Appeal - The exempt employer accepted the worker suffered three separate physical injuries - Paid compensation and engaged him in modified duties in exempt employer's light duties section - Worker subsequently summarily dismissed for serious and wilful misconduct - The worker then claims a psychological disability secondary to the accepted physical injuries resulting in total incapacity - Claim for psychological disability rejected by exempt employer on basis that it did not arise substantially from his employment, was in any event the result of reasonable administrative action and did not preclude his continued employ but for his breach of mutuality - At trial held the psychological disability secondary to the accepted physical injuries and resulted in the worker being totally incapacitated, inter alia, until the start of 2011 - Worker entitled to compensation to that date and thereafter partially incapacitated - Claim for compensation from 2011 not barred by his breach of mutuality but entitled to difference between his notional weekly earnings and what he could have earned in suitable employment in, inter alia, exempt employer's light duties section which had at all times been available to him - This was to be quantified by further hearing - Also worker's entitlement to WPI assessments of left shoulder, right elbow and right knee quantified - Exempt employer appeals, worker cross appeals and adds alternative contentions, WorkCover intervenes - Exempt employer on appeal submits question of law errors in findings without evidence, inadequate reasons for decision, expert evidence wrongly admitted, in the construction and application of s 30A of the Act, finding of total incapacity on assumptions not made out and construction or application of s 43 Guidelines - Worker on appeal submits absence of jurisdiction to determine matters not determined by exempt employer, error in imputing mutuality principles to s 35A(5) the provisions of which overrode those imputations and making findings of suitable employment in light duties section - Intervenor submits error in approach to s 43 assessments - Examination of which grounds raise questions of law - All grounds of appeal rejected save Intervenor's as to approach required by s 43 assessment of right knee - Appeals otherwise dismissed - Ss 30A, 35, 35A, 43 WorkCover Guidelines, Guides to the Evaluation of Permanent Impairments 5th Edition, Workers Rehabilitation and Corporation Act 1986.

Arrowcrest Group Pty Ltd v Nguyen [2000] SAWCT 121

Seal v Transfield Services (Australia) Pty Ltd (2010) 108 SASR 312

Kelvinator v Jezior (1988) 49 SASR 592

South Australia Fire and Emergency Services Commission v Workers Compensation Tribunal and Another [2009] SASC 213; (2009) 105 SASR 1

Skinner v Frappell [2008] NSWCA 296

March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Dasreef Pty Ltd v Hawchar [2011] HCA 21

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447

Louth v Diprose (1992) 175 CLR 631

Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391; (2007) 99 SASR 461

Devers v Kindilan Society [2010] FCAFC 72; (2010) 269 ALR 404 at para [58].

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; (1999) 160 ALR 588

Rosmini v Chrysler Australia Limited (1973) 6 SASR 212

Baldwin & Francis Ltd v Patents Appeal Tribunal and Others [1959] AC 663

Smoker v Pharmacy Restructuring Authority and Others [1994] FCA 1487; (1995) 125 ALR 577

Roberts v GM Holden Ltd [2010] SAWCT 28

Roberts v GM Holden Ltd [2010] SAWCT 47

Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snackfoods) [1993] SASC 4356; (1993) 61 SASR 487

Hornhardt v WorkCover Corporation/HIH Workers Compensation (SA) Ltd (NTP Pty Ltd) [2000] SAWCT 157

WorkCover Corporation v Davey (2011) 110 SASR 173

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49

Last v WorkCover Corporation [2010] SASC 338

Jones Lang Lasalle (Vic) Pty Ltd v Korlevski & Ors [2012] VSCA 305

On appeal from a decision of Deputy President Judge Hannon [2012] SAWCT 20

1. The exempt employer by Notice of Appeal challenges the Judicial Determination. The worker in response challenges the Judicial Determination by Notice of Alternative Contention and Cross Appeal. WorkCover Corporation also challenges parts of the Judicial Determination and the submissions by Notice of Intervention.[1] The Judicial Determination made seven findings in respect to the worker's claim for compensation. These were set out in summary form.[2]

1. These reflected the agreed Statement of Issues filed and were to the following effect:

1. The worker was totally incapacitated from 24 August 2009 to 31 January 2010 due to his compensable left shoulder disability. He was thereafter totally incapacitated by the psychological sequelae of that disability to 31 December 2010. Thereafter he was partially incapacitated. 2. His claim for ongoing income maintenance from 1 January 2011 was not barred because of breach of mutuality.[3] His entitlement was the differential between his notional weekly earnings and the amount he could have earned in suitable employment. Such employment would have been available to him in the Logistical Optimisation Centre (hereinafter referred to as the "LOC") from 1 January 2011.[4] It was not required of the employer by the legislation in the circumstances of this case to make a determination under s 35A(4)(b) in this regard.[5]

1. The Tribunal had jurisdiction to determine that designated weekly earnings figure despite none having been set in the subject disputed decision. It could set the ongoing entitlement including making a finding of suitable employment other than employment in the LOC (and set more than one designated weekly earnings figure) whether for the periods after 24 August 2009 or after 31 August 2009.

1. The worker had suffered compensable illness or disorder of the mind presenting first in January 2008. This developed out of the compensable physical disabilities suffered in 2007. 2. The worker had suffered total incapacity from 8 May 2009 to 31 December 2010 by reason of a compensable illness or disorder of the mind. 3. The worker was therefore entitled to income maintenance in consequence of the compensable illness or disorder of the mind from 24 August 2009 to 31 December 2010 as well as s 32 expenses up to and including September 2011. 4. The worker was also entitled pursuant to s 43 of the Act to the following whole person impairment assessments: * (a) Left shoulder: 11% (10% plus 1% for scarring). * (b) Right elbow: 6% (4% plus 2% for scarring). * (c) Right knee: 8% (8% plus 0% for scarring).

1. Certain matters were not disputed. The worker suffered three separate compensable physical disabilities in his employ with the exempt employer between February 2001 and March 2008. These resulted in variable effects over the period November 2007 to May 2009. At times the worker was fit for modified duties. At other times he was totally unfit. He had been provided modified duties in the LOC. The worker was stood down on 8 May 2009 because of allegations of serious and wilful misconduct. Subsequent investigation of those allegations by the exempt employer resulted in his dismissal on 12 August 2009. When initially questioned about the allegations by the exempt employer he denied any wrongdoing. At trial he conceded wrongdoing and also admitted it constituted a breach of mutuality. However he continued denial of the more serious aspects of the allegations.[6]
2. Of central importance to the exempt employer on this appeal was the inference it said necessarily followed from the sequence of events. The worker was suspended on Friday 8 May 2009 when he was told of the allegations. On Tuesday 12 May 2009 he consulted his general practitioner and was certified unfit for work on account of an adjustment disorder secondary to his physical disability. The date given for that secondary condition was 15 January 2008. On Thursday 14 May 2009 the worker lodged a claim upon the exempt employer for income maintenance on the basis of anxiety and depression first suffered in January 2008.[7] Tying this condition to an earlier period was an obvious invention.[8]
3. The exempt employer disputed this claim on various bases. The first that any adjustment disorder was due to personal domestic and financial pressures. Alternatively it arose wholly or predominantly out of the events on and following 8 May 2009 surrounding the accusations of misconduct.[9] Those disciplinary actions by the exempt employer constituted reasonable administrative action taken in a reasonable manner in terms of s 30A. In the further alternative s 30B(2)(b)(1) applied as his "condition" arose from serious and wilful misconduct and had not resulted in serious and permanent disability. In any event the exempt employer contended save for a period following surgery to the worker's left shoulder on 23 July 2009, resulting in total incapacity until 23 August 2009, he was only ever partially incapacitated by his "condition" and disqualified from weekly compensation by want of mutuality.[10] The worker for his part contended total incapacity until March 2011 when he returned to part-time employment as a security guard with another employer.[11]
4. The learned Judge recorded the credibility of the worker was central to the resolution of the issues arising in the matter.[12] His Honour ultimately concluded that the worker's denials of the more serious aspects of his misconduct were untrue. His Honour was satisfied the worker engaged in serious and wilful misconduct, made false denials in that regard both to the exempt employer and in his evidence to the Tribunal and had moreover engaged in a degree of harassment beyond that he had admitted to.[13] But despite those findings, His Honour accepted the worker's evidence as to the development of the anxiety and depression, particularly as it related to a period prior to his being stood down. Furthermore, and with some reservations, His Honour accepted the worker's evidence as to the extent of his disabilities and consequent incapacity, both before and after his dismissal.[14] We proceed to a close examination of the judgment.

1. His Honour related the worker's evidence as to his employment history leading up to and including his engagement by the exempt employer in June 1999. Also related was his domestic history, the history of his various physical injuries affecting his left shoulder, elbow and right knee, the treatment he received, the symptoms and limitations resulting and how these generally affected him.[15] The evidence was examined in combination with the related medical evidence. Having evaluated that material, His Honour accepted the evidence of the onset of physical symptoms as described by the worker and the extent of the resultant pain and disability up to August 2009.[16]
2. In particular His Honour made the following finding:[17]

"During January 2008 the worker attended on Dr Latif on two occasions with symptoms which Dr Latif diagnosed as revealing a condition of anxiety and depression. No connection with the work injuries was recorded at the time, and whether there was a connection between the two was a matter of fundamental dispute between the parties. ..."

