MARKS -v- COLES SUPERMARKETS [2021] WASCA 176 | Case summary

Court of Appeal (WA)|2021-10-08|Before: Quinlan CJ

1 In September 2017, the appellant, a worker in one of the respondent's supermarkets, reported experiencing persistent pain and altered sensation in her right arm. She ceased working for the respondent on 3 November 2017. An MRI scan in November 2017 revealed pathology in the appellant's cervical spine at C5/6 and C6/7. She was subsequently referred to a neurosurgeon, Mr Kern, who considered her complaints to be consistent with severe bilateral C6 and C7 radiculopathies (pinched nerves). The appellant underwent surgery on 13 June 2018, following which her symptoms substantially resolved.

2 The appellant applied for compensation under the Workers' Compensation and Injury Management Act 1981 (WA) (Act). On 18 June 2019, an arbitrator dismissed the application, on the ground that she was not persuaded that the appellant suffered an 'injury' for the purposes of the Act.

4 Before the hearing of the appeal to this court, the appellant indicated that she intended to challenge the correctness of this court's decision in Pacific Industrial Co v Jakovljevic.[1] In that decision, this court rejected the contention that the appellate body - then the Commissioner - could simply arrive at his or her own decision on the material, without any regard for the arbitrator's decision. In effect, this court held that an appeal against an arbitrator's decision under an earlier version of s 247 of the Act was an appeal by way of rehearing. On the appellant's application, this court sat a bench of five judges to consider the appellant's argument it should overrule Pacific Industrial.

5 At the hearing of the appeal, counsel for the appellant initially submitted that the decision was wrong, and that a District Court judge hearing an appeal from an arbitrator should simply reach the correct and preferable decision, without regard for the arbitrator's decision. However, in the course of the hearing, counsel for the appellant abandoned his challenge to the correctness of the decision in Pacific Industrial.[2] It is, to say the least, regrettable that counsel would advance such an argument and seek an enlarged coram only to abandon the argument at the appeal hearing. However, counsel was right to have abandoned the argument (albeit that counsel should not have requested the convening of an enlarged coram for it to be considered in the first place), as Pacific Industrial was correctly decided.

6 Nevertheless, it is apparent that the primary judge misapprehended the nature of the review which his Honour was required to conduct on an appeal under s 247 of the Act. The primary judge identified three errors of law in the arbitrator's reasons. At least one of those errors might have affected the arbitrator's credit-based factual findings, which the arbitrator relied on in rejecting the appellant's claim. The primary judge was not in a position to make the relevant findings himself, having not seen the relevant witnesses give their evidence. In these circumstances, the primary judge should have set aside the arbitrator's decision and remitted the application to be dealt with by a different arbitrator. The primary judge erred by in effect requiring the appellant to show that the arbitrator's decision would necessarily, as opposed to could, have been different had the error not been made.

7 For the following reasons, leave to appeal to this court should be granted and the appeal should be allowed. The primary judge's orders should be set aside. We would substitute orders allowing the appeal to the District Court, setting aside the arbitrator's decision and remitting the matter for determination by a different arbitrator.

8 Before turning to consider the circumstances of the present case, it is convenient to outline the relevant legislative provisions.

9 Under s 18(1) of the Act:

If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.

10 There is no issue that the appellant was a 'worker' and the respondent was her 'employer' for the purposes of the Act.

11 The term 'injury' is relevantly defined in s 5(1) of the Act in the following terms:

injury means -

(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or

...

(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree[.]

12 Section 5(5) of the Act requires that the following matters be taken into account in determining the matters referred to in par (d) of the definition of 'injury':

(a) the duration of the employment; and

(b) the nature of, and particular tasks involved in, the employment; and

(c) the likelihood of the ...recurrence, aggravation or acceleration of the disease occurring despite the employment; and

(d) the existence of any hereditary factors in relation to the ... recurrence, aggravation or acceleration of the disease; and

(e) matters affecting the worker's health generally; and

(f) activities of the worker not related to the employment.

13 Arbitrators are legally qualified public sector employees forming part of WorkCover's Arbitration Service.[3] Subject to the Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes in connection with a claim for compensation, or the liability to pay compensation, under the Act.[4]

14 The arbitrator to whom a dispute is allocated is to determine the matter or matters in dispute in accordance with the Act and the arbitration rules.[5]

15 Section 188 of the Act provides that the rules of natural justice do apply, and the rules of evidence do not apply, to the arbitration. It relevantly provides:

(1) An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.

