1. Given the challenges to the reliability and credibility of the evidence given by Mr Loader, I will address it in some detail.
2. The trial book tendered in evidence contained two affidavits of Mr Loader. The first was sworn on 21 October 2024. The second was sworn on 23 May 2025 and was largely responding to the content of an affidavit of Ms Cheyenne Jubb (Ms Jubb) affirmed on 16 December 2024. Ms Jubb was the Safety and Human Resources Manager of RPA during the period that relevant events occurred.
3. In his first affidavit, Mr Loader referred to matters of background leading to the claimed date of injury of 6 November 2023. He was born in New South Wales on 5 May 1964. After completing his secondary level education, he worked as a cook and then as a builder's labourer before continuing his education. After completing his matriculation, he studied drama at Flinders University. He then transferred to study a Bachelor Degree of Music at the South Australian College of Advanced Education and he also attended the Elder Conservatorium of Music for singing.
4. Mr Loader joined the State Opera of South Australia in 1989 and sang with it until 2001. He subsequently secured a builder's licence and from 1993 until approximately 2000 worked as a builder and building supervisor.
5. On 19 January 2001, Mr Loader was arrested and subsequently convicted of murdering two men over a dispute in relation to the cultivation of cannabis. Those circumstances were relevant to the current proceedings for at least two reasons. Firstly, it was not in dispute during the trial in this Court that Mr Loader lied repeatedly when interviewed by police in relation to its investigation and subsequently in his evidence to the Court in the criminal trial. An issue to be determined by this Court is the approach to addressing the reliability and credibility of the evidence given by Mr Loader to this Court in those circumstances. Secondly, during the subsequent period of incarceration over a period of some 20 years and seven months, Mr Loader experienced at times some symptoms to the right knee and the medical records relating to his attendances upon doctors whilst an inmate and awaiting parole formed the basis of some of the cross-examination of Mr Loader. That evidence was relevant to a consideration of the cases advanced by RPA and the Corporation that Mr Loader had not discharged the legal onus upon him to prove a work injury.[7]
6. In his first affidavit, Mr Loader referred to the steps that he undertook to rehabilitate himself and so as to be able to reintegrate into the community upon his release. This included his efforts to improve his level of education and his obtaining of a forklift licence, white card and learners driving permit to enable him to drive forklifts. He also obtained a first aid certificate.
7. Mr Loader addressed in his affidavit and oral evidence his prior medical history leading to 6 November 2023. He referred to having injured his right knee in early 2010 whilst running in the course of playing basketball. He sought treatment at the Mount Gambier prison and was referred to an orthopaedic surgeon at the Mount Gambier hospital. Medical investigations were undertaken and the right knee injury was treated arthroscopically by Dr Forbes. Mr Loader acknowledged that he continued to experience symptoms to the right knee and he subsequently underwent a further arthroscopic procedure performed by Dr Forbes on 6 February 2012. Mr Loader understood that involved the trimming of some cartilage that had become torn. Whilst the pain had been relieved and Mr Loader maintained an active lifestyle in prison that included playing volleyball, football, soccer, table tennis, badminton and boxing, he presented on 13 March 2018 with swelling of the right knee following a twisting event. In or about June 2022 he noticed some stiffness affecting the right knee. On 28 December 2022 he presented with "(R) knee issues". The knee was investigated by Magnetic Resonance Imaging (MRI) of the right knee which was performed on 6 January 2023. On 7 February 2023 he was seen to review the results of the MRI. Although there was a plan to refer him to a medical officer, there is no evidence that examination took place.
8. As part of the process of reintegration into the community through the mechanism of parole, the Adelaide Pre-Release Centre facilitated Mr Loader's employment with RPA as a machine operator/forklift operator. Mr Loader referred to working "as a full-time employee doing seven 12 hour shifts per fortnight." He added:

My duties in this role involved filling 1.1kg bags of granulated plastic from silos, getting on and off the forklift, lifting the bags of granulated plastic, putting them in place on the back of a truck, driving them to the distribution site and then offloading them.[8]

1. Mr Loader referred to having been offered the role of night supervisor by RPA in May 2023. He deposed to accepting that offer in circumstances of an increase in pay of 45%. After discharging that role for approximately six to seven weeks, he transferred to the role of day shift supervisor. He explained what was involved in that role:

My duties in this role included driving machinery around the plant, operating the sorting machines, operating forklifts, loading and unloading trucks, checking machinery, coordinating electrical contractors and injury management specialists, supervising the day-to-day operations of the plant and reporting on same. While I was performing the supervisor role I had to walk around the plant for significant amounts of time.[9]

1. He referred to overtime being required to be performed in addition to the regular shifts. Mr Loader stated the shifts could vary in length and at times between 12.5 hours to 14.5 hours. As previously, he would work a seven day fortnight.
2. In relation to the circumstances of his claimed work injury, he stated:

On 6 November 2023 I recall that I had a very long and difficult shift at work at Recycling Plastics Australia Pty Ltd. I was doing forklift operation and on this particular day I had to get in and out of the forklift approximately 200 times that day. This involved repetitively climbing up onto a platform to take samples from the bags that had been filled from the silos, having to bag up those samples, tie up the top of the bags, go back down from the platform. As a consequence of all that activity I experienced pain throughout much of my body. I was sore all over and I was experiencing a lot of pain and discomfort.

When I woke up the following day on 7 November 2023 I noticed in particular that I was experiencing pain in my right knee. Over the ensuing days, my right knee swelled up to the point where I couldn't bend my knee. I contacted my doctor, and I rang in sick to my employer. I told them specifically my right knee would not allow me to work.[10]

1. He then addressed the ongoing pain and impairment of function of the right knee that he experienced thereafter. Notwithstanding those circumstances, upon receiving medical advice that he could return to work if he were allocated "light duties", he attended the office of RPA on 15 December 2023. Mr Loader deposed to a feeling of having been treated at that time as an inconvenience. He referred to Ms Jubb as demonstrating a belittling manner as she would ask others in the workplace if there was work that Mr Loader could assist with. Mr Loader referred to performing some administrative tasks but that there was little in that area for him to perform. He referred to suggestions by others that he be placed in the treatment plant which Mr Loader considered to be the dirtiest and most difficult work and he asserted would have been contrary to a successful return to work.
2. Mr Loader referred to an incident leading to Christmas of that year that upset him. He observed Ms Jubb going around the office taking photos of all other staff members and expressing the exercise to be for the purpose of team building but no photo was taken of Mr Loader. His concern that he was being excluded was exacerbated by Ms Jubb saying to him at the end of his last shift "this is it for you for the year, see you next year". Upon Mr Loader replying that he expected to see her at the Christmas party the following day, he stated in his affidavit that Ms Jubb replied with "no you can't come in tomorrow, the Christmas party is not for you, it is only for full time employees, not for injured, part-time employees".
3. Mr Loader deposed to feeling bullied and harassed upon his return to modified work in January 2024. He stated:

I recall being asked by staff members questions like "can you stand up?", "can you operate your arms".[11]

1. Mr Loader deposed to his mental health having been affected to the point that he obtained a certificate of incapacity for 10 January 2024. He claimed the day as part of his personal leave entitlement.
2. It was not in dispute that Mr Loader's employment was terminated by RPA by letter dated 15 February 2024 and effective from 22 February 2024.[12]
3. It was also not in dispute that in early 2025 Mr Loader underwent a total knee replacement surgical procedure to the right lower limb. In his closing submission, Mr Durkin referred to the date of surgery as being 21 February 2025 and that it was performed in Sydney, New South Wales by orthopaedic surgeon Dr Darren Chen.[13] Neither the Corporation nor RPA disputed those matters of fact.
4. In the second affidavit, Mr Loader addressed a number of matters raised by Ms Jubb in her affidavit. He provided more detail as to the difficulties he experienced in the allocation by RPA of duties for him to perform and how, in those circumstances, he proactively sought duties. He referred to discussion with the production manager Dale Partington and duties that were then performed by Mr Loader which had been approved by Mr Partington. He referred again to having been excluded from the RPA Christmas function. He maintained his version of what happened and added the discussion was in the presence of the office manager Shirl Stewart. Mr Loader added that Ms Stewart approached him after the discussion with Ms Jubb and Ms Stewart asked if he was all right. Ms Stewart did not give evidence.
5. In cross-examination Mr Loader was asked about the days he worked leading to 6 November 2023 and when he next attended at work following the claimed work injury. After working on 23 October 2023, Mr Loader did not work again until 29 October. He then worked on 1 and 2 November. He did not work on 3, 4 or 5 November before undertaking the shift of 6 November 2023. Thereafter he did not resume at work until he returned performing modified duties in December 2023.[14]
6. Mr Loader consulted Dr Abdullah Jobair on 9 November 2023. Mr Loader was taken to a letter prepared by Dr Jobair addressed to the Modbury Hospital Orthopaedic Clinic. Mr Loader accepted the letter did not refer to an incident involving a forklift. Mr Loader gave evidence that, from the outset, he told Dr Jobair how he had sustained his injury. The medical record indicates the consultation on 9 November 2023 was a telehealth consultation. The notes of Dr Jobair were brief and included a reference to "(R) knee need replacement".
7. Dr Jobair provided Mr Loader with a medical certificate certifying unfitness for work between 7 November 2023 and 17 November 2023 inclusive. Mr Loader gave evidence that he first informed RPA of an inability to attend at work by telephone on 7 November 2023. He informed Mr Arjun Anto, the technical manager. In his affidavit of evidence Mr Anto refers to then having informed Ms Jubb of the call and Mr Anto stated that Ms Jubb would have completed an injury form on behalf of Mr Loader in relation to any injury. In that context, Mr Loader said in his oral evidence that he believed at the time the inflammation and swelling experienced that day was from the work that he did on 6 November 2023.[15]
8. Mr Loader stated that on 13 November 2023, after obtaining the certificate of Dr Jobair, he attended upon Ms Jubb and provided it to her. His evidence was that Ms Jubb informed him an inappropriate form had been used and that he needed to provide a Work Capacity Certificate if he intended to make a workers compensation claim. Following that advice he returned to Dr Jobair who completed a Work Capacity Certificate dated 13 November 2023. It certified unfitness for work between 7 November 2023 and 7 December 2023 by reference to a stated cause of "getting in and out of forklift".
9. Mr Loader was then taken to the record of a consultation with Dr Jobair on 23 November 2023. The entry included the following:

Started problem with knee again on 07/11/2023 - due to his excessive overwork of the knee as he worked hard - by coming in and out of the forklift.

1. Mr Loader addressed the reference to 7 November 2023. Mr Loader said he first noticed the right knee being painful and inflamed upon awakening on the morning of 7 November 2023. He attributed the pain and inflammation to the repeated activity with the forklift over the shift on 6 November 2023. He explained:

There was no other activity that I was doing that could explain the inflammation to the knee. I wasn't going off away from work and playing sport or doing anything in recreation. I left work. I went home to my dwelling. I went to sleep. I woke up with a swollen knee.[16]

1. Mr Loader was taken to entries in various medical records relating to the onset of right knee symptoms prior to the claimed work injury of 6 November 2023. It was put to Mr Loader that he had a history of right knee swelling without him having identified a specific cause. For example, he was taken to an entry in the record of the South Australian Prison Health Service which included:

Band of swelling above right knee. No known injury. Has been sore today. Says it felt like full of sand last week and felt heavy.[17]

1. In response, Mr Loader referred to a distinction between a specific incident such as falling down a step and then immediately experiencing swelling of the knee and the development of swelling following long hours of particular activities such as long hours standing.
2. It was put to Mr Loader that he had engaged in activity, following the completion of his work shift on 6 November 2023 and before he noted the swelling and pain upon awakening on 7 November that could have caused the condition giving rise to those symptoms.[18] Mr Richter referred to Mr Loader riding home from work on a scooter and the activity of placing his feet on the ground when stopped at traffic lights. Mr Loader acknowledged in cross-examination that there are three steps to his house that he needed to traverse when he got home.
3. It was put to Mr Loader that he was cranky and angry as a result of not having been accepted as a supervisor on an ongoing basis. Mr Loader readily accepted that he was, and explained:

I was angry with the circumstances in which I was sat down for a review, yes. Because on the morning of the review I'd made a complaint about the fact that my superannuation didn't appear to be paid for several months and it was only a short time after that, that I was sat down for a review and downgraded from my position.

1. Mr Loader was not challenged in relation to his expressed concern that superannuation contributions did not appear to have been paid by RPA for several months. He was not challenged in relation to his assertion that it was shortly thereafter that he was told he would not be continuing in the role of a supervisor.
2. Mr Richter put to Mr Loader that, in terms of timing, it was shortly after Mr Loader considered he had been downgraded in his position that he submitted his claim for compensation. Mr Loader accepted that was so and maintained his claimed injury was attributable to the work activity performed.
3. It was put to Mr Loader that not only did he lie in relation to his assertion of a work injury but that he is a "consummate liar".[19] I understood it to be a proposition to the witness that he is now a complete liar in all matters. I did not allow the question to be put at that time as there had been no foundation for such a serious proposition.
4. Mr Loader was then asked a series of questions about a police investigation into the murder of two men more than twenty years prior. Mr Loader admitted that after he murdered the two men, he told a series of lies to police officers who were investigating the crime and subsequently in the criminal trial. In the course of the cross-examination on this topic, Mr Loader stated:

Is it easier if I interrupt you here and say that I told a lot of lies at that time to try and avoid being sent down for the murders which I had committed?[20]

1. It was then put to Mr Loader that not only is he a liar but he is a good liar. With considerable insight he replied:

Not good enough to get me off a double murder sentence.[21]

1. Mr Loader denied a proposition that he is now a person prepared to lie when convenient and when there is something to be gained.[22] Mr Loader asserted that he has reformed:

So there was a time in my life when all of what you say is true. But at this stage of my life, I've reformed myself as much as possible. My work is with the church. My life is with the church and, at this time in life, I've made all of what I considered to be accurate statements to my employer. I can - when we go through, you will see that the employer hasn't always made accurate statements, but I've made accurate statements, and I rely upon those statements. I stand by them.[23]

1. Mr Loader gave evidence that his admissions to this Court of his murder of the two men, and associated circumstances, was the first time he had made such admissions.[24]
2. Mr Loader was taken through medical records. He acknowledged that he has always been a relatively large and heavy man. At the time of trial he estimated his weight to be about 130kg. In March of 2001 his weight was recorded at 133kg.
3. Mr Loader substantially accepted the entries in medical records prior to his claimed work injury that he was taken to but at times put those entries into context. The entries recorded times of significant symptoms affecting the right knee and of arthroscopic procedures that had been performed.
4. Mr Loader denied a suggestion that, leading to the work activity of 6 November 2023, if he undertook any form of exercise the knee would hurt the next day. He replied:

No. That's not the case, because I worked for a nine month period and didn't have problems with my knee, and I was getting on and off the forklift, walking around the plant, and still not experiencing great problems with the knee. ...I was riding a push bike and strengthening all the muscles around it for a six month period, and I had no problems with the knee. So it's not the case that I exercise and then the knee swells up.[25]