1. His Honour also detailed surgical interventions necessitated by the worker's work injuries. One a right elbow ulnar nerve release on 7 April 2008 and the other an arthroscopy and lateral release for the right knee on 12 June 2008. On his return to work from the latter, the worker stated that the duties provided to him in the LOC were beyond his capacity. Indeed a reappraisal resulted in him being returned to more modified duties. It was at this time he engaged in some of the acts of serious and wilful misconduct that led to his dismissal.[18] Also of some relevance was the fact that Dr Latif, on 21 July 2008, noted the worker's, "stress and depression".[19]
2. In August 2008 the worker's shoulder pain worsened and this was described as due to classical bursal impingement. He underwent further surgical intervention on that shoulder in the form of arthroscopic decompression and bursectomy on 10 December 2008. It was during his last day at work before that procedure that the worker was alleged to have carried out acts of serious and wilful misconduct.[20] The worker's condition thereafter remained much the same until his dismissal.[21]
3. His Honour described the evidence of anxiety and depression. The worker was recorded by Dr Latif on 10 January 2008 as complaining of feeling anxious, obsessive, angry and depressed. Anxiety was diagnosed and an antidepressant medication Effexor prescribed. The worker was referred for psychological counselling.[22] Some 20 further attendances on his general practitioners occurred up to 8 May 2009. On two of these occasions the worker attended in relation to an anxiety condition alone and on another four occasions his physical disability as well as his anxiety were addressed. On 9 January 2009 the level of Effexor was doubled. During the period he had difficulty managing his feelings of anger. He complained of being harassed and discriminated against by management in the LOC particularly Mr Clifford.[23] His Honour accepted the worker's evidence as to his emotional problems during this time.[24]

1. His Honour described in detail the physical features of the LOC and the way its activities were organised.[25] Though of an open plan design workers were not necessarily able to observe each other.[26] It was a noisy place and workers talked to each other regularly during a shift. These conversations were at times of a crude nature.[27] These generalities of circumstances were accepted by His Honour.[28]
2. The exempt employer had what it called a "Diversity Policy". Its purpose was to maintain a workplace free from discrimination, harassment and victimisation.[29] In particular the subject harassment was forbidden.[30] The worker agreed he had been fully informed of his obligations under the policy. On 7 May 2009 a formal complaint under the policy was made against the worker.[31] The basis of that complaint was an interview by a woman claiming compensation from the exempt employer due to anxiety and stress resulting from harassment by the worker.
3. The specific allegations are detailed in His Honour's judgment. It is enough to say the serious and wilful misconduct alleged fell into the most serious category. The worker denied every one of the allegations, countering by accusing the complainant of lying and serious and wilful misconduct on her own part. His Honour found the worker deliberately misled the exempt employer at this time.[32] The exempt employer was satisfied the complaints were true and the worker was dismissed for serious and wilful misconduct on 12 August 2009.[33]
4. The worker maintained his stance of complete denial until 21 February 2011 when he signed a written statement for use at trial. Indeed before that date he had maintained his innocence to the doctors he attended for treatment or medico-legal opinion.[34] He explained his denials at trial as a by-product in part, if not in whole, of his anxiety and stress and his concern about losing his job. But his admissions only went so far as to comments passing between him and the victim which he conceded were explicit. Moreover he insisted these were joined in by the victim and really amounted to nothing more than crude sexual banter.[35]
5. But the worker conceded his behaviour was wrong.[36] Thus at trial, the issue became whether there had been, in addition to crude remarks, one or more instances of serious and wilful misconduct. It was conceded by the worker that if the Tribunal accepted the allegations of serious and wilful misconduct as true, it would justify a termination on those grounds and it could not be contended that the exempt employer's action was unreasonable or performed in an unreasonable manner.[37]
6. His Honour's reasons for decision dealt finely and thoroughly with the evidence of each of the witnesses both lay and medical. No criticism was made, nor indeed could have been made, of the measured and exhaustive examination of the evidence of each of these witnesses. Having extensively set out the evidence of each of the witnesses His Honour then detailed the approach he would take to the assessment of credibility.[38] In particular he cautioned himself on the various shortcomings to the evaluating of evidence. He added that the motivation of any particular witness to give false and misleading evidence must be borne in mind.[39]
7. His Honour paid close attention to the evidence of the worker both acknowledging his positive aspects but maintaining scepticism of his version.[40] Indeed it is plain His Honour took a poor view of the worker.[41]

His Honour concluded the worker lied about the serious and wilful misconduct allegations.[42] He found the exempt employer's dismissal of the worker was proper.[43]

1. His Honour however described the worker's evidence in regard to the cause of the psychological disability as plausible. The origin of his stress, anxiety and depression was according to the worker due to the pain effects of the left shoulder and right elbow injuries. These in turn created domestic disharmony. The domestic disharmony was in part due to his inability to engage in the usual activities expected of him around the house because of his injuries.[44] However while he complained of anxiety to Dr Latif on 10 January 2008, he did not at that time propose this connection. He claimed in evidence that at that time he, "didn't really know what was going on".[45]
2. Dr Latif testified that the psychological condition was noted clinically prior to 8 May 2009. That condition in Dr Latif's opinion worsened after the worker was stood down following the complaints against him.[46] In Dr Latif's opinion the psychological injury was produced by the physical injury.[47] Dr Blakemore, the psychiatrist, noted the increased prescription of Effexor during 2008 and the reference to psychological counselling.[48] In his opinion the psychological condition was the result of his physical injuries and apparently worsened by the events of May 2009. In his opinion the cause was indicated by the sequence of events.[49] Finally Dr Nagesh who first saw the worker after he had been stood down, expressed the view that the worker was suffering a major depressive disorder of severe severity without psychotic features as a result of a number of stressors including being stood down. But it was also due to his physical injuries, the pain and limitation of movement they produced, the resultant impact on his marriage and the mishandling of his case by the rehabilitation consultant.[50]
3. The worker attended Mr Roger Wright, a psychologist, on some 20 occasions between 9 June 2009 and trial.[51] In that witness' opinion there was significant though fragile recovery, the worker being vulnerable to relapse due to further stressors.[52] During consultations though the predominant discussion had been regarding suspension, dismissal, compensation and child access, the worker had complained at the first consultation of the pain caused by his work injuries. A significant factor in this witness' acceptance of a causal relationship between the worker's injuries and the depression was that the worker had a strong work ethic, was proud of his strength and invested much of his esteem in his employment.[53]
4. Dr Ewer, the psychiatrist, had seen the worker on referral from the exempt employer on three occasions. The first was 24 June 2009. On the basis of the initial history given by the worker, Dr Ewer considered the worker to be suffering a chronic adjustment disorder with depressed and anxious mood presenting in January 2008 which was substantially work caused.[54] He considered the psychiatric process resulted in partial incapacity only and that the worker was fit for work for up to 30 hours per week.
5. When Dr Ewer became aware the worker conceded a significant element of the misconduct alleged, he expressed uncertainty as to the cause, switching his preference to, "family stressors".[55] This shift was further influenced by an examination of Dr Latif's clinical notes and the absence of a history connecting work and the depression when the worker was seen in January 2008 and January 2009. Dr Ewer noted other concerns.[56] Indeed the dishonesty of the worker caused Dr Ewer to wonder the accuracy of the diagnosis of the adjustment disorder itself. Whatever else, in his opinion the signs and symptoms did not support a diagnosis of major depressive disorder.[57]
6. The reasons for decision went on to detail the gradual resolution of the psychiatric symptoms and the reduction, then cessation, of the Effexor medication through to the latter months of 2011.[58] By March 2011 the worker had started some work as a security guard. This process of recovery to partial incapacity conformed with the conclusions of Dr Blakemore.[59] A more cautious opinion was given by Dr Nagesh who thought the worker remained vulnerable to relapses.
7. His Honour also examined the evidence of Mr Clifford, though stating it was not crucial to the causation issue.[60] This examination focused on the worker's complaint that he felt harassed and intimidated. His Honour was of the view that the various events described could well have been handled better by Mr Clifford. This contributed to the worker's frustration and his underlying anxiety condition in the period before he was stood down though it was not the substantial cause of his psychological symptoms.[61] All this was important to His Honour in indicating the anxiety condition which incapacitated the worker was operative prior to the attendance on Dr Latif on 12 May 2009.[62]

The findings on causation of anxiety and depression

1. This constituted the main contest at appeal. His Honour rightly noted his disbelief of the worker regarding the misconduct did not mean the worker's evidence relating to the anxiety and depression should be rejected.[63] His Honour made a number of observations regarding the worker's work ethic and self description.[64] He noted the worker had persisted at work with fortitude for some six years. Moreover Drs Blakemore, Nagesh and Mr Wright, who had formed similar views as to the worker's personality, testified the vulnerability of such personalities to anxiety and depression if their powers were impaired on account of injury. His Honour felt these and the observations of the worker in the witness box during the trial provided consistency.[65]
2. His Honour then stated his conclusion on primary fact:[66]

"I find that at the time the worker began developing his pain symptoms, he had been having difficulties in his relationship with his partner for some time ... including over financial matters and management of their son's Asperger's syndrome. Whilst the preinjury relationship difficulties may have contributed to symptoms of stress over a period up to and including the latter part of 2007, I find that the main causative factors of the increasing levels of frustration, anger and anxiety experienced by the worker at the end of 2007 were the injury to the right elbow in about September 2007, and the development of increasing left shoulder pain and disability, and the resultant partial incapacity which caused the worker to be assigned to modified duties from November 2007.

