medibank for consultations on those days.

62 I repeat there is no record in Dr Roberts' notes of such consultations. He was cross-examined closely about this and fairly conceded that it was possible though unlikely that he would have failed to record two consecutive consultations.

63 I cannot confidently draw any inferences from the documents other than they corroborate attendances on those dates. The consultation on 5 May was paid at the rate appropriate for a `long' consultation. The Medicare records are a long way short of throwing any light on the reason for the attendances.

64 The 5 May appointment was after the first appointment with Mr Havinga. That was the day that the applicant went for her pre-employment medical examination at RAH, for the transfer to Hampstead.

65 I am inclined to the view that the purpose of the 5 May 1997 consultation was more likely to have been related to her employment medical examination - rather than a consultation about headaches.

66 Dr Roberts was advised soon after 19 May that his patient had suffered a stroke.

67 Having seen and heard Dr Roberts it seems to me to be a quite unlikely scenario that if his patient had been consulting him continually for months for headaches, and then as a last resort went to a chiropractor, and shortly thereafter suffered a stroke, that Dr Roberts would assert that the worker did not present with headaches to him. It is hardly something a person of Dr Roberts' standing and experience would forget or be mistaken about.

83 Dr AC Roberts was a most impressive witness. He is a highly experienced general practitioner. His notes are brief and typical of a busy general practitioner. I am persuaded that by and large they are accurate. I am unable to explain in a satisfactory manner the possible omission of notes of consultations, especially on 5 May 1997.

84 I accept Dr Roberts when he denies any suggestion that he was instrumental in the worker seeking treatment from Dr Havinga for any condition for which he was treating the worker. Further I am satisfied that the worker did not complain of headaches to Dr Roberts at least in such a fashion as to give headaches any real significance." (The emphasis is ours.)

10 Mr Rossi, counsel for the appellant, contends that what the learned Deputy President has done is to use this absence of any written entry of headaches in Dr Roberts' clinical notes as positive evidence contradicting her evidence of headaches up to the time of the chiropractic treatment. That is the basis of the challenges to the findings in pars 83 and 84. He contends the Tribunal ought not to have put much reliance at all on the clinical notes. It is self evident they were not a reliable basis for the findings in the circumstances. The notes were of marginal help as probative evidence. For instance significance follows from the two occasions notes were not entered at all. The evidence of Dr Roberts, the notes aside, did not refute a history of headaches reported by the patient throughout the relevant period. In short there was simply no basal evidential material from this source that justified a finding of no headaches during the period between the worker ceasing work at Lyell McEwin Hospital in December 1996 and the stroke in May 1997.

11 Our examination commences with Dr Roberts' evidence and the question whether it was probative in the circumstances. That is leaving aside the undoubted propriety of the learned Deputy President choosing the evidence of Dr Roberts over a contradictory version by the worker on the basis of an assessment of credit: See Hoyts Pty Ltd v Burns [2003] HCA 61. However this is not a case of simply preferring versions. It involves conclusions on collateral matters which are then the basis for doubting the worker's version. The learned Deputy President rejected the worker's recall of events because he understood other evidence contradicted her version. The appellant's response is that this other evidence when correctly understood did not contradict her (pars 67, 84 of the reasons for decision).

12 Dr Roberts dealt with the clinical notes in his evidence (AB Vol II 304). The entry of 16 December 1996 states (AB Vol I 148):-

"Anxious, stressed, crying, couldn't cope, annoyed, insomnia. Dating from 9.12.96.

Things going wrong at work. From 4 July. Called in for (?) Disciplinary Action. Because her boss brought up 3 issues which were important to her:

Differences with supervisor. Transferred Depts on 2 Dec (unofficial). Her junior staff kept asking her `what happened'. Basically a clash with supervisor. Be kept off work & resolve issues.

Was going to take sick leave & annual leave but advised by Personnel to lodge WorkCover claim. Psychology. Amanda Pickering referral for assessment & treatment."

13 Besides that entry, all other entries in the clinical notes are terse to say the least and notably avoid any detail of signs or symptoms: (AB Vol I 150):-

"23.12.96 `Giving a statement. Claim being investigated. Angry and saying her piece - things have not been done correctly [305]

9.1.97 Getting better and doing things about the problem [306]

10.2.97 Talk with Lynne L and ? they will try to get work not at LMcE (Lyell McEwin Hospital) and not in health care [306, 307]

21.3.97 `Going to' (?) 4 week trial at Eastern [308]

14 Apart from the clinical notes and to the extent to which the notes may have triggered some independent recollection, Dr Roberts gave the following testimony in respect to the worker's general presentation (AB Vol II 307 - 308):-

"Q As part of that, was she a tense sort of person or a relaxed sort of person.

A No, I would say she was on the tense side of the norm.

A I haven't recorded it but in that scenario it wouldn't have surprised me that she had had headaches.

Q Do you have any independent recollection of her consultations with you.

A In a broad sense, yes, but to the detail of whether she was complaining of headaches or not, I can't remember that much.

Q Can you tell His Honour whether you have recorded in your notes everything that she said to you, or can't you tell us.

A Well, no, they are notes, they are a synopsis of - I suspect 16/12/96 represented a half an hour and I suspect that those other three would have represented at least quarter of an hour, 20 minutes, maybe more."

15 Dr Roberts returned to these matters in cross examination (AB Vol II 312 - 313, 314 - 315, 316 - 318, 321 - 322):-

"Q The vexed question of the headaches, if she had mentioned it to you as being a prominent problem, would you have made a note of it.

A If it was her presenting symptom, I'm as sure as I can be that I would have but it could have been in her symptom complex and I didn't mention it.

Q That's why I asked you the question, if it was a prominent presentation of headaches, you are confident you would have noted it.

Q If the others were prominent, and she just mentioned in passing, `I'm getting a headache' or something, it might be missed.

Q If she had complained to you - and I know this is a long time ago - but if she'd complained to you again of headaches being a prominent part, would you have made a note of that.

Q If we backtrack a few weeks to when you saw her on 16 December, if there had been a change in her condition for the worse, in the sense that some things might have been getting a little better, perhaps her insomnia or something, but headaches had got worse, would that be consistent with your note of, `Getting better' or would you have recorded such - - -

A I think if the headaches, things weren't getting better, the text of that line would be different.

A And if the anger and the tears and the anxiety were getting better but headaches were being a problem, I think that would be unusual enough for me to make a note of that.

Q Do we take it from that, that by about 21 March, just to make sure I understood your answer, that you thought she was physically well enough to cope with work as long as it wasn't back in where she'd been.

Q And that her condition had resolved to the extent that that was possible.

Q Whereas when you saw her on 16 December 1996 for example when she was quite upset and crying, that even if she'd gone to a different workplace the next day, she wasn't really going to be able to cope.

Q If she had complained to you from December 1996 through to 21 March 1997, of chronic headaches, would you have formed that view, that she was fit to go to work in a different position.

Q Realistically if someone comes to you over a period of nearly four months complaining of constant headaches, you may have considered referral to a specialist to get to the bottom of it.

A If the headaches had been a prominent symptom - I knew the ultimate cure was probably going to be a situational change, getting away from the cause of the tensions but if the headaches were a prominent symptom, I think I would have probably suggested tablets of some sort to ease headaches and/or prevent headaches.

A The first trial would be low key, like Panadol, which is not prescription, but anything stronger than that, digesic or Panadeine Forte and they are prescription tablets and I would almost certainly have noted it.

Q Would you have noted Panadol, if you had recommended Panadol.

A Possibly not. My whole emphasis was towards cure was situational change and do things about it and you'll get better whereas to start getting into the tablets and reinforcing illness and numerous x-rays and what not I think doesn't lead to cure.

Q Is what you are saying from that last answer that whatever symptoms she presented with, you were reasonably confident it was situational, a situation problem.