(2) The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -

(a) is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and

(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

(3) An arbitrator may inform himself on any matter as the arbitrator thinks fit.

...

(5) To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.

16 Subdivision 3 of div 4 of pt XI contains detailed provisions for the conduct of the arbitration, including the reception of evidence.

17 Section 211(1) provides that, subject to the Act, an arbitrator shall make such decisions as the arbitrator thinks fit.

18 The following provisions of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) may also be noted:

58. Medical evidence

(1) Except with the leave of an arbitrator, any medical evidence of a medical practitioner must be given in writing and a medical practitioner may not be called to give oral medical evidence at a hearing before an arbitrator.

(2) An application for leave to call oral evidence from a medical practitioner must -

(a) be made not less than 14 days prior to the date set for the hearing; and

(b) state the grounds on which the leave is sought.

(3) An arbitrator must not give leave to call oral medical evidence unless the arbitrator is satisfied that the giving of the evidence will assist in the determination of a dispute in a manner that is fair, just, economical, informal and quick.

59. Medical reports

(1) Except with the leave of an arbitrator, in any proceeding -

(a) a medical report by a medical practitioner in a particular area of medical practice may not be lodged or admitted in evidence on behalf of a party to a proceeding if another medical report by another medical practitioner in that area of medical practice has been lodged or admitted in evidence on behalf of that party; and

(b) a medical report by a medical practitioner in a particular area of medical practice may not be lodged or admitted in evidence on behalf of a party to the proceeding if medical reports in 3 areas of medical practice have been lodged or admitted in evidence on behalf of that party.

(2) For the purposes of this rule, a medical report in more than one area of medical practice is to be taken to be a medical report in each of those areas of medical practice.

...

19 By application received by WorkCover WA on 23 April 2018 (Application), the appellant applied to have a dispute as to the respondent's liability to pay weekly payments and medical expenses arising out of an alleged injury to her cervical spine on 12 September 2017 determined by arbitration.[6]

20 On 18 June 2019, the arbitrator dismissed the Application, on the ground that she was not persuaded that the appellant suffered an 'injury' for the purposes of par (a) or par (d) of the definition of that term in s 5(1) of the Act.[7]

21 The arbitrator described the case advanced by the appellant in the following terms:[8]

[The appellant] contends that on 12 September 2017 she suffered an injury that had caused pain in her right wrist, elbow and shoulder and her neck, which pain was becoming bilateral and constituted an 'injury' for the purposes of s 5(1) of the Act because:

(a) the task of lifting crates of chickens and/or the task of sealing bags containing chickens caused sudden disc prolapses that constituted a personal injury by accident within the meaning of paragraph (a) of [the definition of 'injury' in] s 5(1) of the Act; and/or

(b) her work for the Respondent aggravated her pre-existing spondylosis, disc bulges (or protrusions) and/or disc prolapses in her cervical spine to a significant degree so as to constitute an injury within the meaning of paragraph (d) of [the definition of 'injury' in] s 5(1) of the Act.

22 The arbitrator described the appellant's claim that, while at work on 12 September 2017, she experienced pain and altered sensation in her right hand, wrist and elbow when she was closing the ziploc seals on bags containing chickens. The appellant claimed that her symptoms of pain in her right arm, wrist and hand worsened through the remainder of September and October 2017 such that she sought medical advice.[9]

23 The respondent's case was identified as involving a contention that the appellant's activities outside of work (specifically, an episode of gardening) rendered her pre-existing spinal condition symptomatic. The respondent contended that any symptoms the appellant experienced at work were merely a manifestation of that non-compensable injury. The respondent contended that the appellant had not discharged the persuasive burden of proving on the balance of probabilities that she suffered an 'injury' within the meaning of paragraph (a) and/or paragraph (d) of the definition of that term in s 5(1) of the Act.[10]

24 The arbitrator received witness statements and heard oral evidence from the appellant and some of the appellant's co-workers. The arbitrator's findings of primary fact were influenced by her assessment of the credibility and reliability of the evidence of those witnesses. In particular, the arbitrator found the appellant's evidence to be unreliable in various respects. The arbitrator found that the appellant was 'not a straight-forward historian in relation to relevant matters' and that her evidence was 'inconsistent, and in some respects nonsensical'.[11]

25 The arbitrator also received various items of documentary evidence, including medical reports from six medical practitioners who did not give any oral evidence in the proceedings.