1. Mr Loader agreed that he was not aware of a problem with the right knee on 6 November 2023 and that he became aware of the problem the following day.
2. Mr Loader acknowledged that it was his understanding, whilst he was being treated as an inmate, that he would be likely to need a knee replacement surgical procedure in the future and that it should be delayed as long as possible.[26] He understood the likely need for such surgery in the future was due to the osteoarthritis that was developing in the knee.[27]
3. Mr Loader was taken to the nature of the duties performed leading to 6 November 2023. He accepted that the bags of plastic pellets he was working with were not handled manually, but rather moved by the use of a forklift. He agreed that there was no heavy manual lifting involved in his employment associated with the bags of plastic pellets. As a supervisor, Mr Loader referred to heavy work that involved the use of a sledgehammer, crowbar, right angle grinder and large cutting disc. He would handle large tools weighing approximately 15kg.[28]
4. Mr Loader was taken to his activity of riding his scooter home at the completion of his work shift on 6 November 2023. He accepted a proposition that he would have placed his feet on the ground at the traffic lights, if they were signalling a stop by a red signal, in the 6.3km journey from his workplace to his home. He referred to the existence of two traffic lights within that journey.[29] His evidence was to the effect that when he got home he had a shower and then went to bed.
5. Mr Richter returned to the condition of the right knee leading to the work of 6 November 2023. Mr Loader agreed that the MRI that was conducted in February 2023 was indicative of symptoms to the knee at that time of significance warranting such an investigation.[30]
6. In the course of his evidence, Mr Loader stated that he had always acknowledged significant problems with the right knee in the past and that he had disclosed those problems to RPA when he was first employed. His recollection however was that he did not have any treatment to the right knee following the MRI in February 2023, until 6 November 2023, a period of about nine months, that he did not see a doctor again, and that whilst employed by RPA he did not take any time off work as a result of the right knee condition, until the work activity of 6 November 2023.[31]
7. Mr Loader was questioned as to why he had not completed a workplace injury report form after he acknowledged that he was aware, as a supervisor, how the forms were to be completed. Mr Loader replied that it was a function of the role of supervisor and he was not a supervisor at the time of his injury.
8. Mr Loader accepted a proposition that as he got older he may experience a "flare up" of the right knee without necessarily there being an obvious precipitating cause.[32]
9. Mr Loader maintained in cross-examination, that in the circumstances of Gallagher Basset having informed him that specific light duties had been arranged for RPA to provide, the response he received when he presented himself for work was belittling.[33]
10. In cross-examination, Mr Loader provided more detail of how he came to perform duties in the workshop, which included the operation of machinery, after his claimed work injury. He provided further detail of the instruction provided to him by the supervisor of that workshop, Mr Dale Partington.[34]
11. Mr Loader maintained the duties he performed were within his capacity and did not consider they were contrary to a medical certification received.[35]
12. Mr Loader stated no one at RPA criticised him at the time for the work activity that was undertaken by him and he first became aware of any criticism when he received the affidavit evidence to be relied upon by RPA at trial.[36]
13. Mr Loader denied a proposition that it was appropriate for RPA to have terminated his contract of employment because he would not perform light duties that were allocated to him.[37]
14. In the course of his evidence, Mr Loader stated his supervisor Mr Partington did not accept Mr Loader had an ongoing injury and said words to the effect of "you're only putting it on, anyway".[38] Mr Loader explained that was the basis of having told Dr Phatak that work colleagues had been remarking that his knee condition was made-up. Mr Loader accepted that evidence was not contained in his affidavit of evidence. Neither Dr Phatak nor Mr Partington gave evidence.
15. Apart from the statement expressed to have been made by Mr Partington, Mr Loader referred to comments made by Mr Partington and Ms Jubb, in the background but audible to him, which were critical of him. Mr Loader denied a proposition put to him that his evidence on this topic was a lie.[39]
16. Mr Loader was taken to the text of a letter forwarded by his solicitor to Gallagher Basset dated 24 June 2024 which stated that it was a request for the Corporation to provide permission for Mr Loader to reside outside of the State of South Australia from 24 June 2024. It was not in dispute that no response was provided by the Corporation directly or via Gallagher Basset to that letter.[40] Counsel for the Corporation stated that Mr Loader was not in receipt of weekly payments at the time and that there was no need to grant any permission or to respond in any way.[41]
17. Mr Loader accepted a proposition put by Mr Richter that as he left for Sydney on the same day the letter was sent by his solicitors, there had been insufficient opportunity given for a written response before he left for Sydney.[42]
18. It was accepted by RPA that it received the letter by email transmission at the same time that it was received by the nominated claims agent for the Corporation.[43] There was no evidence of it having sought to communicate thereafter either with Mr Loader or the Corporation in relation to Mr Loader's proposed moved to Sydney.
19. Mr Loader was taken to the content of a medical certificate provided by a doctor he consulted in Sydney which indicated the cause of Mr Loader's injury to be "repetitive movement and heavy lifting". It was put to Mr Loader that it reflected a change in description of how he sustained his injury given the reference to "heavy lifting". That change was denied by Mr Loader. His evidence was that his history had not changed and that the wording in the certificate was how the doctor interpreted the history.[44]
20. Mr Loader stated that he first made application for the Department for Correctional Services to grant permission to move to Sydney on 30 September 2023 and made application to become his mother's carer in July 2024 after he did move to Sydney. Mr Loader confirmed he was originally from Sydney and whilst he has other relatives in Sydney, at the time of his move there in July 2024, his mother was living alone.
21. Mr Loader was taken to the audio recording of his report of injury to "Jimmy" of Gallagher Bassett. A further assertion of dishonesty was put to Mr Loader. After confirming that he experienced pain to his right knee when he woke up on 7 November 2023, it was put to him that he was lying.[45] Mr Richter proceeded with a further challenge to at least the reliability, if not credibility also, of Mr Loader. In the context of Mr Loader having given evidence that he initially had a medical appointment for 8 November 2023 with Dr Jobair, it was put to him that he had produced no evidence of such an appointment. It was put to Mr Loader that the first appointment that he had to see a doctor was the telehealth consultation on 9 November 2023.
22. Mr Loader explained that he was to have had a telehealth consult on 8 November but due to the Optus network outage that day, he was unable to proceed with the call. Mr Loader subsequently obtained and produced to the other parties and the Court a document from Optus which confirmed that a call had been made by him to the Oakden Medical Centre where Dr Jobair consults at 4:44pm on 7 November 2023. Mr Loader stated that it was during that call he made the appointment for a teleconsult the following morning. Mr Loader then referred to an entry in the phone record at 2:50pm on 8 November 2023, of a call to the Oakden Medical Centre. Mr Loader gave evidence he had tried throughout the day, that was the first time he was able to get through and that was the telephone call that rescheduled the telehealth consult to 9 November. Mr Loader was not challenged further on that topic.

1. The trial book contained two affidavits of evidence of Ms Jubb where the first was affirmed on 16 December 2024 and the second was sworn on 5 September 2025. She gave some additional oral evidence in chief and was cross-examined.
2. Ms Jubb deposed to being the safety and human resources manager employed by RPA. She did not explain the positions and operational structure of RPA. No one more senior than her explained the scope of her authority where it was evident from the affidavit evidence of Mr Loader and Ms Jubb that it would be an issue at trial. No documentary evidence was tendered as to the organisational and reporting structure. She deposed to providing her first affidavit in response to Mr Loader's affidavit of 21 October 2024. In response to Mr Loader's evidence of working shifts between 12.5 hours and 14.5 hours, Ms Jubb stated that Mr Loader did not work a shift longer than 13 hours. In relation to the work shift of 6 November 2023, Ms Jubb referred to the employment record indicating Mr Loader worked a shift of 12 hours that day.
3. Ms Jubb referred to a meeting with Mr Loader at her office on 7 November 2023 and that she was provided with a sickness certificate.[46] She stated that she was informed by Mr Loader that he had injured himself at work and as a result she informed him that he needed to obtain a Work Capacity Certificate and that she could not treat the claimed injury as a workplace injury without such a certificate.
4. She agreed that Mr Loader had presented for work on 15 December 2023 but she stated that Mr Loader was provided with light duties which included filing, scanning and "admin work". She asserted that Mr Loader was not "particularly interested" in performing that work and that he spent most of his time on the phone or writing stories in a book instead of completing any tasks allocated. She was not specific in relation to the tasks allocated and were asserted not to have been performed. She referred to Mr Loader having been seen going into the maintenance workshop and using power and hand tools. She asserted that he had been instructed by both his doctor and Ms Jubb that he was only to undertake administrative tasks. She stated that Mr Loader had also been seen cutting down bushes outside of the workplace instead of completing the tasks that had been allocated to him. No example was given by Ms Jubb of a task allocated and which had not been performed at the time she said Mr Loader had been seen cutting down bushes.
5. Ms Jubb denied trying to find the dirtiest and most difficult jobs and denied deliberately excluding Mr Loader from staff activities.
6. In explaining the termination of Mr Loader's contract of employment, Ms Jubb stated:

On 22 February 2023 (sic) I terminated Michael's employment on the basis that he was unfit for the inherent requirements of his position.[47]

1. In her second affidavit, she addressed an issue between the parties as to the number of hours worked per shift by Mr Loader. She was aware of an application by Mr Loader for production of his daily time sheets. They were not produced. The reason given by Ms Jubb was that the timesheets are prepared per shift and not per employee. She asserted that it would have been unreasonable to expect her, as the sole human resources officer, without administrative staff or assistants, to undertake the task of reviewing the time sheets for each shift between 25 January 2023 and 10 January 2024. She asserted that the exercise would take her many days, if not weeks. In the circumstances of Mr Loader not having access to the timesheets requested, Ms Jubb maintained that Mr Loader had not worked a shift up to 14 hours. She referred to detail recorded in payroll documents rather than timesheets. That was notwithstanding her reference to Exhibit "CJ 1" to her first affidavit as being "a bundle of timesheets".[48] In her oral evidence, she provided information by reference to some payroll documents and some time sheets. At least some of her evidence on this topic assumed consistency between the hours worked on shift as recorded in the timesheets and the hours he was paid for as recorded in the payroll documents. Nothing turns on the number of hours worked per shift in the range between 12 hours and 14.5 hours except in relation to the calculation of the average weekly earnings rate which is not being set in these reasons and orders.
2. Ms Jubb referred to a discussion with Mr Loader relating to a treatment plan. She stated that medical restrictions of working six hours per day, five days per week in an office desk job not lifting more than 3kg and no pushing/pulling more than 7kg and no climbing up and down stairs was discussed with Mr Loader. She said that she assigned tasks to him and that she told him if he finished the job he was working on then he was to approach other staff members to see if they needed other administrative work to be undertaken. She stated that all work had to be approved by her.[49] It was not clear from her evidence whether she told Mr Loader that whilst other staff could allocate administrative duties to him, the performance of such duties still had to be approved by her.
3. She confirmed orally her affidavit evidence that it was in June 2024 that she became aware of Mr Loader's move from Adelaide to Sydney. She did not recall who provided that information to her.
4. Ms Jubb stated that she did not ask Mr Loader to perform duties in the workshop, and was not aware of anyone else asking him to do so.
5. Ms Jubb's evidence was that she discussed Mr Loader's work activity in the workshop on at least two occasions. The effect of her evidence was that, at least twice, she told him not to do so and that she ultimately told him that he was office bound and that he must only work on the desk and do jobs that had been assigned by her to him. Ms Jubb could not recall when that discussion took place.[50] She stated the discussion took place in the office and in the presence of others.[51] She referred to the "accounts receivable" person as being present. That person was not called to give evidence. No other person gave evidence to corroborate the evidence of Ms Jubb on this topic. Ms Jubb did not give evidence about anything said by Mr Loader in the course of this discussion. In the context of her evidence of a hostile relationship between her and Mr Loader, it would be expected that there would have been some response if Ms Jubb accurately informed the Court what she told Mr Loader.
6. Ms Jubb was cross-examined about why Mr Partington had not been called to give evidence as a witness for RPA. After establishing that Mr Partington still works for RPA,[52] the following exchange took place:

Mr Durkin: Is there any reason why he hasn't been called to give evidence in this matter?

Witness: I'm not too sure.

Mr Durkin: Right. But you didn't ask him to?

Witness: No.[53]

1. Ms Jubb accepted records of RPA confirmed that Mr Loader called and spoke to Mr Arjun Anto on 7 November 2023 and reported that he had an incapacity.[54]
2. Ms Jubb was taken to the content of a recovery and return to work plan which had a date completed entry of 29 November 2023. It stated that it had been developed during a meeting between Mr Loader, RPA and a rehabilitation provider. Ms Jubb stated that she would have been the representative of RPA but did not recall the meeting.[55] Ms Jubb subsequently stated that if there had been an attendance at the work site to determine what duties could be made available for Mr Loader to perform, she was not involved.[56]
3. That plan identified a goal of recovering from the injuries sustained and returning to work. An agreed action was to undertake a work site assessment and for that report to be provided to all parties. Ms Jubb was then taken to the Exercise Physiology - Worksite Assessment Report being the report that was contemplated on 29 November 2023. The Exercise Physiology - Worksite Assessment Report is dated 4 December 2023. The author, exercise physiologist Alex Vorrasi, included the following entry related to light duties:

Employer can accommodate a return back to work performing strictly light duties. Light duties can consist of office based computer tasks, light packaging/sampling, and when tolerances improve can undertake machinery work on reduced hours.

1. Ms Jubb accepted that statement was based upon information that she provided to Mr Vorrasi.[57] Ms Jubb stated that her earlier evidence of a direction to Mr Loader to only undertake office tasks took place after the plan was developed. When asked to explain why she would have made that statement if the Exercise Physiology - Worksite Assessment Report referred to machinery work on reduced hours when tolerances improved, she stated:

Witness: We didn't have a discussion about his tolerance being any better and I kept receiving Work Capacity Certificates that stated he was only able to do the tasks that were admin-related.[58]

1. Ms Jubb denied treating Mr Loader in a belittling manner. She stated her direction to Mr Loader was to perform the duties allocated by her and that if she were not available then he was to ask other staff if there were any tasks that he could perform to assist them. Ms Jubb was taken to Mr Loader's evidence that when he attended the office for the first time to perform light duties on 15 December 2023, there were no duties made available for him to perform. Ms Jubb did not recall that having occurred.[59] Ms Jubb's recollection was of many administrative duties being available. Ms Jubb accepted, however, that she had complained to Gallagher Bassett that it had been frustrating for her to find duties for Mr Loader to perform given there were employees who were paid to undertake those duties.[60]
2. Ms Jubb initially denied Ms Shirl Stewart being involved in the process of finding suitable duties,[61] but then accepted that if Ms Jubb had not been present at the relevant time then Ms Stewart may have had a role.
3. It was Ms Jubb's position that, as RPA's return to work officer, she was the only person who had authority to delegate tasks to Mr Loader. She denied that Mr Partington, as production manager, would have authority to allocate tasks to Mr Loader. As already noted, there was no evidence corroborating that statement, notwithstanding it being an issue at trial and Ms Jubb's reliability and credibility being in issue.
4. Ms Jubb was questioned about the circumstances of RPA terminating Mr Loader's contract of employment. The following exchange occurred:

Mr Durkin: ...now who made the decision to terminate Mr Loader's employment?

Witness: I did.

Mr Durkin: You did? You didn't consult with anyone else in management?

Witness: I consulted legal.

Mr Durkin: Right. Now there's no mention in that document, is there, of Mr Loader not complying with directions as to the performance of light duties?

Witness: Not in this letter. No.

Mr Durkin: No. There's no mention in that letter of any disciplinary process that Mr Loader has been subjected to at any time which might have been involved in the decision to terminate his employment?

Witness: Not in this letter. No.

His Honour: Would you say those matters are addressed in any other letter to Mr Loader?

Witness: Yes.

Mr Durkin: Do you say that you directed correspondence to Mr Loader, upbraiding him for failing to perform light duties as directed?

Witness: In documentation, sorry?

Mr Durkin: Yes.

Witness: No. Not in documentation.[62]

1. After Ms Jubb generally referred to disciplinary actions taken against Mr Loader during his employment, the following exchange took place:

His Honour: ...there could be any number of reasons for disciplinary notices being issued by a human resources manager. To your knowledge, did any of that relate to not complying with directions with respect to light duties?

Witness: Not in respect of light duties.[63]

1. Ms Jubb disputed Mr Loader's evidence of having started his shift at times at 6:15am. Her evidence was that the earliest start time would be 6:30am. She denied Mr Loader's evidence of numerous occasions having worked beyond 7:15. She stated that her evidence was based upon the content of timesheets which, as previously noted, were sought by Mr Loader and not produced to him.[64] He was thereby not in a position to test her evidence in cross-examination by reference to the totality of the timesheets.
2. Ms Jubb acknowledged having seen Mr Loader's second affidavit and his reference to Ms Jubb having held frequent conversations with Mr Partington where she would describe placing Mr Loader in the water treatment plant or the wash plant when he became available for full duties. She said that she did not discuss that evidence with Mr Partington. She initially said she did not recall making a comment to Mr Loader, when she had influenza, that if it had been COVID then she would have coughed all over him.[65]
3. After denying having told Mr Loader not to attend the Christmas function on the basis that it was for full time workers and not him, the following exchange took place:

Mr Durkin: Why didn't he go to the Christmas party, to your knowledge?

Witness: My understanding is that it became quite hostile, and he did not want to be present.

Mr Durkin: What became quite hostile?

Witness: The environment.

Mr Durkin: What do you mean by that?

Witness: It was quite uncomfortable between Mr Loader - it was very obvious he didn't want to be at work.

Mr Durkin: The environment between Mr Loader and who became hostile?

Witness: Myself and Mr Partington.

Mr Durkin: So you're speaking for Mr Partington because obviously he can't speak for himself in this trial.

Witness: From what I witnessed.

1. I asked Ms Jubb some questions to clarify that evidence. She said that her working relationship with Mr Loader, following his claimed injury, was immediately hostile and became progressively worse.[66]
2. Ms Jubb was questioned about her response to Mr Loader's work activity in the maintenance shop. Her evidence was to the effect that she did not speak to Mr Loader or discipline him at the time but rather later, when she became aware.
3. Ms Jubb agreed that she wrote to Mr Brendan Gloyne of Gallagher Bassett on 10 January 2024 stating that she had requested Mr Loader not to return back to work until he was able to work at full capacity. She admitted the effect of the communication was to advise that RPA no longer had light duties available for Mr Loader to perform. She also agreed that she reported to Mr Gloyne that Mr Loader had not been performing his light duties despite it having been reiterated to him on multiple occasions.
4. I asked Ms Jubb, given her evidence of her concerns that Mr Loader had not been performing light duties as allocated by her to him, where her evidence had been that she was the only person authorised to approve the light duties to be performed and given that the concerns expressed to Gallagher Bassett that Mr Loader had not performed the light duties allocated to him despite those duties having been reiterated on multiple occasions, why there was no confirmation by her in writing. The following exchange took place:

His Honour: Is there any reason why you didn't confirm that in writing?

Witness: No. I don't have a reason for that, your Honour.[67]

1. Ms Jubb then confirmed Mr Durkin's understanding of the effect of her evidence that she had allocated sufficient light duties to Mr Loader that would have occupied all of his time in the workplace.[68]
2. Ms Jubb agreed that since the termination letter of 15 February 2024, RPA have not offered any duties to Mr Loader and that, to her knowledge, RPA had not been requested by Gallagher Bassett to provide any duties to Mr Loader following the letter of termination of employment.[69]
3. In re-examination, in response to a suggestive question of whether she could not recall telling Mr Loader that if she had COVID-19 she would spit on him, which had been her earlier evidence, if the case was that it did not happen. Her evidence then changed to "That did not happen".
4. Ms Jubb was asked about performance counselling with Mr Loader. She gave evidence of Mr Loader's reaction on or about 1 November 2023 where Mr Loader was told that he would not be continuing as a supervisor and would be returning to work as a silo operator. Ms Jubb referred to Mr Loader's reaction as being abrupt, upset and rude.
5. Ms Jubb was taken to a text message she sent to Mr Loader on 10 January 2024 advising him that there were no light duties available. She was asked about concerns she may have had at the time and she referred to how Mr Loader may react. She said that she was probably scared given the history of Mr Loader having been a double murderer.[70]
6. That was the first reference to such concerns whilst dealing with Mr Loader over the performance of light duties. Earlier in her evidence, I raised with her whether she had given any thought, given her evidence of a hostile relationship between them since the claimed work injury, to having someone else deal with Mr Loader. The following exchange took place:

His Honour: Was any thought given to maybe having someone else deal with Mr Loader if the relationship between you had become toxic?