Q Such that the notes don't record and your evidence doesn't suggest that you were going to rush off and cause, even if she was presenting with headaches, cause a referral for their aetiology.

A No, I would try to resolve it on the causative level if I could.

Q Your notes indicate that she didn't attend until after her brain stem stroke, from after 21 march.

Q Once again I know this a relatively arbitrary question but if there had been this constant presentation of headaches over this three or four-month period and then she does turn up in April and May of 1997 complaining of headaches still, does that affect your answer as to the likelihood that you may have had the notes and not made a note in your cards, the fact that there was this chronicity of headaches.

A No, I think if there had been a chronicity of headaches I would as certainly as I can be certain I would have noted it and headaches for two months or three months, I'd be beginning to be a bit shaken in my thoughts that maybe a situational thing is going to cure this. I might have to investigate it just make sure that nothing else is going on.

Q No. But your recollection is nothing was presented to you in any of these consultations which indicated it was anything but situational.

A I thought the situational thing was the basis of the bottom line.

Q Just turning to the question of stress headaches, that's an important matter. Stress itself is a very elusive concept and am I correct in assuming that stress headaches manifest themselves in a variety of ways. I mean, in the course of your practice over many years, the way they manifest themselves for patient A might well be different to patient B.

Q Am I correct in assuming that stress headaches can sometimes manifest themselves in muscle tension.

Q And muscle tension around the neck, at the back of the neck.

Q And sometimes muscle tension into the top of the shoulder girdle.

16 That sets out the basal evidential material taken from Dr Roberts. We repeat a key part of the reasoning is the fact of there being no entry in the clinical notes of headache. This and the doctor's oral evidence is the body of evidence that is central to explain why the Tribunal was persuaded the worker did not suffer headaches in the relevant period, at least in such a fashion as to give the headaches any real significance. If it is not a justified finding on that evidence then the reasoning is in error.

17 The first task of the learned Deputy President would have been to make some qualitative assessment of the clinical notes. This could be split into two aspects. Firstly the accuracy of the notes. Secondly the extent or level of the information contained and what the actual entries demonstrate the doctor was concerned to record. That is to assess what help the notes are on the issue. There is a justified relevance of the fact that two attendances that occurred, namely on 24 April 1997 and 5 May 1997 were not recorded at all. One of those, the attendance on 5 May, was a long consultation (par 63 of the reasons for decision).

18 It is apparent that the notes are not concerned to record symptoms and signs save to a degree in the entry of 16 December 1996. There were no records of clinical examination and it is consistent with the note of 16 December 1996 that the worker may have mentioned headaches (AB Vol II 307). Moreover the doctor had taken the view that the matter was situational and would be resolved with the passage of time and by removal from the causative stimuli (i.e. the coordinator). Dr Roberts, in the circumstances, would appear to have taken the view that to detail signs and symptoms at each consultation was not important. The headaches may simply have been one feature in a symptom complex and if so, Dr Roberts admits, it may not have had sufficient significance to record it (AB Vol II 313).

19 The appellant refers to par 84 of the reasons for decision. She refers to the finding that the she did not complain of headaches to Dr Roberts at least in such a fashion as to give the headaches any real significance. She contends this conclusion by the learned Deputy President is not the doctor's evidence. If headaches had been in her symptom complex he may well not have noted it. When taken together with notes which are deficit and acknowledged to be so, see pars 60, 61, 62, 63, the conclusion does not sit with the evidence. The statement that the notes are by and large accurate gives inadequate description to the actual situation. It overlooks the unreliable and inaccurate aspects that are beyond denial. Moreover Dr Roberts' evidence cannot be seen in isolation. The learned Deputy President's conclusion leaves a significant body of other evidence indicating the opposite insufficiently accounted for or dealt with in the analysis (viz Lyell McEwin notes (AB Vol I 122), Mr Havinga's statement (AB Vol I 91) and evidence (AB Vol III 393), Mr Edge's evidence).

20 The reference in the reasons for decision to Dr Roberts prescribing medication is also referred to by the appellant. In this respect, Dr Roberts pointed out he did not want to deal with the matter by prescription drugs (AB Vol II 317). There is also the statement (par 65 of the reasons for decision) that the purpose of the 5 May consultation was likely to have been related to the worker's employment medical examination rather than a consultation about headaches. This is contradictory to the worker's testimony and there is little beyond speculation (AB Vol II 238) to reach such a conclusion.

21 There is, associated with this, the absence of any other reason for attending the doctor if not in regard to the work caused condition. There is nothing much to be gleaned from the fact that the doctor did not arrange her attendance on the chiropractor (AB Vol II 227, 321) though the evidence of Mr Edge to the contrary is not mentioned. There is evidence taken without objection that the worker had other connections with chiropractors (AB Vol II 321) and was an old patient of Mr Havinga. Lastly the learned Deputy President made reference to and emphasised the fact that Dr Roberts was a person of "standing and experience", "a highly experienced general practitioner", "his notes, ... brief and typical of a busy general practitioner". Clearly the learned Deputy President was impressed with Dr Roberts as a witness. But though we have examined the transcript we have been unable to find any material to support the statements as to Dr Roberts' standing, reputation and experience save from the comment drawn from the state of the notes.

22 These observations need to be considered in the context of the worker's evidence. The reasons of the learned Deputy President stated that both the worker and the chiropractor, Mr Havinga, were honest witnesses doing their best in 2003 to recall conservations that took place in early May 1997 (par [82] of the reasons for decision). The worker stated the headaches and tension in her neck were secondary to her stress from employment (appeal tr 46, 47). She said she had discussed the headaches with Dr Roberts who had described them as tension headaches. She had related to Dr Havinga a history of headaches when she attended on him at first, though she also related that in the few weeks prior to her first attendance she had done some touching up of skirting boards at her home (appeal tr 54, see also AB Vol III 524). In her oral evidence she reiterated the history of tension headaches leading to her attendance for chiropractic treatment (AB Vol II 227).

23 She was well tested in cross examination (AB Vol II 236). She repeated that when she first saw Dr Havinga on 1 May 1997 her principle concern was headaches and she insisted she told him so, (AB Vol II 236, 240). This was against the following background of testimony by her (AB Vol II 264, 265, 266):-

"Q Can I suggest that you did not complain to him [Dr Roberts] of headaches [on 16 December 1996].

Q You then saw Dr Roberts on five occasions, or attended his surgery, between 23 December 1996 through to 21 March 1997.

A The whole time I went to see Dr Roberts was headaches. That was the only reason I was going to him."

24 Apart from the worker, her husband gave evidence on the topic of headaches (see AB Vol I 54, AB Vol II 290, 291). This involved complaint of headaches to him in the relevant period. This was either true or false yet as noted there is no reference in the reasons to Mr Edge's evidence (appeal tr 5). Though note is required of his close relationship with the worker and the caution this must bring to the evaluation of his evidence, if Mr Edge's testimony was to be rejected, the learned Deputy President should have dealt with the rejection of it in his reasons. As we understood the submission (appeal tr 9) the omission of any reference to Mr Edge's testimony supplemented the overall indication of a wrong approach to the task of evaluating and analysing the evidence.

25 The appellant's submissions turn to the issue of the Lyell McEwin admission notes. This submission was put in the context of the statement of the learned Deputy President both at the hearing (AB Vol II 280) and in par 86 of the reasons for decision. In the latter he states:-

"86 In my view the worker's evidence that work stress related headaches precipitated her attendance upon the chiropractor is a reconstruction of events. It is understandable that she blames the chiropractor for the disaster that has befallen her - but I think the weight of evidence on why she consulted Mr Havinga, is against her. Her case on this point draws no comfort from Dr AC Roberts. In fact the contrary is true."