... I find that he was loath to accept the extent of his difficulties, and continued to push himself at work, and thereby aggravated his pain experience. This not only caused increased difficulties in discharging his work, but also created problems in carrying out activities of daily living and maintenance tasks around the home. These factors combined to cause additional feelings of inadequacy, frustration and anger, which in turn over the last few months of 2007 had a severely detrimental effect on the already vulnerable relationship with his partner.

I find that accumulating feelings of anxiety and anger, and their detrimental effect upon his relationship, were what caused him to attend upon Dr Latif on the two occasions in January 2008. ..."

1. His Honour then dealt with Dr Latif's evidence. He regarded this as vital to establishing a causal link.[67] Dr Latif had testified the worker repeatedly complained to him of pain and frustration in connection with the workers compensation situation and he linked it to his anxiety and depression. His Honour concluded:[68]

"I consider it probable, despite the worker being unable to recall it specifically, that at a number of his discussions with Dr Latif, most likely commencing at the attendance of 21 July 2008, he did link the pain from his injuries with feelings of frustration and anxiety. The consultation of 21 July 2008 appears to have taken place shortly after the incident giving rise to the worker's complaint that the allocation to him of the car moving duties involved discriminatory conduct, following which he transferred management of his physical disabilities from the Medical Centre to Dr Latif. It is likely that complaints about frustration with 'WorkCover' were prominent at this time.

... I accept the evidence of Dr Latif that complaints of this nature were made to him despite no explicit record to that effect being entered by Dr Latif in his notes. ...

... As stated, I find [the complaints indicating a link] were probably first expressly made on 21 July 2008 when Dr Latif took over management of the compensation injuries and recorded a more comprehensive history. ...

I find that the worker continued to suffer from pain, disability and frustration at varying levels throughout 2008 and up to 8 May 2009, and that these experiences contributed to a continuation of an underlying condition of anxiety and depression. ...

Thus I find that on 8 May 2009, when the worker was advised that he was being stood down on the basis of a serious allegation, he was suffering from an underlying condition of anxiety and depression, which to use the words of Dr Nagesh, had been 'flying under the radar'. I find this was more than just an incidental and passing condition of 'stress' which could be expected to be the experience of any worker dealing with the ongoing effect of several work injuries. It was a condition which was affecting the worker's mood and his ability to function despite continuing to attend work on modified duties."

1. Therefore His Honour found the worker was suffering an underlying condition of anxiety and depression as a result of his injuries.[69] The stress caused by the letter of 8 May 2009 standing him down severely aggravated that pre-existing condition. This crystallised the importance of his earlier signs and symptoms and was articulated by the worker in some semblance of chronological order. The reasons listed these stressful events.[70] His Honour thought the sequence in which the history was related, given the circumstances, was understandable. He said:[71]

"...I find that the worker gave a genuine and truthful history to Dr Latif of matters that had been causing him stress, upon the basis of which Dr Latif was entitled to conclude that since January 2008, the worker had been suffering from an adjustment disorder which was a sequel to his compensable work injuries, which had been aggravated by the events of 8 May 2009. ..."

1. In so concluding His Honour noted the contentions of the exempt employer that the worker's case should be rejected. His Honour preferred the worker's version.[72] He found, based upon the evidence of Drs Blakemore and Nagesh, that the worker was totally incapacitated for work from 8 May 2009 due to a combination of factors including the preexisting anxiety and depression. Adopting the view of Dr Blakemore he concluded the worker was fit for work by early 2011 on an unrestricted basis on account of his mental condition.[73]

1. The exempt employer's case was that the worker had no mental disability prior to 8 May 2009 and the operative events on that day were reasonable disciplinary actions taken in a reasonable manner. Alternatively any pre-existing mental disability was minimal and effectively the incapacity arose from disqualifying events.[74] However His Honour, having found the mental disability a sequel of the physical disability, ruled that the disqualifying provisions of s 30A could not operate applying the decision of the Full Tribunal in Arrowcrest Group Pty Ltd v Nguyen.[75] He further ruled that on the evidence, this mental disability did not, "arise wholly or predominantly" from events on and after 8 May 2009. The extremity of the worker's reaction was critically bound up with all that had preceded it, so taking it out of the reach of s 30A.[76] That also answered any defence which sought to rely on s 30B(2)(b)(1). The disability was not wholly or predominantly attributable to serious and wilful misconduct on the part of the worker.[77] The worker was therefore entitled to payments of income maintenance for the period of total incapacity from 24 August 2009 to 31 December 2010 inclusive.[78]

Entitlements during periods of partial incapacity

1. This concerns the period from 1 January 2011 to date. The worker's position was that despite the breach of mutuality an entitlement occurred under s 35A. As the exempt employer had made no determination as to what the worker could earn in suitable employment under s 35A(4)(b) the worker contended he was entitled to the difference between his notional weekly earnings and his current weekly earnings as a security officer.[79] Irrespective His Honour examined the worker's residual capacity levels, the nature of employment available at the LOC from August 2009 and whether "suitable employment" was available there since his recovery from the mental disability.
2. The worker's case was that prior to being stood down in May 2009 though certified fit to continue with his particular duties in the LOC, he had in fact been experiencing difficulties and was not physically fit for those duties.[80] The evidence of Drs Nimon and Wright were examined. His Honour preferred the views of Dr Wright as to the time it would take for the worker to achieve recovery of his left shoulder function following surgery in August 2009. That is the worker would have needed until the end of January 2010 for any significant improvement, with further improvement of function occurring over the next year. Importantly, His Honour concluded that by January 2010 the worker would have regained fitness for work of the nature for which he was certified fit in the LOC up to 8 May 2009. That was eight hours per day bench work with no line duties, no repetitive lifting, reaching or squatting.[81] Due to the ongoing mental sequelae, he would have remained totally incapacitated until 31 December 2010 when he would have been fit for the LOC work on the basis of physical disabilities alone.
3. The reasons then examined the issue of whether the LOC work was suitable, reiterating the worker's position that prior to 8 May 2009 it was beyond him. His Honour did not accept the worker's complaints as to the extent of his difficulty over the months approaching 8 May 2009 or that the LOC duties would now be beyond his physical capacity.[82] Moreover had there been actual difficulties then the exempt employer would have made adjustments to the work to accommodate the difficulties enabling the work to continue.[83] That would have been the case from the period of 1 January 2011. Suitable employment was therefore available.[84]

1. The exempt employer's case was that the entitlement to compensation by way of income maintenance under s 35A of the Act was subject to mutuality on the part of the worker.[85] That is during any period of partial incapacity. The worker on the contrary said the provisions of the Act were specific and no imputation of mutuality was permissible. Moreover that the designated weekly earnings could not be taken as the potentially higher amount, using the employment at the LOC, because the exempt employer had not made a determination with the requisite findings in subsection (4)(b).[86] The exempt employer was confined to the known earnings, namely the part-time security work the worker currently performed. Finally the matter was a jurisdiction issue as in the absence of a determination by the exempt employer on the topic, there was no jurisdiction for the Tribunal to decide upon suitable employment or set a designated weekly earning figure.
2. His Honour examined the various authorities dealing with mutuality. Referring in particular to the analysis of Kourakis J, as he then was, in Seal v Transfield Services (Australia) Pty Ltd[87] His Honour stated as follows:[88]

"Thus, to gain the benefit of a potential reduction in its ongoing income maintenance liability to a partially incapacitated worker by making a determination under s 35A(4)(b), an employer must in fact provide the worker with suitable employment, otherwise s 35A(5) will not allow any determination under s 35A(4)(b) to have any effect. Accordingly it must follow, from the objectives of the Act and the context of the entitlement provisions, that the worker cannot claim the benefit of a failure by the employer to make a determination under s 35A(4)(b), where suitable employment has been provided, or would have been provided but for a breach of mutuality, ..."

His Honour then concluded that because of the breach of mutuality the worker was not entitled to rely upon the failure of the exempt employer to make a determination under s 35A(4)(b). Rather his entitlement was to be calculated upon the basis of the determination which could have been made under s 35A(4)(b) as to ongoing income maintenance by reference to the amount he could have earned in suitable employment.[89]

1. What this meant in His Honour's view was that if the worker was to have any entitlement at all to income maintenance from 1 January 2011 it must be a product calculated without the benefit of the deeming provision. This was consistent with the opinion of Cox J in Kelvinator v Jezior.[90] Such entitlement would be based upon the difference, if any, between the notional weekly earnings and the weekly earnings which under s 35A(4)(b) the worker could earn in suitable employment provided he had been ready, willing and able to take it up. That was a matter, in His Honour's view, the Tribunal had jurisdiction to deal with in the exercise of its power under s 94C of the Act.[91] However the quantification of entitlement on that basis could not be resolved on the current evidence.[92]

1. This involved the assessment pursuant to the WorkCover Guidelines which for the most part adopted the Guides to the Evaluation of Permanent Impairments, 5th Edition, published by the American Medical Association.[93] Three separate injuries were assessed. These were the left shoulder, the right elbow and the right knee. Different results were reached by three different accredited specialists.[94] His Honour determined the assessments depended upon a basis provided for the assessment of a rateable impairment made by the accredited doctor. It was not to be determined by a process of the Tribunal making its own assessment.[95]
2. In approaching this matter His Honour stated none of the assessors regarded the worker as presenting in other than a genuine way. Moreover he concluded the worker cooperated appropriately with the examinations. To the degree there was a matter of the worker's credit in respect to these examinations, he made a finding in the worker's favour and rejected the contention of the exempt employer to the contrary.[96] He concluded the following WPIs upon the following basis.
3. In respect to the worker's left shoulder His Honour concluded 11% (10% plus 1% for scarring).[97] This was the result independently reached by Dr Byok and Dr Jones. His Honour stated:[98]

"There is little in dispute over the left shoulder assessment. I note that on the three occasions Dr Guirguis took range of motion measurements, there were significant variations up and down on a number of the six movements. I have no reason to doubt the accuracy of the measurements taken. I consider the variations must have been the result of fluctuations in the worker's condition on each occasion. In the circumstances I am confident that the more consistent outcomes obtained by Drs Byok and Jones produce a more accurate measure of the extent of the impairment. ..."