Witness: I thought it was something that we would be able to overcome. Obviously, it's not a great situation for himself and I understood that. And I tried to work with that, but it just got progressively worse.[71]

1. Mr Anto gave evidence by way of affidavit affirmed on 16 December 2024 and some additional oral evidence. Mr Anto stated in his affidavit that he received a telephone call from Mr Loader at approximately 6:55am on 7 November 2023. He recalls Mr Loader stating that he was sick and would not be attending at work that day. Whilst he could not recall exactly what Mr Loader said, he expressed confidence in Mr Loader not having reported knee problems. Mr Anto stated the usual process if someone calls and reports a work injury is that, as a matter of courtesy, he would notify human resources.[72] In oral evidence, Mr Anto was taken to Mr Loader's evidence of the telephone discussion, as set out in his first affidavit. It was noted that Mr Loader used the expression that he "rang in sick" before stating that he specifically referred to his right knee not allowing him to work. It was put to Mr Anto that as Mr Loader did not make a specific reference to an injury Mr Anto may not have recalled a passing mention to a knee. Mr Anto's response was that he could not recall Mr Loader referring to the knee. He also stated that he could not recall whether Mr Loader made mention of an injury and he made no notes of the telephone conversation.

1. Dr Morris is a consultant orthopaedic surgeon. Mr Loader was referred to Dr Morris by General Practitioner Dr Jobair. Dr Morris assessed Mr Loader on 15 December 2023 and wrote to Dr Jobair that day. Mr Loader was reviewed by Dr Morris on 23 January 2024, and Dr Morris wrote a brief letter to Dr Jobair that day. The two letters were contained in the trial book and Dr Morris gave oral evidence.
2. The letter to Dr Jobair dated 15 December 2023 contained the following history:

A month or so back he was moved from a supervisory role where he was walking the floor at the plastics plant to a forklift job, and was getting on and off the forklift multiple times a day. It was during this repetitive movement that he says he has exacerbated his knee condition to the point where now he has got quite a great deal of discomfort and catching.

1. After addressing the radiological investigations that had been performed in the past and noting prior surgery to the right knee, Dr Morris stated that Mr Loader had "clearly exacerbated his underlying osteoarthritis". He expressed uncertainty at that time as to whether the exacerbation would settle. In the context of the total knee replacement surgery that had been performed earlier in 2025, when Dr Morris gave his oral evidence on 17 October 2025, the following exchange took place with Mr Durkin:

Mr Durkin: Is it the case, Doctor, that given the radiology, and it goes back to 2010/2011, that it could have been the case that he didn't subsequently have a flare up and didn't subsequently need a total knee replacement?

Witness: That's correct. That's a possibility, yes.[73]

1. Dr Morris agreed with a proposition put by Mr Durkin that a patient can have radiology of a knee showing bone on bone contact but the patient remain asymptomatic.[74]
2. In cross-examination, Dr Morris elaborated and stated:

It's difficult to say who becomes symptomatic, and what I try to explain to patients is that an x-ray gives us a diagnosis of the underlying pathology, which is osteoarthritis. These symptoms are different for you, for me, for anybody, and treatment is based on symptoms, not radiology. So if you have no symptoms, you don't need any treatment.[75]

1. Mr Richter questioned Dr Morris about the possible significance of a radiological finding of a small body within the right knee. When raised as a possible floating body which could move and cause symptoms, Dr Morris explained that the radiological film is a static picture, that sometimes such a body may be static and sometimes it may be a free body, floating around and potentially causing problems.[76] Dr Morris accepted that the body demonstrated radiologically could cause symptoms but went on to observe that the history he obtained from Mr Loader was of having worked in a supervisory role, where he was coping, and that upon the change of role he experienced a flare up and his knee condition became worse. He then became unable to cope with that workload.[77]
2. Dr Morris did not have a clear recollection of exactly what Mr Loader told him of the onset of symptoms relative to the work activity of getting in and out of a forklift. He did not recall being told that the onset of symptoms to the right knee was upon waking up the day after the work shift. Dr Morris pointed out that he was being asked to recall details from a conversation with a patient that took place almost two years before he gave evidence and that he had trouble remembering the exact wording of what he was told.[78]
3. After he was told that Mr Loader first noted symptoms specifically to the right knee on the morning when he woke up after having completed the work shift the previous day, and that over the ensuing days the right knee swelled up to the point Mr Loader was unable to bend his knee, Dr Morris said that he could not recall a report of a traumatic injury.[79]
4. Dr Morris gave evidence that, noting the MRI findings of degeneration affecting the right knee, Mr Loader was prone to having an exacerbation of symptoms and that twisting of the knee could precipitate such an exacerbation.[80]
5. Dr Morris accepted that repetitive activity such as the repetitive work activity involving the use of a forklift or going home after the work shift ended could cause an exacerbation. Dr Morris stated that there was no clear link as to cause and effect in this case but that was expressed to be in comparison to someone who may have fallen off a motorbike and broken his ankle. Dr Morris's evidence with respect to causation was acknowledged by him to be by reference to a scientific standard of proof.[81]
6. Dr Morris stated that with a standard underlying arthritic condition it is uncommon to just go to sleep and wake up the next morning in pain. There is usually an exacerbating cause.[82] He added:

You'd need some degree of trauma or some degree of repetitive strain.[83]

1. Dr Edirisinghe is a consultant orthopaedic surgeon. He initially assessed Mr Loader at the request of Gallagher Bassett on 26 April 2024. He provided two reports to Gallagher Bassett dated 14 May 2024 and 20 November 2024. He provided a report to the solicitors for RPA dated 20 February 2025 and a report to Mr Loader's solicitors dated 4 April 2025. He also gave oral evidence.
2. A history was obtained of repetitive strenuous activity getting up and down from a forklift on 6 November 2023 and that Mr Loader reported an acute exacerbation of knee pain thereafter. The doctor recorded a history of the activity of getting up and down and operating the forklift having been strenuous on the right knee. Although Dr Edirisinghe recorded a history of Mr Loader not recalling any issues with the right knee prior to the incident of 6 November 2023, it is likely he meant there were no issues leading to the incident because he then immediately noted a history of prior surgery to the knee some 10 years earlier performed by Dr Henry Forbes.
3. In his first report, Dr Edirisinghe provided a diagnosis of an acute aggravation of knee pain from the described work event. He referred to the work event as having exacerbated an underlying osteoarthritic condition of the knee. He referred to a definitive treatment in response to be a total knee replacement.
4. In his second report, Dr Edirisinghe stated there was a strong possibility Mr Loader may not return completely to his original state. In his third report, he compared imaging taken between January 2023 and December 2023. He did not identify any significant changes or deterioration. He maintained his earlier opinion that Mr Loader's presentation was consistent with an aggravation of osteoarthritis. He added that given the natural progression of arthritis it would have been likely for Mr Loader to have experienced a similar aggravation as the disease progressed but considered that Mr Loader had still not returned to his pre-existing state.
5. The solicitors for RPA asked whether there was any particular work activity that caused the aggravation that he had referred to. Dr Edirisinghe replied that the work related injury of 6 November did not cause a particular injury and the aggravation was not the result of particular work activity. He then immediately added that he supported the claim. In the report to Mr Loader's solicitors, Dr Edirisinghe stated that there was no clear evidence that the work environment caused strenuous overuse to lead to a total knee replacement but that the work remained a significant aggravating factor for Mr Loader's symptoms to be noticeably symptomatic.
6. In his oral evidence, Dr Edirisinghe accepted that the arthritic condition of the right knee, prior to the work activity of 6 November 2023, may one day have required a total knee replacement but that it was equally possible, in the circumstances of the knee symptoms having been quiescent over some 10 months that he had worked for RPA leading to 6 November 2023, that he may never have required such surgery.[84]
7. In cross-examination the doctor accepted that Mr Loader's weight could have been a contributing factor to the progression of his arthritic knee, together with occupational overuse, and genetics.[85] As to the significance of a possible contributing factor of weight, the doctor referred to an issue of being able to identify at what point the weight may cause the underlying condition to progress from no symptoms to symptoms. He stated that is not clear. [86] The doctor then explained that the ultimate decision for a knee replacement is the patient reporting symptoms in the sense of reporting pain and that it functionally affects the patient. He emphasised that such decisions about surgery are never based upon radiological findings.[87] Dr Edirisinghe stated:

So basically I would say if the patient does not report symptoms, we don't even consider [what] the radiology looks like. If the patient comes to you with severe pain, functional disability, then we try to correlate that to a scan and findings, because some patients present to us with pain that's not in the knee. ...But in a patient that comes to us with severe pain disability, we have a look at the knee and that correlates to x-ray changes that we see that indicates arthritis, that is an indication for us to proceed to a surgical option.

1. The doctor stated that the pre-existing condition of the knee would have led him to predict there was a high chance that Mr Loader would have come to a knee replacement procedure at some point.[88] The doctor was taken to a radiological finding of full thickness chondral loss. He accepted that meant the arthritis had progressed to the point of bone touching bone. He added however that there are patients with such radiological findings who are not symptomatic.[89]
2. Dr Edirisinghe accepted a twisting force upon an arthritic knee could cause pain. In that context, he accepted that any event could have caused an aggravation of the underlying arthritic changes.[90]
3. The doctor was taken to a radiological report that referred to a loose body that was seen postero laterally in the knee. The doctor explained that bone spurs may form and then break off and become a loose body within the knee. He accepted, depending upon the size, such a body can produce symptoms by way of pain and swelling. However, he maintained that, in this case, the overall arthritis would be the driving force of Mr Loader's problems.[91] He accepted that a body of 14mm could produce symptoms and that the most common presentation is of a locked knee and a sensation of a pebble floating in the knee. He referred to a loose body resulting in a specific finding for orthopaedic surgeons as a locked knee. His evidence did not indicate such a finding in this case.
4. Upon further questioning as to the range of events that could have produced the aggravation in this case, the doctor confirmed a history obtained from Mr Loader that he thought his onset of symptoms could have been related to heavy strenuous work and he then accepted a proposition from Mr Richter that it could have been anything involving a twisting motion.[92] In that context, and a further proposition from Mr Richter that included the motion of twisting, Dr Edirisinghe again stated that any event could have been a precipitant.[93]
5. In re-examination, Dr Edirisinghe confirmed that the history he obtained from Mr Loader indicated that the only strenuous activity that he had performed, leading to his onset of symptoms, was his work activity.
6. The doctor confirmed his understanding that after the onset of symptoms in November 2023, the right knee symptoms persisted, the "flare" persisted and that resulted in the need for a knee replacement.

1. I have reviewed and have had regard to the other documentary evidence tendered in the course of the trial.

1. In his closing submissions, Mr Richter referred to two issues being causation and mutuality and that, in relation to causation, he identified two sub issues. The first is the credit of Mr Loader and the second is whether, in the event of his evidence being accepted, it is sufficient to prove a relevant causal link.
2. Mr Loader was referred to as a "self-confessed, admitted, complex liar".[94]
3. RPA urged a finding that there was no mention of the knee when he reported that he was sick, to Mr Anto, early on the morning of 7 November 2023. A query was raised as to why Mr Loader did not contact Ms Jubb directly, if not by phone then by text message, that he believed that he had sustained the work injury. Reference was made to the initial entry by Dr Jobair of a degenerative right knee and a statement of "right knee replacement". RPA sought to contrast Mr Loader's evidence of having generally experienced aches or pains throughout his body at the end of his work shift on 6 November 2023, but no record of that having been reported to Dr Jobair.
4. Reference was made to the concession by Mr Loader, when he spoke by telephone to the officer "Jimmy" of Gallagher Bassett at the time of reporting his work injury, that he was not sure whether the cause of his right knee symptoms was getting off the forklift or "just getting old". It was submitted the significance of the comment is that Mr Loader was aware of the long standing diagnosis of osteoarthritis in his knee and the expectation that he would experience symptoms from time to time.
5. RPA submitted the Court should find the reference to generalised aching throughout the body at the end of the work shift was an exaggeration created at the time Mr Loader was required to present his evidence to the Court.
6. RPA submitted a plausible explanation for the presenting symptoms after 6 November 2023, which was contended to include locking of the knee, was a loose body within the knee.
7. RPA noted there was no history of right knee pain whilst at work on 6 November 2023. It was submitted that Mr Loader erroneously told Dr Morris that he had experienced pain to his right knee whilst performing work on 6 November.
8. As I understood the overall submission, Mr Loader's case was no more than a reconstruction of events to seek to link Mr Loader's undoubted right knee arthritic condition to his employment.
9. Mr Richter made specific reference to the timing of the telephone call to Dr Jobair's medical clinic on 7 November 2023. He submitted it should trouble the Court that Mr Loader rang RPA at 6:41am but did not call the medical clinic until 4:41pm. Why that should trouble the Court was not explained.
10. RPA submitted that the facts are equally consistent with various possible causes for the right knee pain and swelling which progressively developed after the work shift of 6 November 2023 such that Mr Loader has failed to discharge the onus upon him to prove his case on the balance of probabilities. Reference was made to the expert medical opinion, especially that of Dr Edirisinghe and the case of RPA, as put to the doctor and accepted by him, that any event involving twisting could have caused the aggravation injury which is the subject of Mr Loader's claim for compensation.[95]
11. Mr Richter accepted the medical evidence in this case referred to two types of events that could produce symptoms and potentially ongoing symptoms. The first was repetitive work activity, like the forklift activity that was performed on 6 November 2023, and the other being a twisting incident.[96] RPA submitted twisting of the knee is part of everyday living.
12. When asked the basis of RPA's case that Mr Loader had lied to this Court, Mr Richter referred to the history recorded by Dr Morris of Mr Loader having exacerbated his right knee condition by going up and down a forklift.[97] When asked whether there was evidence of a flare up of symptoms to the right knee following the MRI investigation on 6 January 2023 and before 6 November 2023, Mr Richter referred to what appears to have been the follow up attendance after the MRI, which took place on 7 February 2023. He referred to but accepted that an entry in the clinical record on 21 September 2023 related to a lower anterior abdominal wall strain which had been attributed to lifting a weight.
13. RPA urged a finding that Mr Loader deliberately refused to perform the light duties that he was directed to perform by Ms Jubb and which had been made available for him to perform. It was contended that even if Mr Partington purported to approved the performance of other duties, Mr Loader knew that he should have obtained Ms Jubb's authorisation first and did not do so. Mr Richter addressed the text message from Ms Jubb to Mr Loader of 10 January 2024 and urged the Court to find that, notwithstanding the text referring to RPA no longer being able to accommodate light duties because such duties were no longer available and that Mr Loader was not to return to work until being able to work in a full capacity, the real reason for the termination of employment was serious and wilful misconduct. Mr Richter urged that the Court find that, at the time, Ms Jubb was frightened of Mr Loader given he had committed a double murder and that he is a big man. Mr Richter did not invite the Court's attention to any evidence of Ms Jubb having raised being frightened prior to the text message of 10 January 2024.
14. RPA submitted that Mr Loader's conduct amounted to a breach of mutuality.
15. Mr Richter referred to s 48(2)(g) of the RTW Act which provides that, subject to the Act, weekly payments to a worker who has suffered a work injury must not be discontinued unless the worker is, without the Corporation's consent, either residing outside the State or absent from the State for more than two months in any continuous period of 12 months. Mr Richter referred to Mr Loader having obtained permission from Correctional Services to leave the State in September of 2023 but did not notify the Corporation until the day he left in July 2024. It was contended that, properly construed, the letter did not seek consent.
16. RPA submitted its action, in withdrawing the light duties and then proceeding to terminate the contract of employment, was not a breach of mutuality. It asserted, in effect, that Mr Loader brought about that circumstance by performing work outside of the scope of the prescribed medical certificate that was operative at the time. Mr Richter submitted it would be a standard of perfection to have provided Mr Loader with a formal letter informing him that RPA considered his actions to be contrary to directions given and the content of prescribed medical certificates and that disciplinary action could follow before proceeding to terminate the contract of employment.
17. RPA submitted that the notice provisions in s 48(6) and (7), which provide that the notice of discontinuance must be given at least the prescribed number of days before the decision is to take effect in a case such as that before the Tribunal do not preclude the Court from applying the circumstances in s 48 to confirm a rejection of a claim for weekly payments. He referred to s 30(3)(b) of the South Australian Employment Tribunal Act 2014 (SA) which provides the decision maker's decision, as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision maker's decision is to be regarded as, and given effect as, a decision of the decision maker, and unless the relevant Act states otherwise, or the Tribunal orders otherwise, is to be regarded as having effect, from the time when the decision reviewed would have, or would have had, effect.