26 The appellant contended the Lyell McEwin medical record, if it proved anything, refuted any suggestion that the reason she gave for attending the chiropractor was a later reconstruction of events. Rather the medical record was a significant piece of contemporaneous evidence of her then state of understanding. That was that the attendances were to treat her headaches (appeal tr 6, AB Vol I 122, 124, 126, 128). This was dealt with by the learned Deputy President as follows in his reasons for decision:-

"87 As to the Lyell McEwin records - they are business records with the evidentiary advantage that confers.

88 Senior Counsel submits that they are at best the record of what some medical practitioner was told. In any event, common sense dictates that the medical/nursing staff on 19 May and thereafter were concerned with treating a patient critically ill from the stroke, not with obtaining a medico-legal history. Those notes will not bear the construction that Mr Hanus seeks to put upon them."

The Lyell McEwin notes were admissible pursuant to s 45A of the Evidence Act besides being capable of admission under s 84 of the Workers Rehabilitation and Compensation Act 1986. No medical opinion was thereby admitted, but the fact of the statement was: see Bates v Nelson (1973) 6 SASR 149 per Bray CJ.

27 The first entry made in the Lyell McEwin medical records and referred to reads as follows (AB Vol I 126):-

This note and other records in the hospital file record a history of five weeks of headaches preceding the attendance on the chiropractor (AB Vol I 122, 124). These entries do deal with any suggestion that the worker had in later times reconstructed events about suffering headaches at that time. The notes are also supportive of the fact that as at 19 May 1997 the worker understood she was attending the chiropractor for treatment of headaches. Admittedly care must be taken in weighing the medical records of the Lyell McEwin Hospital. But it is a fact that the medical staff would have been concerned to take her history down accurately, such proper recording being central to the correct treatment of a person admitted to casualty. We would not agree with the generalisation as to casualty department notes made by the learned Deputy President (see AB Vol II, 280, 281). Moreover it is unclear what is meant by the "construction" the learned Deputy President understood Mr Hanus, counsel for the worker at the hearing, was asking the Tribunal to give to the hospital notes and which "those notes will not bear": (Appellant's Outline of Submissions par 21, appeal tr 22).

28 We now deal with the last two aspects of the reasons for decision the appellant raised in this appeal. This is the treatment of the evidence of Dr Blakemore and Mr Havinga. Dr Blakemore was not called and the totality of his evidence is contained in medical reports (AB Vol I 96, 101). We presume the first report (AB Vol I 96) was a result of the letter from the Lyell McEwin Hospital dated 27 February 1997 (AB Vol I 207). That was commented on by the learned Deputy President (pars 19 - 21 of the reasons for decision) and it is curious the record of interview of the worker herself was not before the Tribunal. However at this point of time nothing can be drawn by us from that situation. We merely endorse what the learned Deputy President said is the regret of this circumstance.

29 In respect to Dr Blakemore the learned Deputy President concluded:-

"68 Dr WB Blakemore was asked to report (at TB 86) whether the worker had complained of headaches to him.

`I could find no mention in my notes of Mrs Edge's complaint at any stage of headaches developing over the emotional stress she was experiencing.

There is no mention in my notes or report that Mrs Edge was seeking or attempting to seek chiropractic treatment when I saw her, or in previous years prior to the problem she had had with the Lyell McEwin Health Service.

When I asked her particularly about the treatment she was then (on 10th March 1997) receiving, headaches and chiropractic treatment for headaches for any other reason, were not mentioned.'

85 I am satisfied that the worker did not complain to Dr Blakemore that headaches were part of her symptom complex. Dr Blakemore is a senior and very experienced psychiatrist frequently involved in medico-legal disputes. In my experience he is astute to accurately record his patients' complaints. In fact in this case Dr Blakemore provides the strongest medical support for the worker's stress claim. I am satisfied she did not complain of headaches to Dr Blakemore."

30 The comments on the personal dependability of Dr Blakemore, the fact he is a senior and very experienced psychiatrist, astute and accurate in his recording of patients complaints is objected to by the appellant. We think that challenge, as with that in regard to Dr Roberts, is totally valid. We understood Mr Lovell QC, counsel for the respondent, and quite appropriately, not to quarrel with this submission although he did not concede there was any consequent significance to the outcome of the appeal (appeal tr 65): See Gordon M Jenkins & Associates Pty Ltd and Another v Coleman [1989] FCA 245; (1989) 87 ALR 477 at 485; Cavanett v Chambers (1968) SASR 97; Australian Postal Corporation v Kember [2003] FCA 800 at par 25.

31 Dr Blakemore's comment that there was no mention in his notes of headaches is exactly that (AB Vol I 101). It is also the case that in obtaining the history the doctor described the worker as very emotional, detailed, wordy, circumlocutory and "in this one interview, it was just not possible to establish with any detailed clarity the chronology of the development of any of her symptoms, nor establish a precise chronology of all the events taking place and contributing to them" (see also comments on mental state (AB Vol I 98)). On the other hand there is no suggestion at that interview of some overlay suggesting unreliability. Nor can much be placed on the fact of the appellant's failure to allude to chiropractic treatment "when I saw her or in previous years prior to the problem". The other evidence makes plain she did attend chiropractors later (AB Vol I 92, 141) and one would not expect chiropractic treatment in the context of headaches to be mentioned at that time.

32 In his reasons for decision the learned Deputy President dealt with Mr Havinga's evidence as follows:-

"70 Mr K Havinga a chiropractor gave evidence. His notes were tendered.

71 In summary he said the worker consulted him for an upper neck strain on 1 May. The worker told him that she had had problems with her employer and that she had been treated badly. However his treatment was directed to relieving symptoms in the neck arising from her painting skirting boards on the previous weekend.

72 The relevant evidence is found at tr 162 - 163 and tr 165 to 167 and tr 171.

73 The most this witness conceded, was that stress can produce tension headaches, and that as the relevant conversations occurred six years ago in 1997, and his notes were brief, he had to rely on his recollection and that he really did not recall any conversation about headaches.

82 The worker and Mr Havinga both impressed me as being honest witnesses doing their best in 2003 to recall conversations in early May 1997.

90 Mr Havinga's evidence as to the presenting complaint ie that its genesis was an incident painting skirting boards at home, is consistent with his notes. His notes are brief. He has to rely on what he concedes to be an imperfect recollection going back six years. I have no reason to believe that he gave anything but an honest account of the patient's complaints - within the limitations imposed by time and the notes.

91 Applying the `motive' test I can see no reason why Mr Havinga would be careless with the truth in these proceedings. He has retired from practice. The propriety and competence of his treatment is not in question in this Tribunal.

92 Hence I am not persuaded the chiropractic treatment was sought by the applicant for a disability that arose from the employment." (The emphasis is ours.)

If there was evidence upon which to base a conclusion that the worker did not attend Mr Havinga for a work related condition that would in itself decide this case. That was a point stressed by the respondent before us (see Respondent's Outline of Submissions - "Law" par 4, "The Evidence" par 1).

33 The statement of Mr Havinga made on 8 January 2003 formed part of the material before the learned Deputy President. He stated (AB Vol I 92):-

"On Thursday 1 May 1997 Mrs Edge again consulted me. At the beginning of this visit I had a short conversation with her. Mrs Edge advised me that she was suffering headaches and was receiving treatment for these headaches at the Lyell McEwin Hospital. She did not seek treatment from me in relation to the headaches. Mrs Edge had informed me that she worked at the Lyell McEwin Hospital but I was not sure of her position. I do remember her saying that she was not particularly happy with the treatment and medication she was receiving at the Lyell McEwin Hospital. Mrs Edge advised me she was suffering from pain in the left shoulder area. She said she had been down on her hands and knees painting skirting boards on the preceding Sunday 18, 27 April 1997, and had been experiencing pain in those areas ever since."