1. In respect to the right elbow His Honour concluded 6% (4% plus 2% for scarring). He found there was sensory deficit on the basis of the evidence of Dr Jones and further that on the basis of that finding the deficit be placed at Grade 4 level.[99] That depended on the acceptance of the worker's credit.[100] His Honour stated:[101]

"My conclusion therefore is that upon the finding of restriction on extension as noted by Dr Byok there is a 2% UEI [upper extremity impairment]. Further, that on the finding of Dr Jones as to loss of sensory impairment there is a 2% UEI. According to the Combined Values Chart these values combined would appear to translate to a 4% WPI, although I would hear the parties on that translated WPI figure if they took a different view as to the application of the chart."

1. The right knee was assessed at 8% (8% plus 0% for scarring). Again the worker's credit was upheld. His Honour concluded:[102]

"... [Dr Jones] considered that the only rateable impairment arose from a limitation on right knee flexion to 110º flexion which he considered should give rise to 8% WPI. Dr Jones also said that he noted objective signs of flexion contracture of 10º, signs not noted by either of the other assessors although Dr Jones suggested they should have been apparent. In any event, he does not appear to have suggested that this feature on its own produced a rateable impairment over and above the 8% WPI assessed on the basis of the measured limitation on flexion. He considered that no rating was appropriate for scarring.

... In my view the approach taken by Dr Jones in accepting that 110º flexion in the circumstances fell within the mild impairment range thus producing a WPI of 8% was permissible.

I consider that assessment as being likely to produce a more appropriate and more objective measure of the degree of impairment than the approach adopted by Dr Byok. ..."

1. In respect to the scarring, by Table 13.1 of the Guidelines categorisation depended on the assessor's judgment by reference to a number of criteria. In concluding this aspect His Honour stated:[103]

"... I accept the collective view as to 1% WPI for the left shoulder, and the majority view of 0% WPI for the right knee. However, I conclude that, as Dr Jones ultimately did, the criteria relating to the right elbow scar indicate that the appropriate rating is 2% WPI rather than the 1% assessed by both Drs Byok and Guirguis."

1. These are set out in the Appeal Book.[104] Leave was granted to add a further ground.[105] Though that constituted seven grounds, the gravamen of complaints may be described as follows:
   1. The finding the worker suffered a compensable psychiatric disability in January 2008. This, so it was claimed, was a finding not open on the available evidence. It was a finding without adequate reasons. Further Dr Latif's evidence that the symptoms of anxiety and depression seen on 12 May 2009 was a product of the worker's compensable physical disability was inadmissible because of the failure to prove the assumptions necessary to explain that conclusion.
   2. The construction and application of s 30A of the Act.
   3. The acceptance of Dr Wright's evidence concerning the worker's total incapacity from 24 August 2009 to 31 January 2010, which it was alleged, was based on assumptions never established.
   4. The construction of the Guidelines for assessing the worker's entitlement under s 43.

The worker submitted with the exception of the construction points the exempt employer's appeal was beyond jurisdiction and did not concern questions of law.[106]

1. At the appeal hearing, this centred mainly on the findings regarding the worker's credit and the evidence of Dr Latif. The latter was constituted by the Craigmore Family Practice Notes,[107] two reports of Dr Latif,[108] certificates[109] and the doctor's oral testimony.[110] This material disclosed the following. Dr Latif began seeing the worker for the treatment of anxiety and depression in 2008.[111] He thought that the cause of the anxiety and depression was the patient's WorkCover issues. These included his chronic pain, his frustration and his perceived lack of support in rehabilitation.[112] The worker was first seen on 14 November 2007 to obtain help with the management of his pain.[113] On 10 December 2007, at review, mild ulnar nerve neuritis with on and off pain in the right elbow was noted.[114]
2. On 10 January 2008 the clinical notes record the worker was living happily with his wife and son but, "anxious most of the times, sometimes obsessive, and, gets angry about little things, has been feeling depressed, not tearful daily, has normal concentration, is feeling apathetic with lack of energy ... insomnia". A diagnosis of anxiety was made.[115] In his testimony Dr Latif said the worker attributed this to his compensation problems. He was prescribed Effexor to treat his anxiety.
3. On 15 January 2008, Dr Latif noted family and social stressors and financial problems though the worker was feeling "much better". He still lacked energy. An assessment of "depression improving" was made. On 11 February 2008, Dr Latif concluded there had been an improvement in his mental state. However the worker still had ongoing pain. That is irrespective of whether it was recorded by Dr Latif in his clinical notes.[116] It was recorded by Dr Griffin, the worker's surgeon, on 6 February 2008. The worker underwent a right ulnar nerve compression release on 7 April 2008. Post-operatively Dr Griffin recorded that the worker was, "pushing the boundaries too much".[117] It is relevant to note the worker suffered a further injury on 11 March 2008 when he was struck by a vehicle at work.
4. An arthroscopy was performed on his right knee by Dr Hermann, orthopaedic surgeon, on 12 June 2008 when scar tissue was removed and a repeat lateral release performed. On the worker's return to work on 4 July 2008 he was directed to do work that was too difficult for him to cope with, resulting in complaint and reassignment.[118]
5. On 21 July 2008 Dr Latif recorded difficulties at work resulting in a flare-up of the worker's condition.[119] Dr Latif noted the worker felt much better while he took the Effexor.[120] The notes recorded, "a long discussion re his stress and depression as well as advised to continue with Effexor". Dr Latif informed the Tribunal about this attendance in the following terms:[121]

"... It was just basically just that he's angry, because he told me that he's been on this WorkCover since injury - he had this back in September 2007 and its always like he was always asking when he's going to get better, whether he'd end up in having knee replacements, and just basically discussion was all the frustration about his physical conditions."

As indicated above[122] this attendance was regarded as significant by His Honour.

1. Dr Latif denied the anxiety and depression was linked by the worker to his deteriorating domestic situation but he agreed that his anxiety may have involved, "a combination of everything at that time". Dr Latif said:[123]

"So do you agree with me that he did not suggest on that occasion that he was experiencing any frustration, anxiety or depression?---I mean, I can't say that if the patient is in pain and asking for the referral for further opinion from the orthopaedic and he's not anxious. Obviously he was anxious and worried about his pain, that's why he came to me and asked for this referral. No, I did not record about any depression because we did not discuss that thing ... he didn't mention that he was depressed. But that's what I gathered from my - even if I read these notes now, I will still say that he was either anxious because of the pain, and that's why he was asking for further opinion from the orthopaedic surgeon."

1. It is to be noted the worker was continuing to take Effexor to treat his anxiety. In July 2008 it was recorded at 75mg[124] but ultimately prescribed at 150mg prior to the events of May 2009.[125] Dr Latif thought it may indeed have contained the anxiety manifesting itself. He insisted that during 2008 the worker suffered from a psychological disability though the prescribed medical certificates he issued did not state on them any psychological sequelae.[126]
2. The entry on the doctor's notes of 6 March 2009 records an increase in Lyrica medication from 75mg to 150mg.[127] Lyrica is a painkiller.[128] The problem was his elbow pain. An entry of 8 May 2009 stated he was feeling better but the stability of his injuries and pain was on and off.[129] The worker's next attendance was on 12 May 2009 when his condition had regressed markedly though he gave a misleading history to the doctor about being a victim of false accusations of sexual harassment. One may infer from the fact he was prescribed Panadeine Forte tablets, that he was suffering some pain at the time. Dr Latif related his psychological regression to his work injuries. He was very depressed, more so than on any previous occasion.[130] Dr Latif added:[131]

"And your diagnosis on this occasion was a depression with anxious mood?---I diagnosed him before as well back in January 2008 with this depression."

"... what I'm trying to say on this one, he has been suffering from depression and anxiety but he had got - obviously worsened because of these specific allegations."

1. The contention that the psychological problem only emerged following the stand-down also seems at odds with the report of Dr Latif of 6 March 2009 to the worker's lawyers.[133] That was written before the stand-down. It recorded a history of chronic pain particularly in his left shoulder. It also confirmed that as at March 2009 he was unable to do general household duties. These were underlying factors of Dr Latif's explanation for the anxiety.
2. The worker was seen for management by Mr Roger Wright, psychologist, on 9 June 2009,[134] Dr R P Nagesh, psychiatrist, on 13 July 2009[135] and Dr G D Wright, occupational physician and medical pain specialist, on 31 August 2009.[136] The worker saw Dr Latif on 18 June 2009. The notes recorded that he was, "now having relationship issues, son's custody issues ... feeling frustrated and angry". By 20 August 2009, it was Dr Latif's view that the psychiatric dimension was preventing him returning to work.[137] By 26 October 2009 the physical condition was improving with less pain.[138] He was not fit for any work throughout the year 2010.[139] By March 2011 Dr Latif thought him fit enough to do modified work for an employer, "other than Holden's".