1. The Corporation supported the submissions advanced by RPA. By the time of closing submissions the Corporation appeared to have changed its position in relation to the application of s 48(2)(g) of the RTW Act. In the course of the trial Mr Colgrave stated that as Mr Loader was not in receipt of weekly payments at the time there was no need to grant any permission or to respond in any way. With respect to the credibility of Mr Loader, Mr Colgrave, who appeared as counsel for the Corporation, submitted that "once a liar, always a liar". Mr Colgrave referred to Mr Loader as only having admitted, for the first time in the witness box in these proceedings, the lies that he told in relation to his criminal prosecution. It was submitted that only occurred because there is no longer anything to be gained by maintaining those lies. When asked if the Corporation was seeking a finding that Mr Loader had lied to this Court and, if so, the basis for such a finding, Mr Colgrave replied that he was simply making the observations that he had raised and that the Corporation supported the submissions advanced by RPA with respect to Mr Loader's credibility.
2. Mr Colgrave addressed the average weekly earnings rate in the event of a finding of an entitlement to weekly payments. He referred to an amount of $1,800 per week which had been the rate set for the payment of interim weekly payments.
3. The Corporation submitted that by taking himself outside of the State Mr Loader put himself into a position where he could not be employed and that his former employer could not be said to have failed to employ him. Mr Colgrave referred to the judgment of Hannon DPJ in Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) (Sacco).[98] His Honour found Mr Sacco suffered a work injury on 10 February 2016 and thereafter suffered either a total or partial incapacity for work as a result of the compensable injury. His Honour also found that Mr Sacco's conduct, in failing a drug test on 10 February 2016, was serious and wilful misconduct involving a breach of mutuality which justified his dismissal on that ground. His Honour then found that the breach of mutuality disentitled Mr Sacco to weekly payments of compensation from the time of the injury until any restoration of mutuality. The Corporation submitted the judgment stands as authority for circumstances amounting to a breach of mutuality which could give rise to a discontinuance of weekly payments under s 48(2)(f) (as further addressed in s 48(3)) can also be a basis for a disentitlement of weekly payments when a claim is determined by the Corporation and where that decision is under review by the Tribunal in a hearing de novo. In relation to the separate basis by reference to s 48(2)(g) of the RTW Act relating to a worker being outside of the State, Mr Colgrave acknowledged that the Corporation received the letter from the applicant's solicitors in June 2024 and that there was no evidence of a response.

1. Mr Durkin submitted there should be a finding that Mr Loader was a witness of truth when he gave his evidence and was truthful at all material times concerning the events related to his claim.
2. Mr Durkin noted that Mr Loader, on his own evidence, had lied extensively in relation to a past event but he submitted that did not establish, as was contended by RPA through its counsel, that Mr Loader is, now, an abject liar. Mr Durkin went further and submitted there was no evidence that could support a finding that Mr Loader had been deliberately untruthful to the Tribunal and submitted RPA, in closing submissions, could not identify any evidence that would warrant such a finding.
3. In circumstances of there being no specific incident followed by an immediate onset of symptoms, Mr Durkin submitted the Tribunal should look at all of the facts and the sequence of events in order to make appropriate findings of fact. Mr Durkin submitted this contrasted to the approach of RPA which invited the Court to speculate as to possible causes.
4. Mr Durkin submitted there was speculation associated with the contention of RPA that stopping at traffic lights, after the completion of the work shift, could have caused the injury where there was no evidence of a twisting action. On the other hand, Mr Durkin referred to the expert medical opinion that repetitive work activity of the type undertaken by Mr Loader during the lengthy work shift of 6 November 2023 could cause the aggravation injury that is the subject of the claim for compensation and Mr Durkin noted the unchallenged evidence of Mr Loader that, during that shift, he got in and out of the forklift approximately 200 times.
5. Mr Durkin referred to a "haphazard" approach by RPA to the provision of light duties and the contention that Mr Loader failed to comply with directions given to him. He submitted there was no objective evidence that Mr Loader declined any particular task allocated to him.
6. It was submitted that the Tribunal could comfortably accept the evidence of Mr Loader relating to his exchanges with Mr Partington as Mr Partington was not called to give evidence on behalf of RPA.
7. The Tribunal was urged to reject the evidence of Ms Jubb. Mr Durkin noted Ms Jubb raised for the first time late in her oral evidence, a suggested fear of Mr Loader. It was submitted the Tribunal should find it significant that it was not raised earlier and that Mr Loader was thereby deprived of the opportunity to have addressed that assertion in his evidence.
8. Mr Durkin submitted that the Court was not being asked to accept Mr Loader's evidence on the basis of accepting at face value his statement that he is now a reformed man but rather by approaching his evidence to the Court on the basis of its consistency and the unsatisfactory evidence given by Ms Jubb where it contradicted Mr Loader's evidence.
9. Insofar as RPA contended some inconsistency in histories provided by Mr Loader to doctors, Mr Durkin urged the Court to reject that submission and find the entries were generally consistent with Mr Loader's evidence and to the extent of any difference, is likely attributable to an interpretation of what the doctor was told or the absence of the full detail of what the doctor was told.
10. It was submitted that the doctors who gave oral evidence supported a finding of the repetitive work activity of 6 November 2023 causing an aggravation of underlying and pre-existing degenerative changes in the right knee. The Tribunal was asked to find that that aggravation has been ongoing in terms of its symptomatic effect resulting in an ongoing incapacity for work and the need for treatment including the total knee replacement surgical procedure.
11. The Court was urged that to find Ms Jubb's evidence in relation to the reasons for the termination of the contract of employment as unsatisfactory. Mr Durkin referred to the statement made in the text message to Mr Loader that light duties were no longer able to be provided and her subsequent attempts to resile from that statement. Mr Durkin referred to what was stated in the text message as consistent with Mr Loader's evidence of a failure to consistently provide him with administrative tasks which led him to seek other duties in the workshop.
12. Mr Durkin referred to the telehealth consultation notes of Dr Jobair relating to the consultation on 9 November 2023. It was submitted that in the absence of any further evidence from Dr Jobair as to his practice, it remains unclear as to the extent to which histories are taken by him in the course of a telehealth consult.
13. Whilst urging the Court to prefer the evidence of Mr Loader where it contrasted to the evidence given by Ms Jubb, Mr Durkin submitted in relation to some points the witnesses may simply have had differing but honest recollections of what happened. He referred to Mr Loader's evidence of Ms Jubb and Mr Partington being critical of him behind his back and Ms Jubb denying that was so.
14. Where Mr Loader had continued to perform work tasks and they were withdrawn by RPA which also then proceeded to terminate his contract of employment, it was contended that his subsequent travel interstate to Sydney could not amount to a breach of mutuality on his part. Mr Durkin also referred to the evidence which confirmed that neither the Corporation nor RPA contacted him to indicate a change of position of RPA with respect to a possible return to work there.
15. In relation to the application of s 48(2)(g)(i) of the RTW Act, Mr Durkin essentially submitted that RPA and the Corporation could not receive the letter from the solicitors advising of the move to Sydney, not respond in any manner to the letter, and then seek to rely upon an absence of consent as a basis to disentitle Mr Loader receiving weekly payments. Mr Durkin also drew attention to the content of the Statement of Facts, Issues and Contentions of the Corporation, and that of RPA referred to Mr Loader being disentitled to weekly payments by voluntarily taking himself out of the labour market in order to care for his mother, which Mr Durkin submitted was a reference to a breach of mutuality, and there was no expressed reliance upon an absence of consent for the purposes of s 48(2)(g) of the RTW Act. Mr Durkin also referred to the relevant contention of RPA which was:

Further the applicant left the State of SA in or about June 2024 and as such, in the event that his claim is compensable, has not made himself available for suitable duties.

As I understood the submission, that was an even clearer statement of reliance upon a want of mutuality and not an absence of consent to interstate travel.

1. Before addressing the issues raised and to be determined, it is convenient to address some evidence and make findings of fact in relation to some matters of background that were not in dispute. Prior to the experience specifically of right knee pain on the morning of 7 November 2023, Mr Loader had a long-standing arthritic condition of the right knee which dates back at least to an injury in early 2010 whilst running in the course of playing basketball. Over the next few years Mr Loader's right knee was investigated as a result of ongoing symptoms and he underwent two arthroscopic surgical procedures performed by Dr Forbes, with the second having been performed on 6 February 2012. Thereafter, Mr Loader maintained an active lifestyle which included playing sports such as volleyball, football, soccer, table tennis, badminton and boxing. He was relatively well until a twisting event in March 2018 caused some swelling of the right knee. That settled until a significant stiffness of the right knee was noted in June 2022.
2. On 6 January 2023, an MRI scan was performed because Mr Loader was presenting with right knee pain at that time. It showed severe medial compartment osteoarthritic change together with moderate extensor compartment osteoarthritic change. Two pieces referred to in evidence as probably bone spurs were also noted posteriorly. After an apparent follow up attendance which noted the right knee pain that had been experienced, there is no evidence of any symptoms having been experienced to the right knee, any treatment to the right knee or any restriction in Mr Loader's ability to work thereafter until 7 November 2023. Mr Loader's description of the sometimes heavy and repetitive work that was undertaken by him, for RPA, between about February 2023 and 6 November 2023 was not challenged. As noted by Mr Richter in his closing submission for RPA, and supported by Mr Colgrave for the Corporation, after having completed a 12 hour work shift on 6 November 2023, Mr Loader has not returned to pre-injury work and has presented to doctors with ongoing pain and impairment of function of the right knee. Mr Loader underwent a total knee replacement surgical procedure, to the right knee, on 21 February 2025.
3. The Corporation and RPA did not dispute a worsening of the pre-existing right knee arthritic condition from on or about 7 November 2023. Neither challenged Mr Loader as to the effect of his ongoing symptoms and impairment upon his ability to work and nor did they dispute the appropriateness of the right total knee replacement procedure that was performed on 21 February 2025. They challenged compensability on the basis of a contention that Mr Loader had failed to discharge the burden upon him to prove, on the balance of probabilities, that he suffered, as claimed, an aggravation of the underlying degeneration caused by the work activity that he performed on 6 November 2023. Put another way, by reference to the text of s 7 of the RTW Act, they contended that Mr Loader had failed to prove that his claimed work injury arose out of or in the course of his employment with RPA and that, in addition, the employment was a significant contributing cause of the claimed work injury. In the event of a finding of a work injury by way of aggravation or exacerbation of a pre-existing degenerative condition of the knee, no propositions were put to Mr Loader or the doctors who gave evidence, nor were any submissions put to the Court, that either the total knee replacement procedure was not in consequence of the work injury or that there has been a limited duration or extent of any found work injury by reference to s 7(3) of the RTW Act.
4. Mr Loader did not assert a specific incident in a moment in time whilst working which immediately produced the claimed aggravation of pre‑existing degenerative changes to the knee. Rather, Mr Loader's case was that he was generally aching and in pain throughout his body at the end of his work shift on 6 November 2023, went home, after showering went to bed, and upon awakening the next morning became aware of right knee pain and gradually experienced swelling and he continued to experience pain thereafter. His case was that the aggravation injury as subsequently diagnosed, was caused by the work activity performed on 6 November 2023 and especially the strain on the knee by the repetitive getting in and out of the forklift. In the circumstances, it was not in dispute that the findings of fact as to the sequence of events and the onset and experience of symptoms, impairment, incapacity and need for treatment are matters relevant to the determination of the issue of compensability. RPA and the Corporation contended Mr Loader's evidence was not a sound basis for the findings of fact that need to be made. They went further and contended that not only had Mr Loader lied extensively when police investigated a double murder, in respect of which he was convicted, he remained at trial in this Court an "abject liar", a "consummate liar" and a "self-confessed, admitted complex liar".
5. This gives rise to a consideration of the approach to be taken to the evaluation of evidence where credibility is put in issue.

1. Ordinarily, outside of a courtroom, a person's assessment of the credibility of another is largely, and sometimes exclusively, an intuitive judgement. In a trial setting, there remains an element of an intuitive judgement but the process also involves reflection and analysis. The evidence is tested. The High Court in Fox v Percy[99] referred to 'the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses'.[100] The Court added that, as far as possible, conclusions should be reached 'on the basis of contemporary materials, objectively established facts and the apparent logic of events'.[101] The Court also noted that there had been scientific research that had cast doubt on the ability of anyone, including judges, to tell truth from falsehood accurately solely or mainly on the basis of appearances.[102] However, appellate courts have consistently recognised that factual findings may be affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. That includes findings of secondary facts which are based on a combination of such impressions and other inferences drawn from primary facts.[103]
2. Whilst the approach may vary to some extent given the particular circumstances of a case and the issues raised, in general, the evaluation of the credibility of a witness commences with an analysis of the inherent consistency of the evidence of that witness. If it contains internal inconsistencies, then the evidence is unlikely to be accepted as a whole. A question may arise as to the extent to which the totality of the evidence of that witness is affected by the internal inconsistency. At least part of the evidence is liable to be rejected.
3. The trial judge will consider whether there is consistency between the evidence given by the witness with undisputed facts, including facts set out in documents which are not challenged, facts which may have been admitted by the parties, matters of common knowledge or experience, and other findings of fact that may have been made.
4. The trial judge will consider the inherent probability or improbability of the version of events given by the witness.
5. Consistency with evidence given by other witnesses is another factor to be considered but that also necessarily involves a consideration of the reliability and sometimes credibility of the other witnesses by reference to the principles that I have referred to.
6. The trial judge may take into account observations made of the witness in the witness box and, if appropriate, in the body of the Court. By way of illustration, long pauses in the giving of evidence, not evident upon a reading of the transcript, and some physical manifestations, may be indicative of untruthfulness or uncertainty. Some manifestations may indicate to the trial judge of truthfulness. Care must be taken of forming an adverse impression as to the credibility of a witness by reference to the presentation in the witness box. A significant pause, before answering a question, particularly if a witness is being asked to recall an event that occurred a long time ago, may be indicative of careful reflection in order to give an accurate response. In the inherently stressful environment of a courtroom honest mistakes may be made. The use of an interpreter may affect the nuance, if not the express words, used by the witness as translated. Especially in this Court, where commonly witnesses of various cultural backgrounds give evidence, a trial judge will be aware that cultural factors may influence the presentation of the witness. Approached in this way, impressions formed and maintained where the trial judge reads, sees and hears the evidence as it unfolds in full and in sequence, with the ability for reflection in the course of the trial, may be a relevant, and sometimes important factor, for the trial judge to take into account, together with other evidence.
7. The rules of evidence have been formulated for the purpose of eliciting truth in a trial. The application of rules such as the rule in Jones v Dunkel and the rule in Browne v Dunn, may assist the Court in the evaluation of the evidence relevant to the determination of the credibility of a witness on a particular topic.
8. The factors may overlap in their consideration. Especially in the Tribunal where the Trial Book is prepared and typically tendered by consent at the commencement of the trial, the impression formed from the demeanour in the witness box may be in the context of other evidence already received of how the witness presented and acted or what was said or written on separate occasions.
9. Although ultimately in dissent as to the outcome, Kirby J in Whisprun Pty Ltd v Dixon[104] helpfully set out the approach when a court is considering lies told in the context of civil proceedings. His Honour stated:

Lies and civil proceedings: Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain it to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in the criminal trials, it is equally true in civil trials. What is important is not the proof of the untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.[105]

1. RPA and the Corporation sought to rely upon repeated lies in the course of a criminal investigation of a double murder more than 20 years earlier as a basis for this Court concluding Mr Loader is, now, an abject liar. As observed by Kirby J in Zoneff v R[106] 'lies, or suggested lies, are no strangers to criminal trials'.[107] Where lies are told, there may be a number of reasons for the telling of those lies. As a result, principles have been developed in the criminal law to address where lies may be indicative of a consciousness of guilt.[108] Where, in the criminal law, a distinction has been drawn between "credibility lies" and "probative lies", it has been accepted that even so‑called credibility lies may, according to their content, affect the credibility of an accused's evidence and thus the weight that a jury may give to other testimony of the accused. Such lies may appropriately give rise to scrutiny with more care to be given to other testimony given by the accused.[109]
2. In this case, the lies told by Mr Loader in the police investigation and at the criminal trial were in the context of an investigation concerning a double murder. Mr Loader was aware that a conviction would have seen him gaoled for decades. It provided a powerful motive for his lies. He admitted to this Court he did murder the two men and said the lies told were to avoid a conviction.

1. Mr Loader is required to prove, on the balance of probabilities, the criteria set out in s 7 of the RTW Act for a work injury to be found by the Court. Section 7 provides, relevantly:

(1) This Act applies to an injury if (and only if) it arises from employment.

(2) Subject to this section, an injury arises from employment if -

(a) in the case of a physical injury - the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury; and

(b) in the case of a psychiatric injury -

(i) the psychiatric injury arises out of or in the course of employment and the employment was the significant contributing cause of the injury; and

(ii) the injury did not arise wholly or predominantly from any action or decision designated under subsection (4).

(3) In connection with the application of subsection (2) to an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury (a prescribed event) -

(a) in the case of an injury other than a psychiatric injury - employment must be a significant contributing cause of the prescribed event; and

(b) in the case of a psychiatric injury -

(i) employment must be the significant contributing cause of the prescribed event; and

(ii) the prescribed event must not arise wholly or predominantly from any action or decision designated under subsection (4),

and then the injury is only compensable to the extent of and for the duration of the relevant aggravation, acceleration, exacerbation, deterioration or recurrence.