34 That statement then goes on to detail the procedures undertaken and what they sought to achieve. The statement notes on the second visit, on 8 May 1997, the worker said she was still suffering from headaches. The procedures on that and the occasion of 15 May 1997 are described. The chiropractor's case notes both in their original state and as transcribed were tendered (AB Vol I 142 - 143). Again these notes required the learned Deputy President to make an evaluative and critical examination of them in the context of the other evidence, viz the hospital notes. The notes read as follows (AB Vol I 143):-

Left cervical syndrome since last Sunday painting skirting boards.

CBT (cervical break technique) NA (not audible) Ice (to apply ice) Mond (I advised her to return on Monday)

B (improved) CBT (Cervical break technique) NA (not audible) lb (laser beam) Occip area (occiptal area)

No other (no other treatment) 1 week (to see in 1 week)

35 The degree to which Mr Havinga was able to recall aspects of the history given at the consultations was detailed in his evidence at AB Vol III 393 - 394. He stated:-

"Q She came to you and she told you firstly that she was suffering headaches. That's correct, isn't it.

A That came up in the conversation before she told me what she came for.

Q She also informed you that she was being treated for those headaches at Lyell McEwin.

Q Thirdly, she informed you that the treatment was unsatisfactory.

Q So you had a woman presenting with a complaint, with a number of complaints but certainly with one complaint for which she was receiving unsatisfactory treatment but she didn't want you to treat it.

A That she did not want me to treat those conditions of headache."

This was commented on by the respondent's counsel at the trial (AB Vol III 412) where he submitted the witness's recall as clearly "imperfect".

36 With reference to this material the appellant contends the analysis of Mr Havinga's evidence and notes by the learned Deputy President has failed. Firstly she contends the negative view formed of the appellant's reliability or accuracy by the learned Deputy President carried over from his erroneous treatment of the evidence of Dr Roberts. As a consequence it affected his assessment of her reliability. She says his view of her was already beyond resurrection by the time the learned Deputy President made comparison of her version of events with Mr Havinga's. The appellant also contends the question the learned Deputy President should have been concerned with was the worker's subjective reason for the chiropractic treatment, not what Mr Havinga (wrongly) understood was her reason for seeking chiropractic treatment. This is somewhat unconvincing in isolation as her mental state at the time is generally only known by what she says.

37 However on the other hand there is good reason to conclude Mr Havinga must have got parts of the history taken from her on 1 May 1997 wrong. He understood that she was suffering headaches but that she was obtaining treatment for that condition from the Lyell McEwin Hospital. That was the part of the understanding that informed him he was not called upon to treat the headaches. In fact the Lyell McEwin Hospital was not providing such treatment. This strongly suggests Mr Havinga's understanding was muddled (Appellant's Outline of Submissions par 25). It also suggests the worker was seeking chiropractic treatment for the headaches. Otherwise why were the headaches mentioned by the worker at the subsequent attendances. The appellant complains these aspects were not addressed by the learned Deputy President. Nor is the uncertainty of recall admitted by Mr Havinga, which has to be contrasted with the evidence of the appellant which was quite firm on the topic (ABVol I 44, 46, AB Vol II 227, 233, 240).

38 Mr Havinga gives important evidence in this respect, (AB Vol II 344 - 345), in the following passage:-

"Q You say that she told you that she was suffering from headaches. Do you have a memory of that.

A I'd like to explain it this way, if I may. When Mrs Edge came in to my rooms, I asked her to come in, told her to sit down and, because I hadn't seen her for two or three years I think it was, I just generally asked, `How have you been going?' and things of that nature, which stimulated a little bit of conversation on her part and in which conversation she mentioned a number of things which I do not exactly recall in what way they were mentioned or what was mentioned but I seem to remember that there was something about headaches, something about the Lyell McEwin Hospital, something about doctors there and so forth. I cannot recall the exact conversation. It is seven years ago that this happened, but this is roughly what I remember from that particular conversation.

Q Because there's nothing in your notes about it, is there.

Q And this was a recollection that you had at the time of the preparation of this statement in January of this year (2003).

39 In defending the reasons for decision Mr Lovell QC argued the matter has to be considered on the basis of the case the worker put to the Tribunal. Her case was she attended Dr Roberts for treatment of the headaches, "only" (AB Vol II 264, 265, 266). That much was not supported by Dr Roberts though if her case had been headaches of a non prominent kind in the "presentation complex" the issue might have been quite different (appeal tr 37). Mr Lovell QC submitted that the other key issue was the reason she attended Mr Havinga. Mr Havinga said she did not attend for treatment of headaches (appeal tr 39). She said it was her only reason for attending (AB Vol II 236) and that she had no neck pain. This was the key issue resolved in the respondent's favour by preference for Mr Havinga's recall. It was no longer subject to being revisited. Also it was submitted she had ceased work, the source of her stress, in December 1996. This fact and her assertion she was attending Dr Roberts for treatment of headaches "only" given his evidence as well as her statement to Dr Blakemore, made the fact finding outcome hardly surprising. All this had to place her reliability under considerable doubt. Finally Mr Lovell QC submitted that even assuming she did have a headache prior to seeing the chiropractor at best the evidence allowed a history of headaches for no more than five weeks (i.e. the Lyell McEwin Hospital records). How could this be linked to the employment?

40 As to the Lyell McEwin notes, Mr Lovell QC argued there were important and unsatisfactory features of them as evidence of headaches or as material in support of the appellant's case. Firstly there is no basis to equate a note of "head/neck pain" with headaches (appeal tr 46). Further the notes are inconsistent, some referring to five weeks of symptoms (AB Vol I 126) and others to five days of symptoms (AB Vol I 127) and some mention the neck only (AB Vol I 128). Whatever the case each describes a short period of onset rather than a picture of chronic headaches since 1995, i.e. unresolved headaches connected to her employ (appeal tr 47). Mr Lovell QC contended the learned Deputy President was not bound to accept their contents and could have rejected them due to the internal contradictions they contained. All this was enough to defeat the case as framed by her (Respondent's Outline of Submissions par 13(a)).

41 We repeat in summary form the points of controversy in the learned Deputy President's reasons for decision relied upon by the appellant:-

1. The attendance on Dr Roberts on 5 May 1997 was for an employment medical examination (par 65).

2. The evidence of Dr Roberts refuted the experience of chronic headaches between December 1996 and May 1997 (par 67).

3. In evaluating Dr Roberts as a reliable witness one took into account his particular professional standing and extensive experience (pars 67, 83).

4. There was no basis to doubt the essential accuracy and usefulness of the medical notes of Dr Roberts (pars 83, 84).

5. The Lyell McEwin Hospital notes were not to be regarded as reliable and were of no probative value (pars 87, 88).

6. The worker's version of headaches and her reason for seeing Mr Havinga were due to a reconstruction by her of events (par 86).

7. Dr Roberts' evidence contradicts the worker's reason for seeing Mr Havinga (par 86).

8. Dr Blakemore's failure to record any history of headaches was evidence contradicting the worker (par 85).

9. Dr Blakemore had personal attributes and professionalism which could be relied on by the Tribunal (par 85).

10. Mr Havinga's evidence was to be preferred regarding the worker's reason for receiving chiropractic treatment (pars 73, 90, 92).

42 In approaching this matter the Tribunal must apply the principle of restraint often reiterated in the authorities: see Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at 351; Devries & Another v Australian National Railways Commission & Another (1993) 177 CLR 472 at 479, 482; Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989 at pars 28, 29, 65. This must be seen in the light of two further principles. The first is, it is well established the trial judge does not have to refer to every piece of evidence given on a particular issue: see Whisprun Pty Ltd v Dixon [2003] HCA 48 at par 62; Begbie v Michell [2003] NSWCA 149 at par 34. Secondly, it is not the role of the appellate tribunal to make adverse presumptions in respect to the reasoning of the trial judge. Rather the reverse is the case: see The Smiths Snackfood Company Ltd v Zienkiewicz [2002] SAWCT 48 at pars 4 - 6; Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259 at 291 - 293: (but see also Baldwin & Francis Ltd v Patents Appeal Tribunal & Others (1959) AC 663 at 693 as to the significance we should give to the stated reasons for decision.)