1. These are detailed in the Outline of Submissions and in the oral argument. The appellant says the reasoning regarding a psychiatric sequelae to the physical injuries show inconsistent findings. Further that the ultimate finding that, "work related stressors arising from pain and disability were the substantial cause of the condition diagnosed in January 2008" was not a finding open on the evidence or explained. Moreover in his approach to the reliability of the evidence of the worker the learned Judge inadequately directed himself. The essence of the latter was the worker was demonstrated to have been a liar yet the learned Judge made findings on occasions reliant upon his singular evidence. In particular in this regard His Honour had failed to properly consider the worker's motivation. His motive was to press his claim for compensation and say whatever it took to that end.[140]
2. The exempt employer contended the finding by His Honour of a psychiatric sequelae pre-dating the stand-down in May was mere speculation.[141] No reasoning was provided connecting the psychiatric presentation post stand-down to the psychiatric condition, if any, pre stand-down.[142] Lastly it was contended the worker's history to Dr Latif on 12 May 2009 was clearly contrived and the reasons failed to address how the worker could have genuinely understood his anxiety a continuum of the pre stand-down anxiety. This was a necessary result given the worker's propensity to lie, as well as the evidence of Dr Ewer as to the importance of the chronology of reporting of matters of history at consultation on 12 May 2009 and the evidence of Dr Ewer concerning the significance of the worker's presentation with emotional symptoms both in January 2008 and January 2009.

Whether alleged first category errors raise a question of law

1. As was acknowledged, this Full Tribunal's jurisdiction is limited to questions of law.[143] Whether the contentions raise questions of law depends upon what was in issue between the parties and how the respective cases were advanced. For instance that determines the adequacy of the reasons given. The worker's case was of pre-existing psychiatric disability magnified by the stand-down event. The evidence lead in that regard was of the worker as to his symptoms and feelings at the relevant times. Also the evidence of Dr Latif of clinical signs observed and recorded. These started from January 2008. They were then continuous up to the stand-down.[144] Moreover the evidence that the condition Dr Latif treated after the stand-down was a deteriorated form of the same. To say there was no evidence upon which His Honour's finding could be based is simply wrong. The details of that evidence are as set out and need no repeating.
2. It is important to maintain the distinction between findings of primary fact and the drawing of inferences from facts. In the process the learned Judge used both processes to reach his ultimate findings but neither constitute questions of law for present purposes. The exempt employer's submissions that the findings were speculation are wrong.[145] Moreover the central theme of the exempt employer's argument, namely the inference it said necessarily followed from the sequence of events, did not constrain His Honour's findings nor raise a question of law. In Skinner v Frappell[146] Basten JA stated the position as follows:

"... the case for the appellant was mounted upon a more general proposition that the inference to be drawn from a chain of uncontested (and facially neutral) facts rendered the first respondent's evidence glaringly improbable. There is little doubt that a challenge of this kind faces a high hurdle. That inferences can be drawn from a sequence of events in the absence of, or even contrary to, the assertions of the principal protagonist in the events is illustrated by many criminal cases based on circumstantial evidence. ... they [do not] provide a basis for rejecting the testimony of the first respondent, found to be credible by the trial judge."

1. The ultimate question in this context is one of causation. Causation is a question of fact to be answered by reference to common sense and experience.[147] Here it was undeniable the worker was being medicated for anxiety and depression with the drug Effexor from January 2008. It was not only open but highly plausible that his chronic pain was contributing to this mental state. That pain was caused by his work injuries. The anxiety and depression he exhibited following the standdown was, in Dr Latif's clinical judgment, the same condition observed before the stand-down save presenting in a far more acute form. Dr Latif's clinical assessment in this regard was admissible. It was based on his observation and his capability as a physician.[148] Whether that conclusion on causation was inevitable or not, it belies the fact that no question of law is raised thereby.
2. The question of credit was essentially for the learned Judge. This Tribunal would in any event recognise the principles of appellate restraint in such matters.[149] Yet while the authorities stress the need for conclusions reached by rationality and logic rather than demeanour they also recognise a judge cannot in his or her reasons expound all of the considerations that influence a decision to prefer or reject the testimony of a witness.[150]
3. In His Honour's approach to evaluating testimony, the role of demeanour appears to have been minor. A judge is not required to state that regard has been had to consistency, plausibility and corroboration among other things. These can be taken as said.[151] However the specific contention of the exempt employer that the learned Judge failed to have due consideration to the worker's motives in reaching his findings on the worker's credit is simply wrong.[152] The learned Judge expressly stated that the motivation of each witness to give false and misleading evidence was borne in mind by him.[153] Moreover the exempt employer's argument is suggestive of the contention, itself erroneous, that if the worker was shown to have told a lie then he must be disbelieved in all things. His Honour approached the matter, rather and correctly, by considering each matter separately. In respect to each he asked the question whether the evidence should be accepted or was reliable. There can be no doubt that when a witness lies it makes the task more difficult as the court must treat with appropriate caution any other evidence from that witness. But it does not result ipso facto in all other evidence being rejected.[154]
4. The adequacy of reasons depends upon the circumstances of each case.[155] The reasons must be coherent, intelligent and comprehensive. They must also be sufficiently adequate to allow the appeal court to perform its function and they must be such that justice is seen to be done. Here there was no difficulty in ascertaining the reasoning upon which the decision was based. All conclusions and results were treated and explained in detail. It is apt to relate the observation of Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others:[156]

"... These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified."

This trial was a very long and protracted one. In our conclusion no question of law was established in this category of the appeal.

1. This concerned the construction of s30A of the Act. As such it raises a question of law. The issue arises from the learned Judge's conclusion on the basis of the decision of this Tribunal in Arrowcrest Group Pty Ltd v Nguyen.[157] His Honour ruled the antecedent physical origin of the condition in respect to which the psychological condition was a sequelae precluded the disentitlements in s 30A. The exempt employer advanced its argument on the basis that the emotional morbid process was not secondary to the physical injuries. Rather it was secondary to the standdown and the subsequent investigation.[158]
2. To the degree the complaint of the exempt employer was limited to this aspect it would remain a question of fact not raising matters of law. However the argument was advanced on a contention that the views expressed in Nguyen were qualified. Particularly so when the worker claimed a fresh injury in his Notice of Claim.[159] This argument is nuanced in the following way. It is contended His Honour concluded the rule excluded s 30A where there was any link between the compensable organic disability and any subsequent psychological or psychiatric symptoms irregardless that the aggravating event was in effect a "novus actus" and totally unrelated to some physical or psychiatric progression of the original injury. Such a contention requires an examination of Nguyen.
3. In Nguyen the worker suffered injury to his low back and left leg. Subsequently the worker developed a severe depression and abnormal illness behaviour and this was found to be a sequel of the physical injury. The combined effect made the worker totally incapacitated. The issue then became whether s 30A applied as the employment, so it was argued, was not a substantial cause of the psychiatric disability. The learned Trial Judge concluded the psychiatric condition was, "merely one of the steps in the causal chain to establish a work caused incapacity. In those circumstances he did not have and has not alleged, a disability 'consisting of an illness or disorder of the mind' and therefore s 30A has no relevance to his claim".
4. The majority, with whom the minority agreed, found that in those circumstances s 30A did not apply. They concluded[160] that it was limited in its operation to cases that fell squarely within its ambit, that being cases that exclusively involved illnesses or disorders of the mind.
5. Having adopted that reasoning the minority opinion provided some further reasons for the result. Those reasons proceeded on the basis that the physical injury was partially responsible for the psychiatric condition. The sum effect of the morbid processes left the worker totally incapacitated. The minority decision focused on the words, "a disability consisting of an illness or disorder of the mind". "Consisting of" in that context meant constituted by. The provision was not operative where the disability was constituted by more than an illness or disorder of the mind.
6. As to the Notice of Claim, from the outset of the trial and on appeal the worker made clear his case was a physical injury with psychiatric sequelae which deteriorated as a result of the stand-down circumstances. It was never the worker's case that there was a separate injury. In other words there was an unbroken chain of causation.[161] Here the judgment makes clear the worker developed a complex of physical and mental effects and the mental effect was worsened by the events which occurred on Friday 8 May 2009. His Honour was right to adjudge that in the circumstances as consisting of more than an illness or disorder of the mind given the perpetrator on an ongoing basis of the mental condition was the physical injury. It was correct to see that as one injury rather than, as contended by the exempt employer, two separate injuries.[162] Moreover, and for the same reasons explained above, we reject the contention that this part of the judgment[163] exhibited error from inadequate reasoning.[164]