1. I addressed the relevant legal principles to be applied for the test of causation by reference to s 7(2) of the RTW Act in Gooch v Return to Work Corporation of South Australia (Gooch).[110] As noted earlier in these reasons, whilst the claim in this case is on the basis of an aggravation or exacerbation of a pre-existing degenerative condition of the right knee, no additional issue was raised by reference to compensability to the extent of and for the duration of any found aggravation or exacerbation under s 7(3) of the RTW Act. In the circumstances of the analysis in Gooch, I summarise the relevant principles as follows:
   1. The scientific approach to causation has been observed to be different from the legal concept of causation.[111] In March Mason CJ observed that in science the concept of causation has been developed in the context of developing phenomena by reference to the relationship between conditions and occurrences whereas, in law, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. Causation is a question of fact to be determined applying common sense to the facts of each particular case.[112] That identifies the approach but the test in a statutory scheme such as the RTW Act is by reference to the text of the relevant provisions.
   2. A worker must establish firstly that an injury arises out of or in the course of employment. They are disjunctive. The worker is not required to prove both. If either is established, secondly the worker must prove that the employment was at least a significant contributing cause of the injury claimed.[113]
   3. The term "in the course of employment" focuses upon a temporal alignment between the work and the injury and does not, of itself, contain a causative element.[114]
   4. The term "arising out of employment" does involve a causative element. Causation, at that level, will be established if the fact of being employed in a particular job caused, or to some material extent contributed to, the injury. Once a degree of contribution is proven, it will be considered a material contribution unless the circumstances come within the exception principle de minimis non curat lex.[115]
   5. The requirement that the employment be a significant contributing cause of the claimed work injury will be satisfied if employment was an important or influential cause. That requires an evaluative judgement on the part of the decision-maker.[116]
   6. The evaluation is to be undertaken upon the whole of the evidence. The cause or connection may be established even where the medical evidence alone establishes only the possibility of a relevant connection and not a likelihood thereof.[117]
   7. Where direct proof is not available it may be sufficient if the circumstances appearing in evidence give rise to a reasonable and definite inference but they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a matter of conjecture.[118]
   8. The drawing of an inference requires objective facts from which other facts may be reasonably inferred. A question to be asked is whether on the basis of the primary facts it is reasonable to draw the inference.[119]
   9. Causation is a question of fact[120] and is to be assessed in a practical and robust manner.[121]
   10. At all times the burden of proof is upon the worker to prove his case and if the case is left in doubt as to whether the conditions of compensability are fulfilled or not then the worker has not discharged the onus which lies upon him.[122]
2. Where a work injury has been proved, the test to recover the cost of medical expenses actually incurred or to obtain an order that authorises the payment of medical expenses to be incurred, in accordance with s 33 of the RTW Act is different. Sub-section 33(1) provides that a worker is entitled to be compensated for costs of services described in sub-section (2) that are reasonably incurred by the worker in consequence of having suffered a work injury. Sub-section 33(2) sets out the classes of expenses treated as medical expenses for the purposes of the provision.
3. In Return to Work Corporation of South Australia v Roe (Roe),[123] the worker required a total knee replacement surgical procedure to treat a work injury to that knee. The medical opinion before the Court was that the worker required a total hip replacement surgical procedure in order to have a successful outcome of the left total knee replacement procedure. There was no work injury to the hip. The Full Bench held that the worker was entitled to recover the cost of the total hip replacement surgery if he was able to demonstrate that the need for that procedure was in consequence of the work injury to the left knee, regardless of whether there had been a work injury to the left hip. In Curyer v Department for Child Protection,[124] the Full Bench followed the approach of the Full Bench in Roe and stated the term "in consequence" in sub-s 33(1) involves a less stringent test than the common law test of causation.[125] That is in circumstances of the worker already haven proven a work injury by reference to the criteria set out in s 7.

Mutuality and the entitlement to weekly payments

1. Both RPA and the Corporation submitted that in the event of a finding of a work injury resulting in an incapacity for work, Mr Loader would still not be entitled to weekly payments because of a breach of the obligation of mutuality. The concept of mutuality and how it may give rise to a discontinuance of weekly payments under the RTW Act was addressed by the Court of Appeal in Department for Child Protection v Morris (Morris).[126] Some of the analysis relates to the legal principles generally associated with the concept of mutuality, some of the analysis relates to its application generally under the RTW Act, and some is to be understood in the context of what the plurality referred to as "unusual circumstances".[127]
2. Ms Morris had been employed by the Department for Child Protection (the Department). The Department discontinued her weekly payments after she was found guilty to trafficking in methylamphetamine and after she pleaded guilty to attempting to dissuade a witness from giving evidence. Subsequently, a further determination was issued by the Department on the basis that Ms Morris had been dismissed from her employment for serious and wilful misconduct within the meaning of s 48(2)(e) of the RTW Act. Both at first instance, and upon appeal to the Full Bench of this Tribunal, it was held that although the conduct of Ms Morris constituted a breach of the obligation of mutuality, her weekly payments could not be discontinued because of a finding of no work capacity at the time the notices were issued.
3. The Court of Appeal addressed the development of the obligation of mutuality in workers compensation law in Australia. The Court referred to the judgment of the High Court in RJ Brodie (Holdings) Pty Ltd v Pennell.[128] There, the High Court construed s 11(2) of the Workers Compensation Act 1926 (NSW) which provided:

An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for work.

Upon any failure by such employer to provide suitable employment as aforesaid the worker's incapacity for work shall be deemed it to be total, and he shall be compensated accordingly.

1. In analysing the legal effect of the provision, the High Court stated:

... Employment is not a commodity which can be provided merely by an offer; it can in strictness be provided only by the employer and employee entering into and performing their obligation under a contract of service and this involves the co-operation of both employer and employee. There can, of course, be no "failure" on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee's conduct is inconsistent with the necessary degree of co-operation on his part. Such would be the case where the employee has undertaken full-time employment with another employer so long as such employment continues, or, where the employee moves his residence to a place so remote from the employer's place of business as to be quite incompatible with employment by that employer. Likewise, it would seem, the position would be the same where after his partially incapacitating injury the worker suffers further injuries or sickness resulting in total incapacity for any form of work. It must be remembered that not only is the obligation to provide suitable employment a continuing one but there must also be a continuing failure to provide suitable employment in order to entitle a worker to continuing benefits pursuant to s 11(2) and, in our view, there cannot be a continuing failure where the circumstances are such that it can be seen that throughout any relevant period the employee is not ready, willing or able to enter the employ of the pre-injury employer.

Whether or not that there has been any such failure in relation to any period during the continuance of the partial incapacity is, of course, a question of fact to be determined in the light of all the circumstances including the situation of the worker. If throughout any such period he is engaged in activities which would have made it impossible for him at the same time to have performed the duties of an employment with his former employer there cannot be said to be a failure on the latter's part to provide suitable employment...[129]

[emphasis added]

1. In Morris, after referring to those passages, the plurality observed that the High Court was concerned with the concept of employment that required the cooperation of both the employer and employee. Their Honours went on to refer to the particular circumstances of an employee because the Court was there addressing the conduct of Ms Morris. It is clear, however, that the concept of mutuality, as the word suggests, involves the cooperation of both employer and employee.[130] A breach of mutuality may also be the effect of actions of the employer.
2. The plurality went on to address authorities that considered conduct independent of any injury which could be regarded as inconsistent with the degree of cooperation that is essential to an effective working relationship.[131]
3. Their Honours also addressed, in some detail, whether the principles related to mutuality could have application where there is a finding that the work injury has given rise to a total incapacity for work. It is not necessary to refer to those reasons as that issue does not arise in this case, however it was concluded that a breach of mutuality by a worker may give rise to a discontinuance of weekly payments notwithstanding the work injury giving rise to a total incapacity for work.

1. As noted earlier in these reasons, s 48(2)(g) of the RTW Act provides for a discontinuance of weekly payments where the worker is, without the Corporation's consent, residing outside of the State or absent from the State for more than two months in any continuous period of 12 months.
2. Section 97 of the RTW Act sets out the decisions that are reviewable by the Tribunal. Sub-section 97(j) refers to "a decision to review, vary, discontinue or suspend weekly payments under Part 4 Division 4 Sub‑division 2, Sub-division 3 or Sub-division 4". Section 48 is found in Part 4 Division 4 Sub-division 4 of the RTW Act.
3. Neither s 48 nor s 97 set out any factors for the Tribunal to consider in determining whether the consent should be given. Part 3 of the Legislation Interpretation Act 2021 (SA) sets out general interpretive provisions. Section 14 provides that it is the interpretation that best achieves the purpose or object of the Act that is to be preferred to any other interpretation. That is in the context of the orthodox and well established approach to statutory construction which involves a consideration of the text, in context, and taking into account the legislative purpose or object of the Act.[132]
4. The main objective of the RTW Act is set out in s 3(1) which provides:

(1) The object of this Act is to establish a scheme that supports workers who suffer injuries at work and that has as its primary objective to provide early intervention in respect of claims so as to ensure that action is taken to support workers -

(a) in realising the health benefits of work; and

(b) in recovering from injury; and

(c) in returning to work (including, if required, after retraining); and

(d) in being restored to the community when return to work is not possible.

1. Sub-section 3(2) then sets out other objectives that apply in connection with sub-s (1). That includes providing a reasonable balance between the interests of workers and the interests of employers. An important objective, as set out in the title to the RTW Act, is to return injured workers to work, noting that may require retraining. Section 15 refers to obligations imposed upon workers and s 17 refers to obligations imposed upon employers in order to achieve, relevantly, the objective of a return to work. Those provisions refer to early intervention by the Corporation in providing recovery and return to work services. Section 18 imposes a duty upon an employer from whose employment a work injury has arisen to provide suitable employment to the injured worker in so far as is reasonably practicable. Section 43 refers specifically to the return to work obligations of the worker who has a current work capacity which includes making reasonable efforts to return to work in suitable employment.
2. Part 3 of the RTW Act relates to early intervention, recovery and return to work. It contains its own object in s 23 which provides:

(1) The object of this Part is to establish a system that seeks to ensure that a worker who suffers a work injury -

(a) achieves the best practicable levels of physical and mental recovery; and

(b) returns to the worker's pre-injury work or, if that is not reasonably practicable, is in any event restored to the workforce and the community in a timely, safe and durable way.

(2) Without limiting subsection (1), the aim is -

(a) to intervene and provide services under this Part as early as is reasonably practicable after a worker suffers a work injury; and

(b) in connection with paragraph (a) -

(i) to return the worker to work in the worker's pre-injury duties; or

(ii) if it is not reasonably practicable to return the worker to work in the worker's pre-injury duties - to return the worker, either temporarily or permanently, to other suitable duties with the worker's pre-injury employer; or

(iii) if subparagraphs (i) and (ii) are not reasonably practicable - to return the worker, either temporarily or permanently, to work with another employer; or

(iv) if subparagraphs (i), (ii) and (iii) are not reasonably practicable - to maximise the worker's independent functioning as a member of the community; and

(c) to ensure that any employer, worker or other person involved in a recovery or return to work process cooperate to achieve the object referred to in subsection (1).

(3) This Part may apply to a worker even if it has not been finally established that the worker's injury is a work injury.

1. Section 25 of the RTW Act addresses recovery/return to work plans. Sub-section 25(1) provides that where it appears that a worker is (or is likely) to be incapacitated for work by a work injury for more than four weeks, the Corporation must ensure that a recovery/return to work plan is prepared for the worker.
2. By their text individually and construed together, these provisions refer, relevantly, to a system that has the objective of returning an injured worker back to work where the work injury results in an ongoing incapacity for work. Ideally, that is a return to work with the pre-injury employer and, if necessary, in suitable employment. If that cannot be achieved then the objective is to return the injured worker, where possible, back to work but with another employer. The system involves the cooperation of both employer and worker where the Corporation is expected to be proactive in its approach.
3. Section 26 of the RTW Act refers to return to work coordinators who have a function of assisting workers, employers and the Corporation in achieving, relevantly, a return to work. Sub-section 26(2) provides that a coordinator must be based in South Australia.[133]
4. Relevant to the issue raised in this case, the reference to obtaining consent from the Corporation in s 48(2)(g) concerns the extent to which residing outside of the state may impede or adversely affect the ability of the Corporation to develop recovery/return to work plans and achieve a successful and sustained return to work.
5. That does not mean that impact upon a return to work is the only consideration, or in every case the dominant consideration, as to whether consent should be given. A differently worded provision of the former Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act), was construed by the former Workers Compensation Appeal Tribunal In the matter of an appeal by ATTILIO CAVUOTO, worker, against the decision of a REVIEW OFFICER made on the 22nd day of March, 1991, which also concerns THE CORPORATION (BRAMBLES SECURITY SERVICES LTD), employer (Cavuoto).[134]
6. In that case Mr Cavuoto injured his lower back in the course of his employment and had a resultant incapacity for work. He advised the Corporation of his intention to visit Italy for a holiday. The Corporation gave notice that his weekly payments would be suspended if he went as it considered that the trip would impair the prospects of his rehabilitation. It referred to s 41 of the WRC Act. Section 41 provided that where a worker who had suffered a compensable disability and was receiving weekly payments was to be absent from Australia for a period in excess of 28 days then the worker was required, at least 28 days before leaving Australia, to give the Corporation prescribed details of the proposed absence. Sub‑section 41(2) provided:

(3) Where the Corporation is of the opinion that the absence may impair the prospects of the worker's rehabilitation, it may, after giving the worker at least 14 days' notice of its intention to do so, suspend or reduce the weekly payments to the worker.

The Tribunal (led by Judge McCusker) observed the decision of the Corporation was amenable to review by the Tribunal and that the provision provided a power of a discretionary nature so that the principles stated in House v The King[135] applied.

1. The Tribunal traversed the expert medical opinion as to the nature and severity of the impairment arising from the compensable injury as it related to aspects of rehabilitation proposed by the Corporation and which it considered would be adversely impacted by the travel overseas. The Tribunal also referred to Mr Cavuoto's personal circumstances related to the proposed travel. It had been planned for at least a year, that he had been anxious to return to work following his lower back injury but that such a return did not eventuate. The Tribunal then stated:

We are of the conclusion that the discretion is intended to be exercised in accordance with the context and purpose of the provisions in section 41(2). If, given that the balance of interests in a given case, the impairment of the prospect of the worker's rehabilitation outweighs other considerations, then the Corporation can enforce its right to suspend the payments. We say this because there may be circumstances, which we believe would be within the contemplation of the legislation, where it would be unreasonable to give priority to the rehabilitation:- (i.e. if it meant major economic loss or denied ability to attend to significant personal matters such as a bereavement or an illness of a family member). We think it implicit that the power is intended to be exercised reasonably...[136]

1. That approach is consistent with other authority that where a power is conferred by statute and the statute is silent as to the exercise of that power then, as a matter of practice, the common law rule applies that the party conferred the power will act reasonably in its exercise.[137]

1. The principle (rule) in Jones v Dunkel was addressed in Barclay v Nyrstar Port Pirie Pty Ltd.[138] I summarise the principles relevant to the issues as raised in this case, as follows:
   1. Evidence given may be more readily accepted where it is left uncontradicted.[139]
   2. Any inference favourable for a party where there was a ground in the evidence, may be more confidently drawn when a person presumably able to point the true complexion on the facts relied on as the ground for the inference has not been called as a witness by another party and the evidence provides no sufficient explanation of the absence.[140]
   3. Although the circumstances in Jones v Dunkel involved a party failing to call evidence to rebut an inference that otherwise may be drawn against that party, a similar principle applies to a party who bears either an ultimate or an evidentiary onus to prove something.[141]
   4. There are three conditions for the application of the rule in Jones v Dunkel. The first is that the witness not called would be expected to be called by one party other than the other. The second is that the evidence of that witness would elucidate a particular matter, which is a live matter at trial. Thirdly, the absence is unexplained.[142]

The applicability of discontinuance grounds when determining a claim for compensation

1. RPA and the Corporation submitted that the grounds of discontinuance of weekly payments set out in s 48 of the RTW Act also have application in determining a claim to be entitled to weekly payments. Reliance was placed upon the decision of Hannon DPJ in Sacco. The decision of Hannon DPJ on this point was affirmed upon appeal.[143] The Full Bench reasoned:

In Roberts v GM Holden Ltd it was held in the Workers Compensation Tribunal, in reliance upon the Full Court judgment in Workers' Rehabilitation and Compensation Corporation v Thuy Thi Vu, that it was permissible to rely upon a breach of mutuality that would have supported a discontinuance in making a primary determination limiting the acceptance to a closed period ending on the day of the breach. In so concluding, the Tribunal rejected the worker's submission that what was required was a determination accepting the claim followed by a notice of discontinuance that relied upon the breach. A similar approach was taken in the Workers Compensation Appeals Tribunal in Robert John Hagean v WorkCover Corporation (Hallett Brick Transport Pty Ltd). Although these cases were decided under the Workers Rehabilitation and Compensation Act 1986, there is no material difference in the relevant provisions and we see no reason to depart [from] the approach taken in those cases.