43 In this case the learned Deputy President had to form a conclusion as to the worker's reliability. The continuing symptoms she complained of were entirely subjective. If the learned Deputy President had found her evidence in respect to continuous headaches and her reason for seeing the chiropractor as truthful and accurate then he could not have concluded as he did. If her evidence in this regard standing alone was found to be untruthful or unreliable, that resolved the issue. What he found was that she had told the truth as best she could but was a poor historian because other findings he made were at odds with her recall.

44 The finding that the attendance on Dr Roberts on 5 May 1997 was for an employment medical examination (and inferentially not for the headaches) (par 65 of the reasons for decision) was not open to the Tribunal. There was no evidence beyond speculation that it was for an employment medical examination purpose: Jones v Dunkel & Another [1959] HCA 8; (1959) 101 CLR 298 at 305 per Dixon CJ. However it is difficult to see standing alone that this mistake was important in the process of analysis that the appellant is challenging.

45 We refer to the effect of Dr Roberts' evidence. Firstly the analysis required consideration of that evidence in the context of its natural impact or tendency upon the appellant's version. In particular did it caste doubt over the evidence of the appellant that she had consulted him only for headaches and that headaches were the prominent symptom. We think it was sufficient to do that. But it was a misinterpretation or misunderstanding of what Dr Roberts was saying that the appellant never mentioned headaches as part of a complex of troubles during that period. Nor could that material lead to an inference that she had not complained of headaches. Further to the degree the respondent suggests the correct approach at law is to take her statement about the headaches at strict face value and that if she succeeded to the extent of establishing headaches as part of a complex of troubles only, she must fail, "because that is how she framed her case", it is wrong. That, with respect, is too simplistic an appreciation of the task of fact finding. Therefore to the degree the learned Deputy President concluded upon the basis of Dr Roberts' evidence there were no headaches in the relevant period there was error. Dr Roberts' evidence did not justify that conclusion.

46 We reiterate what Dr Roberts testified to was that it would be surprising in his belief for there to have been no notation of headaches had it been a prominent or presenting symptom throughout that period. The doctor, on the other hand, agreed headaches were not a surprising feature in the circumstances she presented. The doctor also thought it was unlikely he would have failed to record two consecutive consultations. This he clearly did. It was an important matter which demonstrated his fallibility (par 62 of the reasons for decision). It made it difficult to categorise his notes as "by and large accurate". Moreover there was a basis to treat the medical notes with circumspection. The notes speak for themselves as to their detail, or lack thereof and their purpose. When taken with the doctor's oral testimony it is evident the doctor's focus was not on specific symptom presentation but on a resolution of the problem, to be achieved by "situational change".

47 The learned Deputy President, while accepting the worker's honesty, came to the conclusion that she was mistaken by reason of her reconstruction of events. He reasoned that is why she now believes she suffered headaches from December 1996 to May 1997 when in fact she did not. Further she had reconstructed the occurrence of these headaches and that they caused her to seek treatment from Mr Havinga when in fact she was seeing him for other reasons unconnected with headaches. As an analysis this faces a number of difficulties. It is at odds with Mr Havinga's own recollection to the extent to which he has any reliability. Complaint of headaches were related to and recalled by Mr Havinga.

48 The importance of the Lyell McEwin notes in the context of the reconstruction conclusion appears to have been misunderstood. We refer to Campbell v Burrows Engineering [2002] SASC 96; (2002) 82 SASR 75 as instructive of the significance of the notes in the circumstances. That case concerned an issue of admissibility and the rejection by the Trial Judge of a written report prepared at the time of injury on the grounds of hearsay. However the Court's remarks do illuminate the point. In allowing the appeal the Full Supreme Court stated:-

"28 The Burrows statement was also admissible to refute the allegation of recent invention. That suggestion was made by counsel for Burrows Engineering, adopted by counsel for Lucon and appears to have been accepted by the trial judge. The statement was secondary evidence of what had been written on and later removed from the whiteboard. It led to the clear inference that a report at least in those terms had been made to Mr West at the end of the shift.

29 As was said by Dixon CJ Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476 at 479:

`If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.' "

49 On the other hand as Mr Lovell QC points out the Lyell McEwin notes, while having their own inconsistent features, do no more than record a history of headaches for a period before seeing Mr Havinga, not the whole period from December 1996 through to May 1997. Be that as it may the problem is that the learned Deputy President attributed no probative value to the Lyell McEwin notes. Thus the analysis was erroneous. We do not know what affect a correct understanding would have had on his evaluation of her evidence.

50 There is also the failure to address the fact that the worker was not attending the Lyell McEwin Hospital for the treatment of the headaches as understood by Mr Havinga. This was manifest and had to be dealt with in the analysis. We do not know how the learned Deputy President rationalised this. Again it is not a circumstance of two incompatible bodies of evidence where the learned Deputy President's task was to prefer one version to the other. The absence of reference to it and what consequence resulted is a matter of error.

51 Lastly there is the matter of Dr Blakemore's failure to record a history of headaches. As with Dr Roberts' evidence it did not prove the contrary. Moreover, as submitted by the appellant, the circumstances seem to have been analysed and resolved in the learned Deputy President's mind by a reference to personal attributes of Dr Blakemore which were matters not before the Tribunal. The same was the case, though to a lesser degree, in the references to Dr Roberts. If so, matters not before him were used to inform the learned Deputy President as to how to reach his conclusion. This is clearly in error.

52 To approach the matter of each error singularly rather than to regard the accumulative effect of the errors, would be to ignore how impressions and conclusions are formed as to a witness's truthfulness and reliability. Often, probably most often, it is the accumulative effect of a number of perceived incongruities and perceived contradictions that provides the outcome. That is what appears to have happened here. For a number of stated but erroneous grounds the learned Deputy President has formed the view the appellant's reliability was doubtful. We reiterate the learned Deputy President took the approach of using certain conclusions he formed regarding associated facts to doubt the appellant's testimony. If those conclusions were erroneous then it affects the doubt of her based on them.

53 Leaving aside whether what is involved is a question of law, we refer to the remarks of Bray CJ in Churchill v. Badenochs Transport Ltd and Devine (1971) 1 SASR 63 at 64, 65 - 66 in the following terms:-

"But it may be clear that the trial court has misapprehended the evidence or that its reasoning contains a non sequitur. If this relates merely to a peripheral or incidental matter which could have had no effect on the final result, once again it may be ignored. If it relates to a matter vital to the conclusion reached, then that conclusion cannot stand. What, however, if the mistake played some part in the reasoning leading to the conclusion but, nevertheless, the same conclusion might well have been reached without it? ...

I think that in a case like this we have to interfere once we are satisfied that there are errors of fact or reasoning in the reasons for judgment of the learned Special Magistrate which could have affected the result, unless we think that substantial justice has nevertheless been done. We cannot, in my view, be so convinced. The learned Special Magistrate was at pains to point out that he made no criticism of the only two witnesses who gave evidence before him, the appellant and the respondent Devine, and that he thought that each of them was doing his best to give a true account of the accident to the best of his recollection. It is not a case, therefore, to which cases like Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 and Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212 are applicable. Rather it is a case where the learned Special Magistrate has failed to use accurately the advantage he derived from seeing and hearing the witnesses (see Paterson's Case at p 222, in a passage cited by Dixon CJ and Kitto J from the judgment of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at p 47." (The emphasis is ours.)