1. This challenged the finding of total incapacity from 24 August 2009 to 31 January 2010 on the basis of the evidence of Dr Wright. It was contended Dr Wright's assumptions were not established. This presumably concerned the inadmissibility of an opinion unless the assumptions upon which it is based are proved.[165] Otherwise no question of law would be involved.
2. As indicated Dr Wright saw the worker on 31 August 2009.[166] The worker's three physical injuries were confirmed.[167] His ability to manage the effects of those injuries was, in Dr Wright's opinion, significantly impeded by his nature. He had an unrealistic approach to recovery and engaged in unrealistic expectations of capacity that indeed perpetuated the problem.[168] The learned Judge accepted this view and made implied reference to a similar conclusion by other doctors involved with the worker's treatment.[169] In light of such acceptance of the psychological difficulties impeding the worker's physical recovery he preferred the opinion of Dr Wright as to the time it would have taken for the worker to recover left shoulder function.[170] This meant the worker would not have been fit for work until January 2010 on the basis of the physical disabilities alone. His mental morbidity would have stretched this out until 31 December 2010.
3. The error cited by the exempt employer was that Dr Wright needed to be assessed in the context of the exempt employer's case as to the worker's dishonesty. Dr Wright had based his assumptions on the worker relating to him frustrations associated with working within his limits. Those opinions, so it was contended, did not take account of the discredit of the worker. Nor did it have due regard to the stand-down, the possibility of relationship issues and a complete history of his emotional problems. This argument somewhat repeats the criticism of His Honour's approach to the use to be made of the worker's evidence detailed earlier.[171]
4. It was never disputed the worker had the physical injuries he claimed. They were of significance necessitating various surgical interventions. There was evidence that the worker had clear difficulty in coping with his injuries in the context of rehabilitation and an inability to manage his recuperative phase. There was also evidence that he suffered anxiety and depression though Dr Wright conceded he was not a psychiatrist. The major contest at trial on the issue appears to have been between Dr Nimon who contended a period of six weeks total incapacity and Dr Wright contending incapacity until the end of January 2010. A reading of the transcript relied on by the exempt employer[172] does not indicate any reversal of opinion by Dr Wright that would invalidate the opinion he gave. The doctor's general view remained the same. The findings were open. The evidence was admissible. No question of law arises.

1. It was generally conceded this gave rise to a question of law. The legislative provisions and WorkCover Guidelines are as follows:

(1) This section sets out a scheme for assessing the degree of impairment that applies to a compensable injury that results in permanent impairment.

(2) An assessment-

• (a) must be made in accordance with the WorkCover Guidelines; and
• (b) must be made by a legally qualified medical practitioner who holds a current accreditation issued by the Corporation for the purposes of this section.

1. The WorkCover Guidelines for the Evaluation of Permanent Impairment appears in Appendix I to the South Australian Government Gazette of 26 March 2009.[173] They are intended to ensure an objective, fair and consistent method for evaluating a level of permanent impairment. They are based on the Guides to the Evaluation of Permanent Impairment, 5th Edition published by the American Medical Association ("AMA 5") and WorkCover Guide for the Evaluation of Permanent Impairment, 3rd Edition, published by WorkCover NSW ("WorkCover NSW Guides"). AMA 5 is adopted in most cases.
2. The Guidelines direct that the appropriately qualified medical practitioners evaluate permanent impairment by clinical assessment on the day of assessment and to make the required assessment in accordance with diagnostic and other objective criteria as detailed in the WorkCover Guidelines. These state:

"1.15 The WorkCover Guidelines are meant to assist legally qualified medical practitioners who are accredited with the Corporation to assess levels of permanent impairment. They are not meant to provide a 'recipe approach' to the assessment of permanent impairment. Legally qualified medical practitioners (assessors) are required to exercise their clinical judgment to determine whether the compensable disability has resulted in an impairment and whether the impairment is permanent. The degree of permanent impairment that results from a compensable disability must be determined using the tables, graphs and methodology in the WorkCover Guidelines and AMA 5."

"AMA 5, p 19, states: 'Consistency tests are designed to ensure reproductability and greater accuracy. These measurements, such as one that checks the individual's range of ... motion are good but imperfect indicators of people's efforts. The physician must use the entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the physician may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing'. This paragraph applies to inconsistent presentation only. The requirements stated in paragraph 1.15 apply to all assessments."

1. Section 43(11) provides for the Guidelines to provide a worker's degree of impairment to be rounded up or down. This is the authority for the following:

1.61 Occasionally the methods of the WorkCover Guidelines will result in an impairment which is not a whole number (e.g. an assessment of a peripheral nerve impairment in the upper extremity). All such values must be rounded to the nearest whole number before moving from one level of impairment to the next (e.g. from finger impairment to hand impairment, or from hand impairment to upper extremity impairment) or from a regional impairment to WPI. Figures should also be rounded before using the Combined Values Chart. This will ensure that the final % WPI will always be a whole number. The usual mathematical convention is followed where rounding occurs - values of 0.4 or less are rounded down to the nearest whole number and values of 0.5 and above are rounded up to the next whole number."

1. The Guidelines qualify the range of movement approach[174] to a functional approach, which was the basis of the evaluation in the subject claim for the worker's right knee. That the functional approach is the only relevant method is common ground.[175]

3.16 Although range of motion (ROM) (AMA5 Section 17.2f, pp 553-538) appears to be a suitable method for evaluating impairment, it may be subject to variation because of pain during motion at different times of examination, possible lack of cooperation by the person being assessed and inconsistency. If there is such inconsistency then ROM cannot be used as a valid parameter of impairment evaluation."

1. The exempt employer complained that contrary to the Guidelines, His Honour employed different impairment ratings from different days.[176] Further that he expressed the view an assessor was permitted to modify an impairment rating if observation or results appeared not to accord with the medical evidence. This allowed, erroneously, an appeal to clinical evaluation. Correctly understood these were always subject to the specific results of the measures taken. Lastly the process proceeded on an assumption of the credibility of the worker, a premise that was not justified in the circumstances.[177]
2. In particular the exempt employer challenged the right knee assessment and the use by His Honour of a "fairness" approach.[178] It referred to s 17.2f of AMA 5. That reads as follows:

Lower extremity impairment can be evaluated by assessing the range of motion of its joints, recognizing that pain and motivation may affect the measurements. If it is clear to the evaluator that a restricted range of motion has an organic basis, three measurements should be obtained and the greatest range measured should be used. If multiple evaluations exist, and there is inconsistency of a rating class between the findings of two observers, or in the findings on separate occasions by the same observer, the results are considered invalid. Figures 17-1 to 17-6 illustrate one method of measuring range of motion in the lower extremity. The ranges listed in Tables 17-9 through 17-14 are examples of mild, moderate, and severe impairments and are to be used as guides. Range-of-motion restrictions in multiple directions do increase the impairment. Add range-of-motion impairments for a single joint to determine the total joint range-of-motion impairments. For example, hip motion is evaluated and any impairment added in each of the six principal directions of motion."

Deformity measured by femoral-tibial angle; 3º to 10º valgus is considered normal

Dr Jones stated flexion of less than 110º was required in order to attract a relevant, "mild 4% result". Dr Jones measured a limitation on right knee flexion of 110º flexion and then attributing 8% WPI. The exempt employer contended the figure should have been 0.

1. This latter conclusion arose from the following reasoning:[179]

"Dr Jones observed no signs of atrophy or arthritis of the right knee, nor any subluxation of the patella giving rise to a diagnosis based estimate. He considered that the only rateable impairment arose from a limitation on right knee flexion to 110º flexion which he considered should give rise to 8% WPI. Dr Jones also said that he noted objective signs of flexion contracture of 10º, signs not noted by either of the other assessors although Dr Jones suggested they should have been apparent. In any event, he does not appear to have suggested that this feature on its own produced a rateable impairment over and above the 8% WPI assessed on the basis of the measured limitation on flexion. He considered that no rating was appropriate for scarring.

In my view, the assessment criteria with respect to the lower extremity do not prevent the application of a limited discretion. Section 17.2f of AMA5 relating to the Method of Assessment by measurement of range of motion, recognises that pain and motivation may affect the measurements, and importantly, that the ranges listed in Table 17-9 to 17-14, which include Table 17-10 with respect to knee impairment, are 'examples of mild, moderate and severe impairments and are to be used as guides'. I emphasise the word 'guides'. In my view the approach taken by Dr Jones in accepting that 110º flexion in the circumstances fell within the mild impairment range thus producing a WPI of 8% was permissible."

1. The Intervenor made submissions in respect to the assessment of the right knee only. It rejected subjective assessments as appropriate in the context of the Guidelines. In short a measurement which fell outside a range specified cannot provide any basis for treating it as within the range. Further that if the evaluator regarded the range as restricted by temporary symptoms, three measurements should be obtained and the greatest used. Fairness had no application in AMA 5 in the circumstances.[180] The exempt employer adopted the Intervenor's argument.[181]
2. The Intervenor's argument was made in the context of an appreciation of the scheme created for table assessment and the use of AMA 5. That is an evident preference for consistency and objectivity over subjective and evaluative approaches. The corollary of a scheme that elevates the importance of consistency and objectivity is a necessary degree of arbitrariness.[182] Of course that begged the question whether that is the central objective. The Intervenor pointed to indications of an arbitrary scheme indicated in other provisions such as the absence of entitlement where the degree of impairment is less than 5%.[183]
3. The Intervenor in particular relied on the Guidelines paragraph 1.15. It submitted the doctor's clinical judgment was limited to whether there was an impairment and whether it was permanent. The degree of permanent impairment that results however had to be determined according to the Guidelines methodology provided.[184] Though AMA 5 2.5(c) reproduced in Clause 1.58 of the Guidelines referred to clinical skill and judgment when assessing, this was governed by paragraph 1.15. Moreover Clause 1.58 was also limited to inconsistent presentations.[185]
4. The tension created is well highlighted by those passages read to us by the Intervenor from the evidence of Dr Jones:[186]

"MR ROSSI: Yes, but isn't it the case, doctor, that one requires flexion of less than 110 degrees in order to attract a mild 4 per cent? Isn't that table 17.10?