It is true that in all of these cases the determination was for a closed period of weekly payments whereas in this case the learned Deputy President relied upon the breach to defeat Mr Sacco's claim for weekly payments altogether. As a matter of principle, there is no material difference whether the breach defeats the claim ab initio or at a later time.[144]

1. The analysis to the approach to the evaluation of evidence given at trial where lies are raised, demonstrates that the approach of both RPA and the Corporation has been erroneous. For RPA's counsel to state at trial that Mr Loader is an "abject liar", before any cross‑examination of him, and for counsel for the Corporation to state, in closing submissions, "once a liar, always a liar", are to indicate an approach inconsistent with that required to be undertaken.
2. Although RPA and the Corporation have referred to Mr Loader continuing to have not just a propensity for telling lies but that he has been a consummate and abject liar, there was no evidence of lies and no claim of lies having been told by Mr Loader in the period of more than 20 years from when Mr Loader was convicted of the double murder and 6 November 2023. Most of that time was spent under close supervision in serving a custodial sentence. The Parole Board would have reviewed his conduct in prison in the context of his offending and the circumstances related to his trial. The issue that is raised in this case is the approach to be taken in addressing the evidence that Mr Loader gave to this Court, upon oath, where he sought orders that would provide him with monetary compensation, against the background of the lies he told in the past relating to a criminal investigation into a double murder.
3. I have approached his evidence by reference to the principles set out earlier in these reasons for the evaluation of credibility in evidence given to a court. The extent of the lies told in the criminal investigation and trial appropriately gives rise to a careful scrutiny of the evidence given to this Court. That is especially in circumstances of Mr Loader having repeatedly lied at his criminal trial.
4. There was no significant inconsistency internally in the evidence that was given by Mr Loader to this Court. He remained consistent throughout lengthy cross-examination, on the topics of the lies he told during the criminal investigation and in the evidence he gave at the criminal trial, the symptoms, impairment and periods of a quiescent state of the right knee between 2010 and 6 November 2023, the work activity that he performed at RPA, what he experienced at the end of the working shift on 6 November 2023, what he experienced on the morning of 7 November 2023, his exchanges with Mr Anto and Ms Jubb, the circumstances of the work activity performed from 15 December 2023 and his evidence to the Court of the histories that he provided to the doctors that he consulted.
5. There was no improbability associated with the evidence that was given by Mr Loader. He readily admitted the nature and extent of the lies that he told in relation to the criminal matter. His belief that the work activity of 6 November 2023, and especially going up and down a forklift some 200 times in the course of the shift, was a likely cause of his symptoms, impairment, incapacity and need for treatment that he noted from 7 November 2023, was consistent with the evidence received by the Court from the orthopaedic surgeons who gave oral evidence. The record of his oral report to the case manager "Jimmy" referred to earlier in these reasons included a remarkably frank disclosure of pre-existing arthritis and his lack of certainty as to the cause of his claimed work injury, to the point of a disclosure that perhaps his age was the cause. I had the opportunity to hear the audio recording of the conversation. There was nothing to suggest a version of events with a view to selectively presenting detail to encourage an acceptance of a claim that did not have merit and for the purpose of financial gain, as was raised by RPA. His evidence of his exchanges with Mr Anto and Ms Jubb was not inherently improbable but will require an analysis of the evidence of the three witnesses. His evidence of what happened in the workplace from his return on 15 December 2023 did not change.
6. RPA appeared to submit that there was something inherently improbable associated with Mr Loader telephoning RPA on the morning of 7 November 2023 to advise that he was sick and would not be attending at work but not telephoning the medical clinic to make a telehealth consult until later that afternoon. The immediate telephoning of the employer was consistent with a conscientious employee immediately notifying his employer so that he could be covered for that work shift. It is not surprising, that an injured worker may initially wait some hours to see whether the injury settles before making an appointment to see a doctor. There was no evidence of a requirement to produce a medical certificate confirming an unfitness for work for one day. On Mr Loader's evidence, the pain and swelling increased in time, warranting the medical appointment that was made. Contrary to the submission of RPA I am not troubled by the timing of those telephone calls. What is more relevant and significant is that Mr Loader did call the medical clinic that day, did have a telehealth consult arranged for 8 November 2023 and, as confirmed by Exhibit A10, his telephone provider at the time was Optus, the telehealth consult did not proceed on 8 November 2023 as a result of the outage that day, Mr Loader did call the medical clinic that day and the telehealth consult did proceed on 9 November 2023. The medical certificate issued that day by Dr Jobair referred to the unfitness for work being attributable to "right knee disabilities".
7. There was, on its face, inconsistency between the evidence given by Mr Loader to the Court as to when he first noted symptoms specifically to the right knee following the work activity the previous day and what was recorded by Dr Morris in his letter to Dr Jobair.
8. Dr Morris did record in his letter to Dr Jobair dated 15 December 2023 that it was during the repetitive movement of getting on and off the forklift multiple times a day that Mr Loader exacerbated his right knee condition. The letter and the oral evidence of Dr Morris indicated he understood the pain to the right knee was experienced and noted by Mr Loader during the work shift. The letter was between two treating doctors. No contemporaneous note was referred to either in the letter or in oral evidence. The precise mechanism of injury, which assumes importance in the determination of potential entitlements to compensation, may not have the same importance when considering medical management. Dr Morris was questioned about his recollection of what he was told at the time of the consultation, and he told the Court that he had difficulty remembering the details of a consultation that had taken place some two years earlier.

There is evidence before the Tribunal that prior to the consultation with Dr Morris on 15 December 2023, Mr Loader had explained to "Jimmy" of Gallagher Bassett, by telephone, that he attributed his right knee injury to the work activity of 6 November 2023 but did not raise pain specifically to the right knee at that time. When Gallagher Bassett wrote to Dr Edirisinghe, by letter dated 2 April 2024, seeking a medical report, it did not suggest Mr Loader's claim was on the basis that he was aware of pain specifically to the right knee whilst at work on 6 November 2023. It noted Mr Loader's understanding of having sustained a right knee injury as a result of constantly getting in and out of a forklift in the workplace on 6 November 2023, but as to the timing of the onset of pain the letter only referred to it being of "gradual onset" and that Mr Loader had sustained a previous injury to the knee. To the extent Mr Loader was taken to the notes of his consultations with Dr Jobair, the certification of 13 November 2023 referred to a stated cause of "getting in and out of forklift". It was not inconsistent with the evidence given by Mr Loader to the Court. Similarly, the record of consultation with Dr Jobair on 23 November 2023, as addressed earlier in these reasons, is not inconsistent with the evidence given by Mr Loader. 9. Upon the totality of the evidence I find that Mr Loader told Dr Morris that he injured his right knee and he attributed that injury to the work activity of 6 November 2023 and especially the repeated activity of getting in and out of the forklift. It is clear that Dr Morris did not obtain and record a comprehensive history of what happened and I find that he inferred, erroneously, from the limited information he obtained from Mr Loader, that he was aware of pain specifically to the right knee as he was performing the work activity on 6 November 2023. 10. There were differences in recollection between Mr Loader and Mr Anto as to what was said in the course of the telephone discussion that took place at approximately 6:55am on 7 November 2023. Mr Anto's affidavit addressing the content of that telephone discussion was prepared more than a year later. Mr Loader's first affidavit was approximately 11 months later. In Watson v Foxman[145], McClelland CJ in Eq addressed human memory of conversations and stated:

... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.[146]

I have been mindful of those observations when considering the differences in evidence between Mr Loader and Mr Anto and the areas of clear conflict between the evidence of Mr Loader and Ms Jubb that will be addressed below.

1. On Mr Anto's account, little was said by Mr Loader in the course of the telephone discussion on 7 November 2023. There was nothing unusual about the call and, understandably, in cross-examination, stated that he could not recall whether Mr Loader referred to his knee. The absence of any notes of the telephone conversation is also suggestive of an unremarkable call. Both Mr Loader and Mr Anto remembered Mr Loader stating that he would not be attending at work that day because he was "sick". The evidence proves that the reason for the non-attendance was pain and a gradual onset of swelling affecting the right knee. What happened was of more significance in the life of Mr Loader. It is likely that Mr Loader made reference to his right knee, but in the context of saying that he was "sick" the reference was not construed at the time by Mr Anto as being related to work and due to the passage of time he forgot the reference to it. That is also consistent with Mr Anto's evidence that had he understood the absence from work to be as a result of a work injury, then he would have made a report at the time to Ms Jubb or someone else in her office. I find that Mr Loader told Mr Anto that he was sick and did refer to his knee as being the reason for the absence from work that day.
2. There were significant differences, and sometimes conflict, between the evidence given by Mr Loader and the evidence given by Ms Jubb on a number of topics. Some of the evidence given by Ms Jubb was internally inconsistent or inconsistent with other evidence including documentary evidence. Some of the evidence, in context, was implausible. On some topics, the evidence was lacking in detail.
3. A significant area of conflict related to the provision of what was referred to as light duties. Upon her evidence, Ms Jubb was the only person within RPA authorised to approve the duties to be performed by Mr Loader upon his return to work in December 2023, and following his claimed work injury. That was not corroborated by any other evidence. Her evidence was that the duties allocated by her were administrative in nature, and at all times Mr Loader had been allocated sufficient administrative tasks so that there was no need for Mr Loader to look for work duties elsewhere, including in the workshop. Her evidence was that Mr Loader lacked interest in the administrative tasks and that Mr Loader acted contrary to instructions given. Detail of what tasks were allocated, by whom and subsequently not carried out, was lacking. In her affidavit affirmed on 16 December 2024, Ms Jubb referred generally to "light duties such as filing, scanning and admin work". The evidence was unclear as to whether Ms Jubb identified the relevant tasks and allocated them directly to Mr Loader, or whether Mr Loader or others were expected to identify the tasks to be performed. Over the period of some weeks between Mr Loader's return to work on 15 December 2023 and the termination of his contract of employment by RPA effective from 22 February 2024, there was no evidence of any SMS text message, email, letter or any other documentation or notation of Ms Jubb indicating any concern in relation to the work activity that was being performed by Mr Loader apart from an email to Gallagher Bassett on 10 January 2024 that I will address below. Ms Jubb was unable to explain why that was so. I note there was a written record of a discussion and outcome on 1 November 2023 following concerns about Mr Loader's work performance as a supervisor. That meeting was referred to, in the written record, as a "HR meeting".
4. The text message from Ms Jubb to Mr Loader of 10 January 2024, which advised Mr Loader that light duties were not available, was inconsistent with Ms Jubb's evidence on this topic. In her oral evidence, she sought to explain this inconsistency and stated that she was "probably" scared given the history of Mr Loader having been a double murderer. That statement was made towards the end of Ms Jubb's evidence and without any prior indication of such a fear. When asked by me, earlier in her evidence, whether there was any reason why she did not confirm with Mr Loader that he had not been performing light duties as allocated by her to him despite those duties having been reiterated on multiple occasions, she stated that she did not have a reason. There was no reference to fear at that time. Whilst she was giving evidence about what she described as a "hostile" relationship between Mr Loader and herself since the claimed work injury and I asked whether in those circumstances she had given thought to someone else dealing with Mr Loader, her response did not refer to any emotional impact upon herself. Rather, she referred to it not being a "great situation" for Mr Loader.
5. Ms Jubb gave a different version to Gallagher Bassett in an email transmission that she sent to that entity on 10 January 2024 in comparison to what she stated to Mr Loader that day. There, she did refer to light duties no longer being made available to Mr Loader on the basis that Mr Loader had not been following the light duties allocated to him. It is relevant to have regard to what was happening at the time Ms Jubb sent the text messages to both Mr Loader and Gallagher Bassett on 10 January 2024. In his affidavit of evidence sworn on 21 October 2024, Mr Loader referred to the impact on his mental well-being brought about by, in part, the exchanges that he had with Ms Jubb. He stated that on 10 January 2024 he took a day of personal leave. He referred to having attended a mental health clinic and obtaining a sickness certificate. It was approximately 30 minutes after providing that certificate to Ms Jubb that he received the text message from her advising that light duties would no longer be made available and that he should not return to work unless he was able to work at full capacity. He was clearly deposing to a connection between the provision of the certificate and the text message received approximately 30 minutes later. Ms Jubb did not address that matter either in her affidavit or oral evidence. It follows that she did not expressly deny a connection.
6. I find that the withdrawal of light duties on 10 January 2024 was triggered by Mr Loader provided his certificate of sickness that day. There is no evidence of Ms Jubb seeking to have had any discussion with Mr Loader upon receipt of that medical certificate. In what was described by Ms Jubb in her evidence as a hostile relationship, it is likely she became annoyed and decided it was convenient to tell Mr Loader that light duties were no longer available and that it was in the best interests of RPA that, in the communication to Gallagher Bassett, Mr Loader be blamed for the withdrawal of duties.
7. It is inherently improbable that Ms Jubb, a human resources manager, would have had the level of concern expressed in relation to the claimed non-performance of light duties and the duties performed in the workshop and the cutting down of vegetation, over weeks and to the point of removing the light duties and subsequently terminating the contract of employment, without any written record of her concerns during the period or other corroborating evidence or the provision of a warning letter that if he did not follow her directions then he was liable to be dismissed. It is significant that as recently as 1 November 2023 Ms Jubb had a meeting with Mr Loader about his work performance as a supervisor and there was a written record of that meeting.
8. I reject Ms Jubb's evidence that the text message sent to Mr Loader on 10 January 2024 was motivated by her being scared of him. Apart from the reasons I have already indicated, if she had been scared then I would have expected a firmer statement than a reference to "probably". Her statement, in all the circumstances, was convenient and artificial.
9. I find that Ms Jubb failed to properly implement a return to work plan for Mr Loader to undertake. The evidence supports a finding of Ms Jubb having done little more, upon Mr Loader's presentation for work in December 2023, than having informed Mr Loader and co-workers in the administrative area of RPA that Mr Loader had been cleared to return to work on administrative type tasks. It was then left largely to Mr Loader and others to ascertain specific tasks that may have been able to be made available to Mr Loader to perform. That is consistent with Mr Loader's evidence and is consistent with the events that occurred which included Mr Loader seeking modified work elsewhere, speaking to Mr Partington and having tasks in the workshop allocated to him by Mr Partington. It is also consistent with Ms Jubb's evidence in her affidavit sworn on 5 September 2025 of the demands of her role. She stated she has no administrative staff or assistants, the factory has three shifts over 24 hours and that there are 64 staff. This was expressed to be the reason why she did not have the time to disclose and produce timesheets sought by Mr Loader. The trial did not start until more than a month later. In paragraph 94 of these reasons I referred to Ms Jubb's evidence of having complained to Gallagher Bassett that she found it frustrating for her to find duties for Mr Loader to perform where there were employees paid to undertake those duties.
10. Whilst Ms Jubb referred to a purported strict adherence to the content of Work Capacity Certificates as provided by Mr Loader, in cross‑examination she accepted the statement in the Worksite Assessment Report dated 4 December 2023 that Mr Loader could undertake machinery work on reduced hours when tolerances improved, was based upon information that she provided to Mr Vorrasi, the author of the document. There was no explanation by Ms Jubb, in the circumstances, as to why, if the text of the Work Capacity Certificates was an issue, where Mr Loader by his actions had demonstrated a willingness and tolerance to undertake tasks in the workshop, without incident and objectively he was being permitted to do so by Mr Partington, she did not suggest to Mr Loader that he obtain a certificate which expressly referred to his suitability to work with machinery. There was no evidence of and no explanation for not raising concern, if she had any, with either Gallagher Bassett or Mr Vorrasi. In a hearing de novo in the Court, there was no affirmative medical evidence that the activity performed by Mr Loader, outside of administrative tasks, were unsuitable or that the performance of those tasks exposed Mr Loader to an unnecessary or higher risk of further injury.
11. In making findings in relation to the withdraw of light duties, I have had regard to the legal principle, as stated by Lord Mansfield in Blatch v Archer,[147] that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. I have also had regard to the principle that a party asserting an affirmative case has the onus of proving that case.[148] Here it was the case, particularly for RPA, that the performance of the tasks in the workshop was unauthorised and inappropriate. RPA bore the legal onus of proving it's case that Mr Loader's conduct amounted to a breach of mutuality. In the circumstances of the conflict in evidence between Mr Loader and Ms Jubb upon the topic of the allocation of light duties and his work activity in the workshop, RPA failed to call Mr Partington to give evidence in circumstances of an acknowledgement by Ms Jubb that he continues to be employed by RPA, and no one else from the office area of RPA was called to give evidence of their observations of the allocation of tasks in the office to Mr Loader and his performance of those tasks. No evidence was given to explain why no one else was called to corroborate the version of events expressed by Ms Jubb. Ms Jubb accepted a proposition that Ms Shirl Stewart may have had a role in finding suitable duties. Both affidavits of evidence of Mr Loader were provided to RPA before trial and RPA was aware of serious conflict in the evidence of Mr Loader and Ms Jubb in multiple areas, relating to the topic of light duties. In all the circumstances, including those I will address below, Mr Loader would not have been expected to have called witnesses from RPA. I accept the evidence of Mr Loader of the belittling treatment he received generally from RPA and the questioning of the seriousness of his claimed injury and restrictions.
12. In relation to Mr Partington, there is a particular application of the legal principle in Blatch v Archer, commonly referred to as the principle (or rule) in Jones v Dunkel.[149] That is, the evidence given by Mr Loader in relation to his interactions with Mr Partington and the approval given by Mr Partington for Mr Loader to perform light duties in the workshop, may be more readily accepted where it has been left uncontradicted by Mr Partington and where it could reasonably have been expected that Mr Partington would have been called to give evidence by RPA if he could have given evidence to contradict the evidence of Mr Loader on that topic. I accept the evidence of Mr Loader on this topic. I do not accept the evidence of Ms Jubb that she was the only person authorised to allocate light duties to Mr Loader. In any event, I find the duties were authorised by Mr Partington, at no time did Ms Jubb say to Mr Loader that only she was authorised to allocate light duties to him and it was reasonable for Mr Loader to act upon his belief that he was suited for the duties he performed and were authorised by Mr Partington.
13. Mr Loader also gave evidence of statements made by Mr Partington that indicated he was dismissive of Mr Loader's impairment and incapacity. Given RPA's contrary position, it would have been expected that RPA would have presented evidence from Mr Partington, noting he was still employed by RPA at trial and no evidence was presented that he was not otherwise available, to contradict the evidence given by Mr Loader. I accept the evidence of Mr Loader of the statements made by Mr Partington to him. I accept Mr Loader's evidence that he heard comments made by Mr Partington and Ms Jubb about him and which he honestly construed as being critical of him. It is not necessary to make a finding as to whether the comments were intended to be critical as any finding on that question would not alter the outcome of the proceeding. It would also not be appropriate as Mr Loader was not specific as to what he believed he heard whilst they were in the background and not talking directly to him.
14. The evidence did not refer to any further attendance at work at RPA by Mr Loader after the text message of 10 January 2024. On 18 January 2024 Gallagher Bassett issued the determination that rejected Mr Loader's claim for compensation and shortly thereafter, by letter dated 15 February 2024, Mr Loader's contract of employment was terminated by Ms Jubb on behalf of RPA effective from 22 February 2024. When it was put to Ms Jubb that there was no reference to a lack of performance as a reason for the termination of employment in that letter, she agreed. When it was then put that there was no reference to a lack of performance of light duties in any other letter, she initially said that there was, but then retracted from that position. In her affidavit of evidence affirmed on 16 December 2024, she stated that the basis of the termination of employment was Mr Loader's unfitness for the inherent requirements of his position of employment. She did not say, either in the affidavit or in her oral evidence, that she did not refer, in that letter, to Mr Loader's failure or refusal to undertake light duties of an administrative nature because she was scared to do so.
15. I find Ms Jubb was frustrated by the process of being expected to allocate light duties to Mr Loader. I find that others within the office were not providing Mr Loader with sufficient tasks within the office to keep him occupied and that he sought alternative duties in the workshop. After more than 20 years serving a custodial sentence, Mr Loader had a desire to be reintegrated in the community and to remain gainfully employed. His actions were consistent with a desire to achieve the objects of the RTW Act following his work injury. There was no evidence that the performance of those duties caused Mr Loader to experience an increase in symptoms. There were Work Capacity Certificates that did not include those duties and the appropriate course of action was for Ms Jubb to communicate with Dr Jobair or ask Mr Loader to do so and ask Dr Jobair if it was appropriate to alter the certificate given Mr Loader's belief that they were suitable and his performance of those duties without incident. The duties performed were within the scope of the plan that had been agreed to by Mr Loader and RPA.
16. I am concerned by aspects of the evidence of Ms Jubb on the topic of what occurred around the time of the Christmas party in 2023. In his affidavit of evidence sworn on 21 October 2024, Mr Loader made two specific allegations. The first was that Ms Jubb was going around the office taking photos of all the staff members but deliberately excluded him. The second involved quotations of a verbal exchange between Ms Jubb and Mr Loader concerning Ms Jubb not wanting him to attend the Christmas work party. In her affidavit affirmed on 16 December 2024, Ms Jubb refers to the paragraph in which those assertions are made by Mr Loader but does not specifically address the assertions. She generally denies deliberately excluding Mr Loader "from any staff activities or at all". In her oral evidence she did deny telling Mr Loader not to attend at the Christmas function. Her explanation as to what occurred was to the effect that Mr Loader chose not to attend because, in circumstances of a hostile environment between Mr Loader and Ms Jubb "it was very obvious he didn't want to be at work". There was no evidence of Mr Loader not having attended at work, when scheduled to do so, between 15 December 2023 and 9 January 2024, and no other evidence that supported Ms Jubb's assertion that Mr Loader did not want to be at work. On his own initiative, he sought work in the workshop where I am satisfied that administrative tasks were not being allocated to fill his day.
17. In relation to the topic of the photographs taken, in her oral evidence Ms Jubb stated that photos were taken of only some employees at the time. She said those were the employees getting rewards for their efforts for the year. [150] Witnesses are expected in affidavit evidence to not only tell the truth but to tell the whole truth. There was no evidence to explain why that was not referred to in either of the two affidavits of evidence of Ms Jubb. In the context of Mr Loader's evidence that he was the only employee who did not have his photo taken, Ms Jubb did not identify any other employee, present at the time, who did not have their photograph taken. No other employee gave evidence to corroborate the evidence of Ms Jubb where it was known, upon receipt of the affidavits of evidence of Mr Loader, that this was a topic of conflict. My impression of Ms Jubb, as she was giving her oral evidence on this topic, was that she was giving evidence that was contrived.
18. I reject the evidence of Ms Jubb and accept the evidence of Mr Loader relating to events leading to the Christmas party. I find that Ms Jubb, consistent with the hostile relationship between her and Mr Loader, as she saw it, decided to deliberately exclude Mr Loader from the Christmas party and, as a result, declined to take his photograph. It was part of the belittling treatment of Mr Loader and inconsistent with the suggested fear when forwarding the text message to Mr Loader on 10 January 2024.
19. I find the evidence of Ms Jubb on the topic of whether, at a time she had influenza, she told Mr Loader that if it were COVID she would have coughed over him to be unpersuasive. The allegation was specific and serious. It was set out in Mr Loader's affidavit sworn on 23 May 2025. If it were not true, I would have expected Ms Jubb, and indeed any human resources manager confronted with such a serious allegation, to have promptly and firmly denied it. She would have been entitled to file an answering affidavit. Ms Jubb provided her second affidavit months later. It was sworn on 5 September 2025. She confined herself to the issue of further disclosure of timesheets. There was a significant amount of further oral evidence in chief but the serious allegation was not raised with her by Mr Richter.[151] When asked by Mr Durkin if she recalled making the statement or alleged statement her response was "No". It was only in re-examination, with an inviting question by Mr Richter, that the allegation was denied:

Mr Richter: Is it a case you don't remember if it happened, or is it the case that it didn't happen.

Witness: That did not happen.

1. I reject the evidence of Ms Jubb and accept the evidence of Mr Loader on this topic. It is another topic of evidence inconsistent with the explanation she was probably scared of Mr Loader for the content of her text to Mr Loader on 10 January 2024.
2. In making the findings of fact where the evidence of Mr Loader and the evidence of Ms Jubb have been in conflict, I have taken into account their demeanour in the witness box. The trial took place in a relatively small courtroom and the witness box is situated within a few metres of where the trial judge sits. Both witnesses gave oral evidence in chief and were cross-examined in some detail. I had a good opportunity to see and evaluate them as they gave their evidence. Mr Loader presented as a large, strongly built, intelligent and articulate person with a history many years earlier of extreme violence. He referred to himself now as a reformed and a religious person. This Court is not in a position to make any finding in that regard and nor is it necessary to do so to address the issues raised and to make the findings required. He answered all questions put to him calmly, promptly, directly, fully and consistently. He freely admitted the duration and extent of his right knee problems prior to 6 November 2023. At times he was self-deprecating.
3. Ms Jubb generally presented as a confident and assertive witness but when pressed in relation to the topics I have addressed and where I have had concern about the reliability, and at times credibility, of her evidence, she looked uncomfortable and at times did not fully address what was being put to her. On a few occasions I felt it necessary to seek to clarify her evidence. She presented as, and the analysis of her evidence establishes, an unsatisfactory witness who appeared more strongly motivated to advance the best interests of RPA, as she saw it, than to assist the Court.
4. In conclusion on the topic of reliability and credibility, wherever there has been inconsistency between the evidence given by Mr Loader and the evidence given by Ms Jubb, I prefer and accept the evidence of Mr Loader and reject the evidence of Ms Jubb. The evidence more broadly of Mr Loader is a sound basis for findings of fact. The evidence of Ms Jubb is not. It is not necessary, to determine Mr Loader's claims to be entitled to compensation, to make a finding as to whether Ms Jubb deliberately misled the Court. That may be relevant to the appropriate order as to costs[152] but the parties will be heard if that is an issue, and addressed at that time if necessary.
5. There was substantial consistency between the evidence given by Dr Morris and the evidence given by Dr Edirisinghe in relation to the issues raised for their consideration and to be determined by the Court. Both doctors accepted the radiological report of the MRI performed on 6 January 2023 set out the degeneration within the right knee that was evident at the time. Neither doctor expressed the view that the reference to a loose body or bodies posteriorly was of clinical significance. Both expressed the view that the more likely pathophysiological explanation for the symptoms experienced following the work shift of 6 November 2023 is related to more general degenerative changes.
6. Either expressly, or by inference, both doctors gave evidence consistent with a finding that the degree of degeneration within the right knee that predated 6 November 2023 was such that at some point in time in the future it was likely that Mr Loader would come to need a total knee replacement surgical procedure. Neither doctor disagreed with Mr Loader's case that if the right knee had settled after the experience of pain in January 2023 so that he was able to work, in moderately heavy work activity, between that time and 6 November 2023, without further symptoms, then it was possible that he may not have come to need such surgery in the future or, in the alternative, at the time that it was undertaken. Neither doctor thought it likely that the bone spur body detected in the MRI of 6 January 2023 had moved and was causative of the symptoms experienced by Mr Loader following his work shift of 6 November 2023. Dr Edirisinghe explained the specific locking of the knee that would be evident upon clinical examination by reference to that theory, was not present. No other doctor expressed a contrary opinion and no other doctor expressed a clinical finding of locking of the knee.
7. The trial book contained a report of an x-ray and MRI of the right knee performed on 8 December 2023, being a month after the claimed work injury. It again showed a partially ossified intra-articular body measuring 14mm in the posterior region, as did the MRI of 6 January 2023. It was not put to the doctor and not submitted to the Court that the MRI and x‑ray of 8 December 2023 demonstrated any movement of a loose body in comparison to the MRI of 6 January 2023 or was in a position to explain Mr Loader's presentation clinically at the time. As explained by Dr Morris, one radiological investigation only produces a static picture and does not prove a loose body moving within the knee.
8. Whilst Dr Morris recorded a history of the knee "catching", there was no evidence of a clinical finding by Dr Morris consistent with the "locking" referred to by Dr Edirisinghe in his evidence. The evidence of Mr Loader, which has been accepted, is not consistent with a finding of ongoing locking of the knee. In the end, there is no pathophysiological basis for a finding that a loose body was in any way causative of the pain, impairment and incapacity experienced since 7 November 2023. The purported theory advanced by RPA and supported by the Corporation was speculative. Their submissions on this topic are rejected. I find the bone spur body referred to in the radiological evidence had no causal contribution to the symptoms, impairment and incapacity experienced by Mr Loader since his work shift of 6 November 2023.
9. The effect of the evidence of both doctors was an underlying vulnerability to experience further symptoms and impairment, but that something significant and more than just resting or sleeping was required. Two main possibilities were referred to. The first was repetitive activity putting strain on the knee such as getting up and down repetitively from a forklift or an event that involved a twisting action of the knee. As noted earlier in these reasons, whether the uncontested evidence of Mr Loader having gone up and down the forklift some 200 times over 12 hours in the course of his work shift on 6 November 2023 was a significant contributing cause of his claimed work injury is to be determined upon the totality of the evidence. I remind myself that the relevant test is whether the employment was at least a significant contributing cause and not whether it was the sole or most significant contributing cause. In this case, it is also not a binary question of whether the injury was caused either by the repetitive work activity or by a twisting action of the right knee in the time from the end of the work shift until he first noticed right knee symptoms upon awakening on 7 November 2023. One possibility to consider is whether each may have been a significant contributing cause. Another is whether there may have been a twisting event whilst working on 6 November 2023. Before analysing the evidence and making further relevant findings, I also remind myself that, at all times, the burden of proving the relevant causal connection rests with Mr Loader.
10. The findings that follow are to be understood in the context of the analysis of the evidence and findings that have been made earlier in these reasons. In evaluating the probability of the possible causes of the onset of pain noted from 7 November 2023 and the swelling that developed, there are some further factual findings that should be made.
11. I have accepted that the evidence of Mr Loader is a sound basis for findings of fact. Whilst areas of moderate to severe degenerative arthritis were developing, over time, within the right knee, following the arthroscopic surgery which culminated with the second procedure on 6 February 2012, the evidence indicates Mr Loader was largely asymptomatic, with some brief temporary flare ups, until in or about January of 2023. He was able to lead an active lifestyle without restriction. The evidence indicates, symptomatically, the episode which gave rise to the MRI investigation of 6 January 2023 was short lived. Over the several months he worked for RPA to 6 November 2023 Mr Loader was asymptomatic and was not aware of any impairment of function of the right knee. He was able to undertake repetitive moderately heavy work, without restriction, and over long work shifts of 12 hours or so. I find that the work activity performed by Mr Loader did put strain on his knees. This included, during the periods that he operated a forklift, going up and down the forklift multiple times in the course of a working shift. I have accepted the medical evidence that such activity could cause an aggravation or exacerbation of Mr Loader's pre-existing degenerative condition of the right knee. I have accepted the expert evidence that an event involving twisting of the knee could also cause an aggravation or exacerbation of those degenerative changes. I find that there was some degree of vulnerability of an aggravation or exacerbation occurring from those potential causes but the history that I have set out is not consistent with a high degree of vulnerability associated with a high probability of a serious aggravation requiring ongoing treatment and producing ongoing impairment and incapacity.
12. Whilst there is uncontroverted evidence of significant strain upon the right knee during the long work shift of 6 November 2023 and especially whilst going up and down the forklift some 200 times, there is no direct evidence of an event that involved twisting of the right knee either then or in the time from the end of the shift and upon awakening the following morning. I accept that an event involving twisting of the right knee may have occurred and not have been noticed by Mr Loader in the period of time between the end of his working shift and when he first noticed the symptoms to the right knee on the morning of 7 November 2023, but the absence of any affirmative evidence that it did occur is relevant to the degree of likelihood of it having occurred.
13. It is also necessary to consider, if such an event were to have occurred, whether it would be more likely to have happened whilst at work on 6 November 2023 or during the period from when his shift ended and he awoke the next morning. In relation to his level of activity from the end of the shift and when he awoke the following morning, he rode his motorcycle some 6.3km, stopped at a maximum of two traffic lights, went up three steps, showered, went to bed and then woke up the next morning in pain. I accept the evidence of Dr Morris, as set out in paragraph 123 of these reasons, of the expectation of some degree of trauma or some degree of repetitive strain to explain the injury that was sustained by Mr Loader. Noting I have accepted the evidence of Mr Loader that he was not aware of an event that involved twisting, as a matter of common sense and experience, repeatedly going up and down levels, like the forklift, or more commonly a ladder, involving a movement backwards, some 200 times, is more likely to result in an event of awkward landing and twisting of the knee, than placing both feet down whilst riding a motorcycle or moving forward to climb three steps to residential premises, or walking on a level plane in his home, or sleeping in bed.
14. The timing of when the symptoms were noted needs to be considered. Mr Loader first noted specifically right knee pain on the morning of 7 November 2023 having completed his 12 hour work shift the night before. That is to be understood in the context of Mr Loader's evidence, which I accept, that he was generally sore throughout his body at the end of the working shift. He also referred in his affidavit evidence to pain throughout much of his body. That is not surprising. He was taken, in cross‑examination, through the work shifts and days that he did not work leading to 6 November 2023. He also referred to the pain specifically to the right knee, from when he first noted it upon awakening, gradually becoming worse and swelling developing.
15. Both Dr Morris and Dr Edirisinghe were taken, in the course of their oral evidence, to the history given by Mr Loader to the Court of work activity and, onset generally of symptoms immediately after the shift and then the noticing of pain specifically to the right knee the following morning. Both doctors maintained that the work activity, and especially the climbing in and out of the forklift some 200 times in the course of the work shift, was consistent with causing the aggravation or exacerbation injury as diagnosed by them. I am not persuaded that there was a twisting event causative of the injury sustained but if I am wrong about that I would find it more probable that the twisting event occurred in the course of employment on 6 November 2023.
16. I find Mr Loader has discharged the burden upon him and has proven on the balance of probabilities that the work activity of 6 November 2023, which included repetitively going up and down a forklift over a work shift of some 12 hours, was at least a significant contributing cause of an injury to the right knee. I find that injury to have been a serious and ongoing aggravation of a pre-existing degenerative condition of the right knee. It is a work injury for the purposes of the RTW Act which I find has caused Mr Loader to experience ongoing pain, some swelling of the right knee, an ongoing need for treatment, and an ongoing incapacity for work. The incapacity for work has generally related to moderate and heavy work that put strain upon the right knee. The level of incapacity is likely to have been total for a time following his total knee replacement surgical procedure.
17. I find the right total knee replacement surgical procedure referred to earlier in these reasons was in consequence of the work injury within the ambit of s 33(1) of the RTW Act. Whilst it is likely that at some point in time in the future Mr Loader would have required such surgery, in any event, as the doctors explained, the most significant factor for determining whether to perform such a procedure is not the radiological evidence of the degree of degeneration affecting the knee but rather the symptoms experienced by the patient. I have found that Mr Loader was asymptomatic in relation to the right knee over a period of several months, whilst working for RPA, and leading to his work injury of 6 November 2023. I have found that, following the work injury, Mr Loader continued to experience pain and impairment of function of the right knee. I find that at the time the surgery was performed, the pain, impairment and incapacity experienced by Mr Loader arose from his work injury and, together with the extent of the demonstrated degeneration within the knee, made it reasonable for him to undergo the surgery that was performed and to incur the costs reasonably associated with such a procedure.
18. Prima facie, these findings give rise to Mr Loader having an entitlement to recover the cost of other medical expenses reasonably incurred by him to treat his work injury and weekly payments for the incapacity for work that has been proven. However, both RPA and the Corporation have raised whether Mr Loader, by his conduct, has breached mutuality and thereby disentitled him to those weekly payments or whether, in failing to obtain the consent of the Corporation before he travelled to Sydney, he has thereby been disentitled to weekly payments.
19. The submission of RPA, supported by the Corporation, of a breach of mutuality was based upon a contention that Mr Loader deliberately refused to perform the light duties that he was directed to perform by Ms Jubb, and which had been made available for him to perform. My findings of fact are inconsistent with that contention. I have rejected the contention. The submission was also based upon a contention that only Ms Jubb had the authority to allocate light duties to Mr Loader. I have rejected that contention and have found that Mr Partington had at least ostensible authority to allocate duties within the workshop to Mr Loader. I have rejected Ms Jubb's evidence of directions to Mr Loader to only perform administrative tasks and to not work in the workshop. It was contended by RPA that Mr Loader's contract of employment was appropriately terminated because the refusal by Mr Loader to perform the administrative tasks allocated to him amounted to serious and wilful misconduct. My findings are to the effect that Mr Loader, at all times, acted appropriately.
20. It is RPA, through the actions of Ms Jubb, who acted in a manner inconsistent with the degree of cooperation in the employment under the concept of mutuality. I have found that Ms Jubb failed to properly implement the provision of administrative duties for the time that Mr Loader was expected to be at work upon his return to work on 15 December 2023. I refer to my findings as to the manner in which Ms Jubb and others poorly treated Mr Loader in the workplace. If a Work Capacity Certificate was required by RPA before formally approving the performance of duties in the workshop, as were being performed by Mr Loader without incident, then it failed to cooperatively approach the issue with Mr Loader in the manner that I have referred to earlier in these reasons. Ms Jubb falsely represented to Gallagher Bassett that Mr Loader had refused to perform light administrative duties. That conduct is inconsistent with the degree of cooperation required of an employer to achieve the objective of a successful and sustained return to work and ideally with the pre-injury employer, and inconsistent with the concept of mutuality between the employer and the scheme.
21. Apart from one day where I accept Mr Loader was unfit for work because of the impact of his interactions with Ms Jubb upon his mental well-being, whenever Mr Loader was scheduled to attend at work to perform duties, following his work injury, he did so and undertook duties allocated to him, either by way of administrative duties, or in the workshop. There is no evidence that RPA was unable to continue to provide the employment duties that were being performed by Mr Loader in the workshop on an ongoing basis. It was not put by Mr Richter to either Dr Morris or Dr Edirisinghe that Mr Loader was medically unsuited to the performance of those duties and they not did otherwise give evidence to that effect. It was RPA that terminated the contract of employment and withdrew work duties. I have found the reason given by Ms Jubb was not a valid reason. No other valid reason was proven by RPA.
22. RPA sought to rely upon Mr Loader travelling to and then residing outside of the State as evidence of his unavailability to undertake suitable employment in this State and, consequently, amounting to a breach of mutuality. I reject that submission. Firstly, by its conduct, RPA breached the obligation of mutuality. The conduct culminated with the termination of the contract of employment which became effective on 22 February 2024. Mr Loader did not travel interstate until four months later on 24 June 2024. The evidence was that no further duties were ever offered by RPA. It made no attempt to restore mutuality. Insofar as the concept of mutuality involves the scheme,[153] there was no evidence from the Corporation of it having implemented, noting the finding of this Court of a work injury and an ongoing incapacity for work, a recovery/return to work plan after the duties were withdrawn by RPA on 10 January 2024, or indeed any contact with Mr Loader. Given Mr Loader's demonstrated desire to be reintegrated into the community, including by way of employment, it is probable that had RPA or the Corporation raised with Mr Loader the provision of suitable employment with RPA, and had RPA restored mutuality, Mr Loader would have returned to this State and would have continued to cooperate to achieve a return to work, to the extent his incapacity for work permitted at the time.
23. I accept the submission of Mr Loader that neither the Statement of Issues and Contentions of the Corporation nor the Statement of Issues and Contentions of RPA raised, as an issue to be determined at trial, whether the absence of obtaining consent could defeat Mr Loader's claim to be entitled to weekly payments by reference to the text of s 48(2)(g) of the RTW Act. To the extent the contentions raised that, by moving interstate, Mr Loader was disentitled to receiving weekly payments, it was in the context of the issue raised of a breach of mutuality. It would be procedurally unfair for his claim to be defeated by reference to the application of the criteria in s 48(2)(g) of the RTW Act. The failure to provide Mr Loader with notice of that case, both at the time of the determination of his claim for compensation and also in the Statements of Issues and Contentions of the Corporation and RPA, deprived Mr Loader of the opportunity to address the matter prior to trial. He may have obtained further evidence in relation to the circumstances to be considered in the exercise of the discretion. He may have put that further evidence to the Corporation and to the Court. Nevertheless, in the event of an appeal, it is appropriate to address the submissions raised by RPA and the Corporation, on this issue, on their merits.[154].
24. The reasoning with respect to the contention of a breach of mutuality on the part of Mr Loader disentitling him to weekly payments, is also relevant to a consideration of the contention that Mr Loader travelled to and has resided interstate without the consent of the Corporation contrary to s 48(2)(g) of the RTW Act and that should disentitle him to weekly payments. As noted in the analysis of this provision, it is the totality of the circumstances that is to be taken into account in determining whether consent should have been given. Firstly, there was an application for consent. I accept that the application was made on the day of departure but that is not, in itself, a reason for the Corporation not to have considered and determined the application. It inappropriately failed to do so and to communicate a decision to Mr Loader. As noted above, at the time, his employment had been terminated by RPA, there was no recovery/return to work plan and Mr Loader was continuing to experience significant ongoing pain, impairment and incapacity as a result of his work injury. His symptoms, impairment and level of incapacity continued and was likely at a level leading to the total knee replacement surgical procedure in 2025 where Mr Loader was no longer able to cope with his symptoms and impairment. Those factors, in combination with his criminal history and his absence from the workforce for more than 20 years, probably placed him in the "odd lot"[155] category pending the outcome of the surgery. Noting a first day of incapacity of 7 November 2023, in accordance with s 4(11) and s 39 of the RTW Act, unless a seriously injured worker, Mr Loader's entitlement to weekly payments ended on 6 November 2025. Upon the evidence before the Court, I find Mr Loader's travel to and residency in Sydney did not prejudice achieving of the objects of the RTW Act, as they were being approached by RPA and the Corporation in this case.
25. I accept Mr Loader's evidence that he was motivated to move to Sydney, in these circumstances, to care for his elderly mother. His personal circumstances are to be considered. RPA sought to rely upon the evidence of Mr Loader that he had sought approval from the Department for Correctional Services on 30 September 2023. That is evidence a move to Sydney was being contemplated. He did not move until some nine months later and in the circumstances I have referred to what took place over that period.
26. In all the circumstances, consent should have been given and, upon review, the Court provides that consent. The objects of the RTW Act, addressed earlier in these reasons, continue to operate. Should RPA seek to restore mutuality and/or the Corporation now implement a recovery/return to work plan then Mr Loader will be required to comply with his obligations, as set out in the RTW Act. Whether that means a return to South Australia at some point in time in the future, if he were to be entitled to continue to receive weekly payments as a seriously injured worker, would depend upon the circumstances at that time.
27. It follows that Mr Loader has proven his claim to be entitled to both weekly payments and medical expenses from 7 November 2023. The Corporation advanced its submissions in relation to the average weekly earnings rate, which was stated to be in the order of $1,800 gross per week. The parties will be afforded an opportunity to reach agreement as to the average weekly earnings rate or to have the matter relisted for further evidence on that point. The parties will also be afforded an opportunity to reach agreement as to the quantum of the medical expenses reasonably incurred by Mr Loader in consequence of his found work injury and liberty is granted to the parties to apply for a further hearing on that point if agreement is unable to be reached.