54 In the same decision Sangster AJ (at 67) stated what he regarded as the due approach:-

"In the result, in my opinion, in the present case the learned Special Magistrate has made errors of substance in his reasoning, at least four of which errors bear - or at least appear to bear - directly upon his acceptance in substance of the version of the accident given by the respondent Devine and his corresponding rejection of the version (so far as it conflicted) given by the appellant."

55 In Australian and Overseas Telecommunications Corporation Ltd v McAuslan [1993] FCA 620; (1993) 47 FCR 492 having reviewed the authorities Miles J stated the correct approach as follows (par 82):-

"The rule, although enunciated in (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145-6) in strong terms, is not absolute. With respect, I do not take the High Court to be saying that, where there is a denial of opportunity of making submissions on a question of fact, a new trial must be ordered unless there is no possibility that a new trial would make any difference. That would be to impose an unrealistically heavy burden on a respondent, as it is difficult to imagine circumstances in which all possibility of a different result must be excluded. The concept is surely one of reasonable possibility. That is to say, unless the respondent shows that there is no reasonable possibility that a new trial would bring about a different result, the denial of natural justice must result in a new trial. I am of the view that there was no reasonable possibility that exclusion of DSM-III-R from consideration by the trial judge in the present case would have made any difference to the result. I am of the view that it would make no difference if a new trial were ordered and the matter remitted to Higgins J. If a new trial were ordered and the matter remitted to a judge other than Higgins J, the respondent would be denied the advantage of findings as to her own credibility and other findings in her favour which have already been made by Higgins J quite properly and quite independently of his rejection of the evidence of Dr Roberts. Those findings would be disregarded at a new trial and the whole issue of damages would have to be relitigated. Principles of fairness generally, and the public interest in finality of litigation, in my view, stand firmly in the way of ordering a new trial in this case."

Whichever approach, we are of the view the appellant has succeeded in satisfying the test.

56 As indicated at the outset, the conclusion that the learned Deputy President's reasoning was in error is not enough: see George Taylor & Co v Clark (1914) 7 BWCC 871. This appeal is restricted to questions of law. What is the nature of the errors identified in this case? In Schmid v Comcare [2003] FCA 1057, Weinberg J dealt with this topic in the context of s 44 of the Administrative Appeals Tribunal Act 1975 (Commonwealth) where, as here, the appeal is limited to questions of law. He stated:-

"53 Recent authority suggests that there is a high threshold for treating a finding of fact as giving rise to an error of law. In Roads Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508 at 520 Batt J said:-

`... a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will be open to challenge as being erroneous in law if it was not reasonably open on the facts.'

54 Critically, want of logic in drawing an inference is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if it appears to have been drawn as a result of illogical reasoning, no error of law will be established: see Australian Broadcasting Trinbunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ at 355 - 356.

72 The fact that these grounds of appeal are formulated as `no evidence' grounds does not assist the applicant. There is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 per Brennan J and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629 per Gleeson CJ and McHugh J. The high threshold which must be met in order to establish an error of law on such a basis is not even remotely approached in this case. Whether or not one agrees with the Tribunal's findings on these matters, it is impossible to say that they were not open to the Tribunal to make. The Tribunal had the advantage of seeing and hearing the witnesses give evidence. It was entitled to accept or reject such parts of their evidence as it thought fit. It explained its reasons for disbelieving the applicant. It also explained why it did not believe Mr Dyson, and why it preferred the evidence of Dr Murphy to the evidence of the applicant's doctors. It is not for this Court, in these circumstances, to substitute its view of the facts for that of the Tribunal.

77 There is no doubt that this Court, when hearing appeals from the Tribunal which involve challenges to findings of fact, should exercise restraint. Parliament plainly contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision. As long as it is clear that the Tribunal gave rational consideration to probative evidence, the fact that another person, or even this Court, reviewing the same material may have come to a different conclusion is not to the point: Fitz-Gibbon v Inspector General in Bankruptcy [2000] FCA 1677; (2001) 180 ALR 475 at 484."

57 In Comcare v Moon [2003] FCA 569 Mansfield J reiterated the rule that if there is any evidence rationally or legally capable of supporting a finding of fact, the finding of fact does not involve an error of law even if there is a significant body of evidence pointing to a contrary finding of fact. Here the ultimate issue was whether the worker's evidence could be relied upon on the issue of headaches and her reasons for attending the chiropractor. It is not attacked on the grounds of the weight given to the evidence used in the reasons by the learned Deputy President to reach the conclusion that her evidence was unreliable. This is significant where the finding was that the worker was honestly recounting the matter and doing her best in relating the facts as her memory allowed. If there had been a finding that she was of an untrustworthy nature that conclusion could have supported the resulted. But that is not the case. Therefore in our opinion what is involved is a question of law on the basis of a conclusion made in the "absence of the evidence". In NRMA Insurance Ltd v Tatt & Another (1989) 94 FLR 339 Samuels JA expressed the principle as follows (at p 353):-

"Gallop J was not entitled to reverse the finding of the Tribunal which was based on its view of the credibility of the witnesses unless it was seen clearly to be wrong on grounds which did not depend merely on credibility - for example, on the ground that the evidence which was accepted was inconsistent with established facts, or was so improbable that no reasonable person could accept it, or that the judgment of the Tribunal disclosed that its conclusion was affected by some error of law or fact. ..."

58 The appellant also argues an inadequacy of reasons for decision. This is argued as an additional basis to impeach the decision. She contends if certain conclusions were to be drawn then something more needed to be said to expose the reasoning. A convenient starting point for an examination of the principles we must apply is to be found in the decision of Olsson J in T v The Medical Board of South Australia (1992) 58 SASR 382 at 408 where His Honour considered whether the failure of the Tribunal in that case to make comprehensive and definitive findings as to the major issues of factual dispute debated before it constituted an error of law. His Honour commenced by stating the rule that in cases of the type before us a failure to give adequate reasons would necessarily have the practical effect of compromising any proper appellate process in a manner that would be contrary to the clear intendment of the statute: see Watson v Anderson (1976) 13 SASR 329. In particular His Honour stated (at p 409):-

"The type of reasoning above expressed is very much in accord with the judgment of the Full Court of Victoria in Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8. In the course of its judgment in that case, the court expressly held that, whilst an assessment of the adequacy of a court's reasons will depend upon the circumstances of the case, the reasons will be held to be inadequate if either the appeal court is unable to ascertain the reasoning upon which the decision is based or, alternatively, justice is not seen to have been done."

59 What, however, should be satisfied, as we understand the principles, is the setting out of the detail of how the Tribunal resolved conflicting bodies of significant evidence: see Fletcher Construction Australia Ltd v Lines McFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1. Fletcher's case involved two bodies of significant and contradictory evidence, namely the evidence of one Quigley and the evidence of one Codd. The Court, while accepting the trial judge's entitlement to accept one witness in preference to another, required in the circumstances clear details of the reasoning for the preference (at par 75). The Court overturned the decision primarily because the trial judge's reasons for rejecting Codd's evidence were based on flawed characterisations and false premises. But the second principle area of dispute related to the failure to give proper reasons (par 97). The Court adopted the statement of Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 441:-

"Perhaps the primary reason for an obligation on courts to provide reasons is the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law. The absence of reasons or insufficient reasons may not allow an appeal court to determine whether the trial judge's verdict was or was not based on an error of law or an appealable error. ..."

60 Importantly for the case before us, in Fletcher's case the Court added a further principle taken from Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 namely that the reasons "provides the foundation for the acceptability of the decision by the parties and the public". The Court referred to the need for justice to be seen to be done and adopted the statement of principle by Megaw J in Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478 to the effect that:-

"The decision might be perfectly right, but the person against whom it was made was left with the real grievance that he was not told why the decision had been made."