DR JONES: That's what the guides say but the problem in a clinical sense is that it's often very difficult to accurately measure the range of movement in the knee, if, in particular, for example, there is a large thigh, you can't accurately identify the axis of the femur. ...

MR ROSSI: But just to be clear about this, when you performed the examination with the goniometer - - -?

MR ROSSI: - - - the result that you obtained was 110 degrees?

MR ROSSI: You accept, don't you, that on a literal construction of the AMA Guides and table 17.10 that would not entitle an allowance of 4 per cent whole person impairment?

MR ROSSI: Does it come down to this, doctor, that you consider in this case the application of the guidelines would achieve an unfair result?

DR JONES: Yes. He had a significant restriction of flexion, but I agree I recorded it as 110."

1. The worker contended in support of the learned Judge's approach. He contended contrary to the Intervenor's submissions the assessor retained the right to vary the outcome using clinical judgment.[187] There was a further step after the strict arbitrary conclusion and that was to use those conclusions as a "guidance" to settle on whether the disability fell into the category of mild or moderate. He conceded on the basis of a measurement of 110° flexion that Dr Jones was in error in fixing a figure of 8%. However he argued that in finding flexion contracture at 10° then the result of 8% was valid. While His Honour said nothing of flexion contraction there must be some imputation of the method by which he reached the right result.
2. The Intervenor's reply to the flexion contracture contention of the worker based itself on the fact that His Honour did not base his findings that way.[188] Rather what he did say was how the matter should be judged.[189] It was common ground however that in using Table 17-10 no graduation existed between the three specified levels.[190] The Intervenor contended this was further proof of the arbitrary approach.
3. The notion of "guidelines" is in ordinary language divergent from the idea of a definite measure. In Clause 17.2f of AMA 5 it states that the ranges listed in Table 17-9 through 17-14 are examples of mild, moderate, and severe impairments and are to be used as guides. Despite that the Intervenor and the exempt employer argued that in truth it was definite.[191] The matter was determined by the actual words and particularly by the guiding indication of Clause 1.15. Such an approach was consistent with the authority of Smoker v Pharmacy Restructuring Authority and Others [192] where the use of "guidelines" did not mean the provisions could in any way be circumvented nor any measure of "fairness" could operate. Therefore the learned Judge erred in applying the provision and the error was an error of law.
4. The Intervenor made no submissions as to what this Bench should do given the flexion contracture measure.[193] For his part, in the alternative the worker contended the matter should be sent back to His Honour for reconsideration in the light of these reasons.[194] In our conclusion the matter should be sent back for further consideration. We will hear the parties as to the nature of the Order appropriate in the circumstances.[195]
5. The worker joined issue with the contentions as to credit by the exempt employer. This argument relates to each of the assessments and not merely the right knee. The contention was that the doctors in their clinical exercise were happy that they had accurate results to reach a dependable conclusion.[196] We agree that whatever else, for the reasons we have already given, this is not a question of law. The contentions of the exempt employer in this regard are rejected.

1. As we understand the worker's position, while he raised some difficulties he saw with the reasons for decision and conclusions which he addressed in Contentions 2.1 to 2.5 those were only advanced if the exempt employer was successful on its appeal in respect to findings and the issue arose of whether the case should go back for re-determination.[197] Given our conclusion on the appeal there is no need to deal with the Alternative Contentions.

1. Grounds 1 and 2 concern the correct approach to be taken to s 35A of the Act. As such the grounds concern a question of law. As indicated this was dealt with by His Honour in his reasons.[198] The first challenge advanced was that the Tribunal did not have jurisdiction to make a determination as it did in the exercise of its powers under s 94C of the Act.[199] Accepting the worker was partially incapacitated from 1 January 2011, the exempt employer's failure to make a determination pursuant to s 35A(4)(b) meant the Tribunal could not make the determination.[200] Even assuming for the sake of argument a breach of mutuality removed the exempt employer's obligation to provide suitable employment to the worker, the worker argued it still did not relieve the exempt employer here from the obligation under subsection (4)(b) of identifying in the initial determination what the worker could earn from time to time in employment.
2. The exempt employer's argument on jurisdiction was that the dispute referred into the Tribunal in this case involved whether the worker was entitled to weekly payments and that in turn involved the anterior question of whether the worker had an incapacity for work in respect of a compensable disability. Also referred was whether, during the period of any such incapacity, there was a difference between the worker's notional weekly earnings and his current weekly earnings. There was no dispute, so it was argued, as to the weekly earnings the worker could earn from time to time in employment in the worker's pre-disability employ or in "suitable employ" the worker was capable at various times after he became incapacitated of performing. Thus there was no determination of those matters by the exempt employer.[201] In short the Tribunal's jurisdiction to make the subject determination was not predicated upon the exempt employer making an equivalent determination.
3. The Intervenor made submissions on this matter also arguing in favour of the Tribunal's jurisdiction. In short it argued that the dispute included the quantification of any entitlement. The failure of the exempt employer to make the determination under s 35A(4)(b) could not inhibit the jurisdiction to determine that question. To hold otherwise would elevate form over substance.[202]
4. The Intervenor referred to the decision by His Honour on the preliminary issue[203] and his categorisation of the determination under dispute as "a decision" for the purposes of s 53.[204] This was in contrast to a discontinuance in s 36. That decision was appealed and the appeal was rejected.[205] The Intervenor additionally relied upon the decisions of Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snackfoods)[206] and Hornhardt v WorkCover Corporation/HIH Workers Compensation (SA) Ltd (NTP Pty Ltd).[207]
5. In Cristea the claim for compensation was rejected on the basis that the injury was not compensable. On review it was found to be compensable and the Review Officer went on to assess the entitlement. The issue was whether the Review Officer exceeded the scope of the review. The debate was resolved by King CJ in the following terms:[208]

"The claim envisaged by s 52 is a claim for compensation. It is not a claim to have a disability accepted as compensable. A claim for compensation made pursuant to s 52 must be for one or more of the entitlements to compensation conferred by the Act. ..."

1. In Hornhardt Gilchrist DP concluded in line with Cristea in the following terms:[209]

"... Thus, the Tribunal is not constrained by the grounds upon which the determination was made, nor is it limited in making its decision to the facts and evidence available at the time when the disputed determination was made. Subject to compliance with the rules of natural justice and subject to all relevant parties being given an ample opportunity to meet their opponent's case, the Tribunal is entitled to make such determination as is appropriate in the circumstances, having regard to the nature of the issues in dispute, the evidence presented to it, and the law as it is at the time of making its determination."

1. The exempt employer also referred to Cristea in support of its contention the Tribunal had jurisdiction. It adopted the arguments put forward by the Intervenor.[210] It referred to the approach it said was indicated by the decision of WorkCover Corporation v Davey[211] and Hornhardt. It stressed that the case it advanced at trial was the exempt employer provided work in the LOC without loss of wages previously earned and that context included s 35A(4)(b). That was well understood by the worker at trial. That was why there was no actual exercise undertaken that might separately deal with subsection (4)(b).[212]
2. The scheme of the Act contemplates a number of stages. Where a worker suffers a compensable injury and gives notice as required, a claim should be lodged under s 52(1). On receipt of the claim and following investigation the Corporation, or in this case the exempt employer, determines the claim under s 53(4). Subject to a provision enabling re-determination of the claim under s 53(7) if that determination is disputed the worker may invoke the jurisdiction of the Tribunal by a Notice of Dispute under s 90. Section 89A specifies the decisions that are reviewable and these include a decision on a claim for compensation.
3. The term "disputed decision" thereafter appears from s 91 onwards. The disputed decision is reconsidered whereupon it must be confirmed or varied under s 91(3). If dispute continues then the Registrar refers "the dispute" for conciliation. And if that fails the Conciliator must, "refer the dispute into the Tribunal for judicial determination" pursuant to s 92D. Finally pursuant to s 94C the Tribunal must decide the dispute without regard to decisions taken in earlier proceedings. The only other provision we regard as relevant is s 88DA which enables the Tribunal with the consent of the parties to proceedings to, "enlarge the scope of the proceedings to include questions that are not presently at issue in the proceedings".
4. The provisions specific to the disputed jurisdiction are as follows:

(1) Subject to this Act, a worker is, in respect of a particular compensable injury, entitled to weekly payments while incapacitated for work ...

(b) for any period when the worker has a current work capacity - the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.

(4) For the purposes of this section, but subject to subsection (5), the designated weekly earnings of a worker will be taken to be-

(a) the current weekly earnings of the worker in employment or self-employment; or

(b) the weekly earnings that the Corporation determines that the worker could earn from time to time (including, but not limited to, the amount of any current weekly earnings) in employment, whether in the worker's employment previous to the relevant injury or in suitable employment, that the Corporation determines the worker is capable of performing despite the injury,

whichever is the greater, but not to include a prescribed benefit under subsection (6).