1. The determinations of the respondent dated 18 January 2024 and 1 February 2024 are set aside.
2. The applicant is entitled to payment of medical expenses in accordance with s 33 of the Return to Work Act 2014 (SA) (the RTW Act) for medical expenses reasonably incurred in consequence of a work injury being an aggravation of pre-existing degenerative changes of the right knee sustained on 6 November 2023 and weekly payments in accordance with s 39 of the RTW Act from 7 November 2023 for incapacity for work arising from the work injury in accordance with s 39 of the RTW Act and subject to any assessment or determination that may be made in the future as to whether the applicant satisfies the criteria to be treated as a seriously injured worker.
3. Liberty is granted to the parties to apply for the Tribunal to fix the quantum of any claimed medical expense or the average weekly earnings rate.
4. The applicant is entitled to interest payments in relation to his entitlement to past weekly payments but not in relation to the interim weekly payments received. Leave is granted to fix the amount in default of agreement.
5. Any application to fix the quantum of the average weekly earnings rate or interest is to be made within 14 days of the delivery of these reasons for decision and orders.
6. Any application for an order as to the costs of representation is to be made within 14 days of the delivery of these reasons for decision and orders.

[1] Sub-section 98(2) of the RTW Act provides that the Tribunal will conduct a review of a reviewable decision as a hearing de novo.

[2] Exhibit A4 letter from RPA to Mr Loader titled "Termination of Employment - Incapacity".

[3] [2022] SAET 64.

[4] Ibid [153]-[159] with footnotes omitted.

[6] Section 8(a)(ii) South Australian Employment Tribunal Act 2014 (SA).

[7] Sub-section 9(1) of the RTW Act provides that, subject to the section, an injury is not compensable under the RTW Act unless it is established on the balance of probabilities that it arises from employment. The other sub-sections do not alter the application of s 9(1) in this case.

[17] This entry related to a presentation on 15 August 2011.

[18] The line of cross-examination appeared to be in the context of RPA's case that in the past there had been entry in a medical record of a history of onset right knee symptoms without a cause having been identified by Mr Loader.

[19] Tr 37 l 27. At the commencement of the trial, and prior to the cross-examination of Mr Loader, Mr Richter asserted Mr Loader is an "abject liar".

[31] The entry in the record of the attendance post-MRI on 7 February 2023 was not with a doctor as it refers to an intended referral to a medical officer.

[45] Tr 120 l 20. The basis of the serious assertion was not put to Mr Loader. Why Mr Loader would lie in conceding he did not notice pain specifically to the right knee at work and did not notice pain to the knee until he awoke the following morning, was not addressed by RPA.

[46] It is evident from the totality of the evidence Mr Jubb made a mistake and the relevant discussion was on 13 November 2023. The evidence of Mr Loader and the dates upon the relevant medical certificates indicate the date was 13 November 2023. Nothing turns on that error.

[47] A1 Trial Book p 19 [16]. Although not corrected it is clear from Exhibit A4, being the letter sent at the time, the relevant year was 2024.

[48] There was no evidence of a change in position in not producing the further time sheets sought by Mr Loader.

[62] Tr 160 l 25-Tr 161 l 13. There was no clarification of what she meant when she referred to having 'consulted legal'.

[72] Ms Jubb's evidence was that she is the only human resources officer and the evidence established she was not at work that day and was in error in referring to a discussion with Mr Loader that day about the appropriate medical certificate.

[98] [2017] SAET 130.

[99] [2003] HCA 22; (2003) 214 CLR 118.

[100] Ibid 129 [30] (Gleeson CJ, Gummow and Kirby JJ).

[103] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55].

[104] [2003] HCA 48; (2003) 200 ALR 447.

[105] Ibid [119] (footnotes omitted). For an example of a finding of compensability in circumstances of lies told by a worker to a workers compensation tribunal in this State by application of the principles see Sellars v Wesfarmers Limited [2016] SAET 9.

[106] [2000] HCA 28; (2000) 200 CLR 234.

[108] See, for example, Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210 (Deane, Dawson and Gaudron JJ).

[109] Zoneff v R supra [59] (Kirby J). The judgment of the Court of Criminal Appeal in R v Loader [2004] SASC 234 (Duggan, Besanko and Anderson JJ) is an important judgment of this State as to the distinction between "credibility lies" and "probative lies" and the permitted use of such lies in a criminal trial.

[110] [2020] SAET 27.

[111] March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 509 (Mason CJ) (March).

[113] See, for example, Henderson v Commission of Railways (WA) (Henderson) [1937] HCA 67; (1937) 58 CLR 281; Hatzimanolis v ANI Corporation Ltd (Hatzimanolis) [1992] HCA 21; Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd (Badawi) (Allsop P, Beazley, McColl, Basten JJA and Handley AJA) [2009] NSWCA 324 [72].

[114] Henderson, Hatzimanolis and Badawi supra.

[115] See Nunan v Cockatoo Island Docks & Engineering Co Ltd [1941] NSWStRp 23; (1941) 41 SR (NSW) 119, 124 (Jordan CJ); Badawi supra [75] (Allsop P, Beazley and McColl JJA).

[116] The State of South Australia v Roberts (Roberts) [2018] SASCFC 25 [101] (Parker J).

[117] Dahl v Grice [1981] VicRp 50; [1981] VR 513; Pham v Workers Rehabilitation & Compensation Corporation & Wingfield Heat Treaters (1995) 181 LSJS 241, 243, 246-247 (Olsson J).

[118] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5 (Dixon J). See also Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Seltsam Pty Ltd v McGuinness (Seltsam) [2000] NSWCA 29; (2000) 49 NSWLR 262; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152.

[119] Seltsam supra [88] (Spigelman CJ).

[120] Roberts supra [6] (Kourakis CJ); Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, [93] Kirby J, [148] Hayne J.

[121] Queen Elizabeth Hospital v Curtis [2008] SASC 344; (2008) 102 SASR 534 [44] (Gray J).

[122] Section 9 of the RTW Act. See also Pomfret v Lancashire and Yorkshire Railway [1903] 2KB 718, 721 (Collins MR); Gooch supra [72]-[85].

[123] [2020] SAET 105.

[124] [2022] SAET 26.

[125] Curyer supra [42] (Rossi DPJ (with whom Dolphin PJ and Clayton AuxJ agreed)). See also Skinner v Return to Work Corporation of South Australia (Costco Wholesale Australia Pty Ltd) [2020] SAET 130 [47] (Rossi DPJ).

[126] [2022] SASCA 131.

[127] Ibid [2] (Livesey P and Bleby JA).

[128] [1968] HCA 73; [1968] 117 CLR 665.

[129] Ibid 669-670 (Kitto, Taylor, Windeyer and Owen JJ).

[130] Morris supra [61] (Livesey P and Bleby JA).

[131] See, for example, Kelvinator v Jezior [1988] SASC 1156; (1998) 49 SASR 592, 597 (Cox J (with whom White and Prior JJ agreed)) and Morris [72] (Livesey P and Bleby JA).

[132] R v A2 [2019] HCA 35; (2019) 373 ALR 214 [32]-[33] (Kiefel CJ and Keane J).

[133] There are other objectives associated with early intervention including the provision of services to help a worker overcome or cope with an injury and restoring the injured worker more generally to the community. These reasons focus upon the issue raised by the parties relating to a return to work.

[135] [1936] HCA 40; (1936) 55 CLR 499, 504-505.

[137] Morgan v William Dixon Ltd [2012] AC 74, 78-79, followed in Hill v Workers Rehabilitation and Compensation Corporation (1997) 191 LSJS 300, 307 (Lander J (with whom Doyle CJ and Duggan J agreed)).

[138] [2022] SAET 92.

[139] [1959] HCA 8; (1959) 101 CLR 298 at 308 (Kitto J). See also Menzies J at 312 and Windeyer J at 320, 321.

[141] State Bank of NSW v Brown [2001] NSWCA 223; (2001) 38 ACSR 715 [104] (Hodgson JA (with whom Handley JA agreed)).

[142] Australian Securities and Investment Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 [449] (Austin J).

[143] Local Government Association Workers Compensation Scheme (City of Salisbury) v Sacco [2018] SAET 221 [50] (Gilchrist, Farrell and Kelly DPJJ).

[144] Ibid [50]-[51] (Gilchrist, Farrell and Kelly DPJJ) (footnotes omitted).

[145] [1995] NSWCA 497; (1995) 49 NSWLR 315.

[147] [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969.

[148] Phillips v The Commonwealth [1964] HCA 22; (1964) 110 CLR 347, 350 (Kitto, Taylor and Owen JJ) and for its application in the area of workers compensation, Martin v Employers Mutual Ltd [2012] SASCFC 36 [28] (White J (with whom Doyle CJ and Anderson J agreed)).

[152] Seeby v Workcover/Mmi Workers Compensation (Korvest Ltd) [2001] SAWCT 63 [10] (Jennings P, McCusker and Parsons DPJJ).

[153] WorkCover Corporation (Plas-Tec Pty Ltd) v Gregor [1994] SASC 5042; (1994) 62 SASR 283.

[154] Prince Alfred College Incorporated v ADC [2016] HCA 37 [9] (French CJ, Kiefel, Bell, Keane and Nettle JJ).

[155] See Bavcevic v The Commonwealth [1957] HCA 67; (1957) 98 CLR 296; Seal v Transfield Servies (Australia) Pty Ltd (2010) SASR 312 [193]-[195], [197]-[198] (Kourakis J); Lianos v Eastern Health Care Network [1999] VSC 307, [105], [109].