As such this principle meant there is an obligation on the Tribunal to deal with all significant and probative evidence presented in the case (see Fletcher's case at pars 101, 102, 103, 104) to expose how, in the decision maker's mind, it has been considered and if involving conflicting evidence how the conflict was resolved.

61 The appellant also cites the recent decision of this Full Tribunal in WorkCover Corporation/Royal & Sun Alliance Workers Compensation (SA) Ltd (Adelaide Casino Pty Ltd) v Hunter [2003] SAWCT 63 at pars 40 - 41. That case relied on the decision of Gray J in Papps v Police [2000] SASC 183; (2000) 77 SASR 210. The appellant argues that decision stands for the principle that it is not enough merely to deal in some way at least with the conflicting material of significance. The obligation is to deal with it in sufficient depth and beyond the need of the drawing of favourable inferences by the appellate tribunal. The appellant complains in the case before us significant pieces of evidence were not even mentioned. Areas of important evidence needed to be somehow reconciled or in some manner dealt with. These were in specific areas, (viz the complaint of headaches) and in some cases were simply passed over. The appellant included the evidence of the appellant's husband, Mr Edge (statement AB Vol I 54, 55, oral evidence AB Vol II 291), the treatment of the Lyell McEwin records (pars 87, 88 of the reasons for decision), the significance of the history obtained by Dr Norton (par 79 of the reasons for decision) and the evidence of Mr Havinga of a history of headaches. The respondent countered by submitting in respect to the evidence of Mr Edge it is dealt with "impliedly" (Respondent's Outline of Submissions par 12).

62 The most significant part of this contention and to our mind a determinative aspect is the absence of any reference to Mr Edge's evidence. That evidence was to the following effect (AB Vol I 54, 55):-

"11 Between late 1995 and August 1996 I noticed a number of changes in Sandra. She became totally focused on work and was constantly discussing the problems that she was having at work and worried about aspects of her work.

12 Prior to us going overseas not only did she talk much more often about work in a distressed way but she also became teary and upset. I notice (sic) that she was coming home from work upset and she was also complaining of headaches almost every night. At this time Sandra was only working approximately three days a week. When I saw the state that she was in and that things were not improving and that she was coming home more regularly crying with headaches and obviously distressed I suggested to Sandra that it may be appropriate for her to go and see the doctor.

15 Generally I would go to the general practitioner's with Sandra and I remember discussing the possibility of her going to a chiropractor. Neither the general practitioner nor Sandra believed in the use of strong medication to deal with the ongoing problem. The general practitioner could see no reason why the chiropractor shouldn't be a viable form of treatment. It was at this stage that Sandra started seeing Dr Havinga.

16 When Sandra went to the chiropractor's I would wait in the waiting room. The main things that she complained of was the headaches and also she felt that the muscles in her neck and shoulders were also tense and I put this down to the fact that she was anxious and stressed about her job.

17 In relation to Dr Havinga's notation that Sandra had been painting the skirting boards, I was with Sandra when she was doing the skirting boards. I was painting the skirting boards and door frames down the passageway and Sandra wanted to do something and help. Sandra knew that she couldn't do any painting up high because her headache was sore so she tried to do the skirting boards around the floor area. She got down on the floor and started painting for a very short period of time but didn't feel well and had to stop. She didn't do any standing or any heavy work at all. She only did that painting for no more than 15 or 20 minutes. ..."

63 In his oral evidence, Mr Edge confirmed his statement (AB Vol II 288) and confirmed the pattern of headaches throughout the relevant period (AB Vol II 297). Mr Edge's evidence was not inherently suspect because of his marriage to the appellant. A reading of it did not show it to be inherently implausible such as to hardly need analysis. It was entitled to be treated on the same footing as all other evidence. It was significant corroboration of the appellant. If it was to be rejected it had to be dealt with and the reasons for its rejection manifest. The failure to deal with it and the importance of the evidence demonstrates error on a question of law.

64 In our view for the reasons stated the appeal must be allowed. We have not dealt with the issue of the third claim regarding headaches as it must necessarily suffer the same result and for the same reasons as in the case of the second claim's appeal. As indicated at the outset the appellant agreed if successful the only order we could make was for a re-trial.

65 The appellant appeals a decision of a learned Deputy President that confirmed the respondent's rejection of two claims for compensation.

66 The appellant is a married woman of 48 years. She worked for the respondent in various specialist units servicing dementia patients. In early 1995 a new coordinator of the dementia program was appointed. She was the appellant's supervisor. Over the ensuing months a relationship of conflict evolved between the appellant and her supervisor. The appellant became ill and in December 1996 her general practitioner Dr Roberts certified her incapacitated for work by reason of workplace stress. On 16 December 1996 the appellant lodged a claim for compensation for stress citing as the cause "communication breakdown".

67 On 10 March 1997 the appellant was examined by Dr W Blakemore at the request of the respondent. Dr Blakemore reported two days later.

68 By determination dated 11 April 1997 the respondent rejected the appellant's claim. The appellant disputed this decision and this dispute was one of three rejected claims heard and determined by the learned Deputy President. In respect of this matter the learned Deputy President found for the appellant, setting aside the respondent's determination of 11 April 1997.

69 On 27 April 1997 the appellant engaged in painting some skirting boards at home and this activity gave rise to neck symptoms.

70 On 1, 8 and 15 May 1997 the appellant consulted a chiropractor Mr H Havinga. She had previously seen Mr Havinga in 1994 for six consultations and treatment for `left cervical syndrome' which Mr Havinga said was an expression referring to early degeneration of the cervical facet joints producing referred pain in the shoulder muscles. This had followed her suffering a whiplash injury in 1983 and Mr Havinga postulated that that injury had made her vulnerable to cervical syndrome.

71 In 1996 the appellant had again consulted Mr Havinga, this time for pain in her left hip. Mr Havinga described giving her appropriate treatment using acupuncture.

72 Mr Havinga said that at the consultation on 1 May 1997 the appellant complained of pain in her left shoulder region ("I am referring to the trapezius muscle on top of the shoulder ... between the neck and the shoulder joint ..." tr 163.) He said that she told him she had been down on her hands and knees painting skirting boards on the previous Sunday [27 April 1997] and that she had experienced pain in the left shoulder area ever since.

73 Mr Havinga said that the appellant also told him she was suffering headaches and was receiving treatment at the Lyell McEwen Hospital where she worked. He said that she did not seek treatment from him in relation to her headaches, nor did he treat her for same.

74 Mr Havinga's evidence details his treatment of the appellant by way of laser beam therapy and manipulation of her neck.

75 On 19 May 1997, four days after her third consultation with Mr Havinga, the appellant suffered a stroke whilst getting out of bed.

76 On 1 July 1999 the appellant lodged a second claim for compensation, it being alleged that her stroke and consequent incapacity for work was caused by her employment. The link with her employment, it was asserted, was that she had suffered the stroke as a result of the procedures performed by Mr Havinga, and that her reason for going to Mr Havinga for treatment was to alleviate a work caused disability, ie headaches.

77 By determination dated 17 September 1999 the respondent rejected the appellant's claim for compensation on various grounds including the assertion that the appellant's disability had not arisen out of or in the course of her employment.

78 In July 2001 the appellant lodged a third claim for compensation, describing her disability as "headaches and muscle tension" attributable to "communication breakdown" at work on 4 July 1996. By determination dated 10 September 2001 the respondent rejected this claim for compensation on various grounds including the assertion that there was nothing to suggest that the appellant had suffered the claimed disability on or about 4 July 1996.