(5) Subsection (4)(b) will not apply to a worker who has a current work capacity during any period or periods during which the worker is incapacitated for work and in which either of the following circumstances apply:

(a) the employer has failed to provide the worker with suitable employment and the worker is making every reasonable effort to return to work in suitable employment;

1. It is inherent in the disputed decision that the worker sought not only an acceptance of his injury as compensable but also the entitlement to compensation that followed. That was the actual scope of his claim and when it was rejected that was the actual scope of the disputed decision. That included any issue of its quantification. It was a matter over which the Tribunal had jurisdiction. To interpret the statute otherwise would be to regard the provisions in an artificial and disconnected way.[213] Provisions conferring jurisdiction are not to be construed in that way.[214]

1. It was generally agreed this concerned a question of law. It was argued by the worker that His Honour erred in consideration of the suitable employment the exempt employer might have provided the worker but for the worker's breach of mutuality. He argued that the legislation expressly provides the extent of any mutuality principle in subsection (5) and that the only factors were to determine whether the worker was making every reasonable effort to return to work in suitable employment where the exempt employer had failed to provide the worker with suitable employment.[215] Those matters in turn were indicated by s 35(6) and (7).[216] The express matters to be determined overrode the general imputation otherwise of mutuality.[217] The exempt employer joined issue with this. The Intervenor also contended the implication of mutuality continues[218] although with some slight variation to His Honour's approach.
2. His Honour explained in some detail his reasons for concluding mutuality was to be implied in the provisions. He concluded the cases confirmed that from the stage in the evolution in workers' compensation when an obligation was imposed by the legislation on the employer to provide suitable employment to the injured worker, an implication had to be made that the worker would be ready, willing and able to respond to the offer.[219] His Honour stated:[220]

"Thus, to gain the benefit of a potential reduction in its ongoing income maintenance liability to a partially incapacitated worker by making a determination under s 35A(4)(b), an employer must in fact provide the worker with suitable employment, otherwise s 35A(5) will not allow any determination under s 35A(4)(b) to have any effect. Accordingly it must follow, from the objectives of the Act and the context of the entitlement provisions, that the worker cannot claim the benefit of a failure by the employer to make a determination under s 35A(4)(b), where suitable employment has been provided, or would have been provided but for a breach of mutuality, unless the worker demonstrates the necessary degree of cooperation on his side by being ready and willing to take up that suitable employment. The underlying element of mutuality remains, although in a less transparent form on the face of the current provisions compared with earlier versions. Were the position that for which the worker contends, the failure of the employer to make the determination would entitle the worker to a level of compensation to which he was not entitled given his breach of mutuality, and would frustrate the purposes of the Act."

1. We agree with the learned Judge's conclusion that the provisions continue the expectation of mutuality. Though there have been legislative amendments expanding the various rights and obligations, that element central to the employment relationship must be assumed. This underlies the reasoning of Kourakis J, as he then was, in Seal v Transfield Services (Australia) Pty Ltd.[221] The worker's submissions in this regard are rejected.

1. This challenge is to the findings on suitability of the LOC duties.[222] It is contended the minimum required of the trier of fact was a clear identification of the duties being performed by the worker when stood down together with the physical requirements of those duties, the limitations imposed on the worker by his compensable disabilities and then some form of inductive reasoning to conclude whether or not the duties were suitable. It was argued that because the worker was performing duties in the LOC when stood down was not proof that they were suitable.[223] Moreover relying on an exhibit witness statement of Ms Millswood[224] demonstrated, so it was said, a requirement of a full range of motion of the arms in the performance of duties. This was beyond the worker's ability. Added to which the evidence of Mr Clifford,[225] the relevant rehabilitation advisor, indicated the duties were unsuitable if the worker was lifting more than 10kg. It must be, and was, acknowledged this was qualified by the statement that if there was a problem there was a work group leader in the LOC to attend to that.
2. The fact finding by His Honour proceeded without a blanket acceptance at face value of the worker's evidence of the extent of his difficulties in the LOC. That of course was appropriate given the overview with respect to the worker's credit. His Honour then found it likely that the worker would have complained to Mr Clifford or to Dr Latif to a greater extent and specific to the LOC if the problems he experienced before the stand-down were as great as he now asserted.[226] This was concrete evidence of suitability as opposed to the more abstract approach suggested in the argument advanced by the worker. It gave an appropriate basis for His Honour's conclusion. It raises no question of law. More so that it was part of the terms of his employment in the LOC that the duties required of him were to be only work that he could do and had to be organised in a flexible nature to enable this to occur.[227]
3. The further argument was advanced that the preparedness of the exempt employer to provide suitable duties was not the same as the duties provided prior to stand-down.[228] For that reason the preparedness of the exempt employer was not to be taken into account for the purposes of s 35A. Whether that is so in our conclusion is resolved by His Honour's finding to the effect that the worker exaggerated his problem with those duties. That being the case in the given circumstances the offer and the suitability were one and the same.
4. The final proposition put by the worker was that the duties performed by the worker in the LOC were not performed pursuant to a contract of service. Given the definition of "suitable employment" and "employment" in s 3 what was occurring was outside that notion and indeed an arrangement affected under a rehabilitation and return to work provision.[229] Authority for this last proposition was said to be found in Last v WorkCover Corporation.[230]
5. Much of the terms and conditions of the engagement in the LOC would have assumed terms as would exist in the contract of employment. For instance the worker would obey all reasonable directions of his employer in the performance of his work and so forth. But more to the point Last's case involved a worker who sustained injury and incapacity and provided services during his recuperation to the RSPCA on a gratuitous basis. He received weekly income maintenance payments from the Corporation but nothing from the RSPCA. He was injured in the course of his service to the RSPCA and weekly payments were not made as he was being paid nothing by the RSPCA nor was there "employment". Last is not authority for the point contended. A more significant point exists in that this argument was not advanced at trial.[231] In our view the worker was to this extent bound by the case he advanced below.[232] This was a stance we regard as rightly raised by the exempt employer before us.[233]

1. In our conclusion the appeal and the cross-appeal should stand dismissed save in respect to the appeal regarding the assessment of the right knee. That assessment must be set aside. We will refer that matter back for rehearing. We will hear counsel as to the specific Order to that effect.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Section 123A Workers Rehabilitation and Compensation Act 1986.

[4] The LOC is described in judgment para [48] onwards.

[5] Whether or not an actual residual entitlement existed depended on further determination.

[7] Judgment paras [396], [408], appeal tr pp 16-18, 44.

[58] Judgment paras [342], [343], [344], [345].

[66] Judgment paras [376] - [377], [382].

[68] Judgment paras [386], [387], [388], [390], [394].

[75] [2000] SAWCT 121

[87] (2010) 108 SASR 312.

[90] (1988) 49 SASR 592 at 599.

[102] Judgment paras [553], [558], [559]

[105] Outline of Submissions of the Appellant para [2].

[117] See Judgment paras [29] - [32].

[125] AB Vol 4 pp 834, 826, 827. He ceased Effexor in August 2011, AB Vol 4 p 847.

[140] Outline of Submissions of the Appellant para [20].

[141] Outline of Submissions of the Appellant para [22].

[142] Outline of Submissions of the Appellant para [23].

[143] S 86(1), South Australia Fire and Emergency Services Commission v Workers Compensation Tribunal and Another [2009] SASC 213; (2009) 105 SASR 1 at paras [42] - [49].

[146] [2008] NSWCA 296 at para [16].

[147] March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.

[148] Dasreef Pty Ltd v Hawchar [2011] HCA 21 at paras [37], [89].

[149] See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at para [31].

[150] Fox v Percy at para [46], see also Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at para [62].

[151] See Richard Eggleston, "Evidence, Proof and Probability" (1978) Weidenfeld and Nicholson at pp 155, 157.

[154] Louth v Diprose (1992) 175 CLR 631 at 635 per Deane J.

[155] Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391; (2007) 99 SASR 461 at para [20], Devers v Kindilan Society [2010] FCAFC 72; (2010) 269 ALR 404 at para [58].

[156] [1999] HCA 3; (1999) 160 ALR 588 at para [90] followed in Devers v Kindilan Society [2010] FCAFC 72; (2010) 269 ALR 404 at para [51].

[157] [2000] SAWCT 121.

[161] Appeal tr pp 97, 102, Rosmini v Chrysler Australia Limited (1973) 6 SASR 212.

[163] Judgment paras [413], [422].

[165] Dasreef v Hawchar [2011] HCA 21 at para [66].

[176] Whether this contention was advanced before the trial judge was not demonstrated.

[177] Outline of Submissions of the Appellant para [53].

[179] Judgment paras [553], [558].

[180] Outline of Submissions of Intervenor's para [34].

[185] Appeal tr p 73, AMA 5, Chapter 17 at p 537.

[189] Baldwin & Francis Ltd v Patents Appeal Tribunal and Others [1959] AC 663 at 693.

[192] [1994] FCA 1487; (1995) 125 ALR 577

[198] Judgment paras [470] - [503].

[201] Outline of Submissions of the Cross Appellant para [92], Appeal tr p 120.

[202] Outline of Submissions of Intervenor para [9.2].

[203] Roberts v GM Holden Ltd [2010] SAWCT 28

[205] Roberts v GM Holden Ltd [2010] SAWCT 47

[206] [1993] SASC 4356; (1993) 61 SASR 487

[207] [2000] SAWCT 157.

[211] (2011) 110 SASR 173

[214] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49 at para [11].

[215] Submissions of the Cross Appellant paras [81], [82].

[218] Outline of Submissions of Intervenor para [13]

[219] Judgment paras [480] - [492].

[221] (2010) 108 SASR 312 at para [167]. Though this authority concerned the previous provisions, His Honour's reasoning is equally applicable to the current provisions.

[222] Appeal tr p 122, Outline of Submissions of the Cross Appellant para [104].

[226] Judgment paras [460], [461].

[230] [2010] SASC 338.

[232] Jones Lang Lasalle (Vic) Pty Ltd v Korlevski & Ors [2012] VSCA 305 at paras [3] - [7].