79 The learned Deputy President confirmed the respondent's rejection of the appellant's claim for compensation because he was unpersuaded that the appellant's attendances on and treatment by Mr Havinga were for a disability that arose from her employment. In arriving at that conclusion the learned Deputy President preferred the evidence of Mr Havinga over that of the appellant which was to the effect that she had sought treatment from Mr Havinga for chronic headaches that she had experienced since July 1996 and that she attributed to her problems at work, as she described in examination in chief:-

"Q During the time that you were off work in January, February, March and part of April 1997, how were you feeling emotionally.

A Distressed, frustrated, angry with myself because I wasn't coping, really not a good time.

Q You ended up having some chiropractic treatment by Mr Havinga.

A Because of tension headaches that I had been getting since basically through all the process at work that was happening at work and they weren't being relieved so that was the last option, chiropractic treatment.

A Dr Roberts, my GP, was in his surgery one day with my husband and through a discussion, that was the last resort, and we agreed that a chiropractor was about the last because medication, I was taking Dymadon Co and I'd tried all the other medication and everything else that I was doing, and so it was agreed on - I was under the impression Dr Roberts referred me to Mr Havinga."

80 The learned Deputy President, whilst accepting the appellant's honesty, found that this aspect of her evidence was reconstructed and against the weight of evidence that indicated to his satisfaction that she consulted Mr Havinga for recent onset neck/shoulder pain and not for her headaches.

81 The appellant contends on appeal that the learned Deputy President erred in law in that he:-

1 Failed to provide adequate reasons for his judgment.

2 Erred in drawing some inferences, and erred in not drawing other inferences that he should have done on the evidence.

3 Erred in the application of the relevant standard of proof to the established evidence.

82 The applicable law is that declared by Gray J speaking for the Full Supreme Court in Papps v Police [1999] SASC 210 at 218 - 219 where he said:-

"The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee, the reasons must be "coherent, intelligible and comprehensive". But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance v Massoud:

"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."

In my view, the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed."

83 See also per the Full Bench of this Tribunal in WorkCover Corporation/Royal and Sun Alliance Workers Compensation (SA) Ltd (Adelaide Casino Pty Ltd) v Hunter [2003] SAWCT 63.

84 The reasoning upon which the learned Deputy President based his decision to reject the appellant's account as to the reason for her seeking treatment from Mr Havinga is, in my view, plain enough. On the whole of the evidence, necessarily with emphasis on the evidence of the worker and the contrary evidence of Mr Havinga and Dr Roberts, the learned Deputy President concluded that the appellant's account on this issue was improbable.

85 The appellant's complaint that the learned Deputy President failed to specifically address the evidence of the appellant's husband is a justified criticism, but I am not persuaded that it constitutes an error on a question of law. It is, as Mr Lovell QC submitted, implicit in the learned Deputy President's judgment that to the extent that Mr Edge's evidence supported his wife's account as to the reason she originally went to Mr Havinga, his evidence too was rejected.

86 It is questionable, moreover, as to what assistance Mr Edge's evidence gives. His written statement indicates that his wife had symptoms in her neck and shoulders before her consultations with Mr Havinga, and in particular before her third consultation on 15 May 1997 when she complained of her neck being worse, and that these symptoms, along with her headaches, were the main things that she complained about to Mr Havinga. Whilst to some degree this corroborates the appellant's written statement wherein she says that when she first attended Mr Havinga she complained of `aching muscle pain' in the left side of her neck and also headaches, it is at odds with the appellant's testimony which was to the effect that when she first saw Mr Havinga her only problem was `tension headache' across her forehead, with no problem in her left shoulder or neck area.

87 The appellant testified that at the second consultation on 8 May 1997 her symptoms remained the same - just the tension headache. Asked specifically about left shoulder or neck pain, she denied this.

88 It was Mr Edge's testimony that prior to the third consultation with Mr Havinga on 15 May 1997 his wife had complained to him of her neck feeling worse. This is at odds with the appellant's testimony.

89 It can be assumed that the learned Deputy President had regard to the evidence of Mr Edge. That he did not specifically refer to it in his judgment does not per se demonstrate an error of law. A judge's reasons are not required to mention every piece of evidence or argument relied on by the losing party as relevant to an issue. That counsel for the appellant made no reference to this evidence of Mr Edge in his final address might say something about its probative value.

90 Mr Edge did not sit in on any of the consultations with Mr Havinga (he said that he would wait in the waiting room) and his contribution was largely dependent on what he was told by his wife. The appellant and Mr Havinga were clearly the prime witnesses to give first hand evidence of what was said and done between them.

91 The learned Deputy President set out why he preferred the evidence of Mr Havinga to that of the appellant on the relevant issue and it cannot in my view be maintained either that his reasoning is unclear or that justice has not been seen to be done.

92 Mr Rossi submitted that the learned Deputy President made no finding as to why the appellant went to Mr Havinga. I reject this. It is implicit in the learned Deputy President's acceptance of Mr Havinga's evidence that he was satisfied that the reason the appellant went to Mr Havinga was that attested to by Mr Havinga, namely, for treatment of the pain that she was complaining of in the trapezius muscle between her neck and left shoulder, pain that she attributed to painting skirting boards on the previous Sunday.

93 Moreover, it was for the appellant to prove the connection between her treatment and her employment and the learned Deputy President's explicit finding at par 92 of his reasons is, in my view, not only sufficient, but appropriately expressed.

94 The appellant's complaints in this category amount to no more than a request to this Full Bench to evaluate for itself the evidence and to substitute a different conclusion from that reached by the learned Deputy President. This is not the role that Parliament intended for the Full Bench; South Australia Police Department v Barber [2001] SAWCT 100.

95 The learned Deputy President's findings in relation to the key issue as to why the appellant consulted Mr Havinga, namely, that Mr Havinga's evidence, supported as it was by his contemporaneous notes, was reliable, but that the appellant's testimony was not on this issue, was open on the evidence. There is nothing in the evidence that compelled a different conclusion.

96 The appellant's outline of contentions asserts:-

"... The failure to provide adequate reasons makes it difficult to explain where in the decision making process the learned acting Deputy President failed to properly apply the relevant standard but having regard to his final decision it is an inevitable conclusion that he failed to apply the standard of proof that the appellant was required to discharge. The approach to the evidence of the appellant and Mr Havinga in particular on this topic gives rise to the possibility that His Honour erroneously concentrated upon the evidence of Mr Havinga which amounted to his belief as to why the appellant attended rather than concentrating upon the evidence of the appellant. It is not clear from the judgment whether the learned acting Deputy President considered that there was a conflict between the evidence of the appellant and Mr Havinga on this topic or whether he accepted that the evidence was capable of assessment without a finding of conflict which would have been consistent with his finding that both witnesses were witnesses of truth".

97 Mr Rossi did not elaborate much on this aspect in his submissions before us. Suffice to say that there is no indication whatsoever, in my view, that the learned Deputy President failed to apply the appropriate standard of proof to the issues at hand. Indeed, par 55 of his judgment accurately records the relevant standard of proof that the appellant was required to meet:-

"55 The worker does not have to prove negligence to succeed in this Tribunal. It will be sufficient that she shows on the balance of probabilities that the stroke occurred as the result of the chiropractic treatment (there being no dispute that her disabilities are the cause of her undoubted total incapacity) and further that she sought that treatment to alleviate a work related condition".

98 The learned Deputy President said in relation to this claim:-

"94 As to the claim arising from the headaches as a separate entity arising either as a sequel to the stress or as an injury simpliciter, I am not persuaded by the applicant's case. The claim is very much an after thought on July 2001, four years after the alleged precipitation thereof and it was made so to speak, to tidy up the gaps in the claim structure".

99 On appeal, Mr Rossi acknowledged that the appellant's success on this claim turned on the learned Deputy President finding that the appellant went to Mr Havinga for treatment of an employment related condition, ie work related headaches. The learned Deputy President's finding in par 92 was clearly against the appellant on this issue, and it not being shown that this finding was the product of an error of law, the appeal under this head must fail.