26 The arbitrator made the following findings of primary fact.

27 The appellant was born in 1970. Before working for the respondent, she had an extensive work history in positions that are likely to have involved physical work, such as working in a plant nursery, as well as positions that required her to work while seated with a static posture, such as while working as a nail technician. The appellant had engaged in other activities that, over time, may have contributed to cervical spondylosis and/or disc protrusions or prolapses.[12]

28 The appellant worked for the respondent at its supermarket in Gosnells for a period of approximately 3 years. She first worked in the 'produce section' of the supermarket, then in 'night fill' restocking shelves after business hours, and finally in the 'delicatessen' as a delicatessen assistant.[13] She worked as a delicatessen assistant for 1.5 - 2 years.[14]

29 The arbitrator referred to the appellant's evidence as to the lifting of crates of eight chickens.[15] The arbitrator found that, in the course of her duties as a delicatessen assistant, the appellant was required to lift and carry containers of food, including chicken pieces. However, the arbitrator was not satisfied that the appellant was required to lift crates containing eight whole chickens. The arbitrator said that the evidence did not allow her to make a finding as to the maximum weight that the appellant was required to lift in the course of her duties.[16]

30 The arbitrator found that the appellant experienced symptoms of cervical radiculopathy on 25 August 2017 when she was attempting to open a bottle.[17]

31 The appellant was an enthusiastic gardener who had some 50 rose bushes in her garden. With her husband and adult son, the appellant performed gardening, including the spreading of a large amount of mulch, for several hours on the weekend of 9 - 10 September 2017. She experienced symptoms of radiculopathy on that weekend.[18]

32 The symptoms which the appellant noticed while mulching over the weekend of 9 - 10 September 2017 marked the onset of the pain and disability that was ultimately treated surgically by Mr Kern. The symptoms persisted beyond the weekend and caused the appellant pain and disability when she returned to work after the weekend. By that time, they had progressed to her elbow and had an immediate adverse effect on the appellant's capacity for work.[19]

33 During the week immediately following the weekend spent gardening, the appellant complained to three co-workers - Ms Arunkumar, Ms Jones and Ms Bozanich - about symptoms involving her arm which she thought may be related to gardening on a previous weekend.[20] She complained of elbow symptoms to Ms Arunkumar at the start of her shift on 11 or 12 September 2017 before the appellant had performed any work, including any sealing of chicken bags. At the appellant's request, Ms Arunkumar obtained a bandage from first aid supplies and wrapped the appellant's arm or elbow in the bandage.[21]

34 The appellant mentioned the onset of pain coinciding with gardening to Ms Jones on 12 September 2017, wondering whether the gardening had caused the onset of the symptoms.[22] Ms Jones also heard the appellant complain to a customer at the deli counter, a general practitioner called Dr Nathan, about having hurt her arm and wondering whether she had hurt herself gardening.[23]

35 The appellant did not move crates of chicken after she became symptomatic, and her colleagues undertook this task for her.[24] The appellant's colleagues either always or almost always carried out the appellant's chicken bagging duties after she became symptomatic such that she rarely, if ever, performed that task during this period.[25]

36 The appellant consulted her regular general practitioner, Dr Egesi, on 11 October 2017. His clinical notes recorded the appellant as complaining of pain to her right elbow and right wrist with distal tingling and burning. The clinical notes made no mention of any incident that had triggered or had temporally preceded these symptoms nor any incident that the appellant thought may have triggered her symptoms.[26]

37 On 31 October 2017, the appellant consulted Dr Nathan, the general practitioner to whom she had earlier spoken at the deli counter. Dr Nathan made a clinical note, which the arbitrator found to be an accurate record of what the appellant told him, that read:[27]

Had right elbow pain and wrist pain for 3 months now. Right elbow pains came on after mulching in garden and worsened during work at Coles.

38 The appellant did not perform any further work for the respondent after 3 November 2017.[28]

39 The appellant again consulted Dr Nathan on 3 November 2017 complaining of worsening elbow, wrist and shoulder pain. Dr Nathan arranged for an MRI scan of the appellant's cervical spine. On 9 November 2017, an MRI scan of the appellant's cervical spine demonstrated pathology at C5/6 and C6/7.[29] Dr Nathan reviewed the MRI scan report on 11 November 2017.[30] The MRI scan was reported to reveal:[31]

Moderate changes of cervical spondylosis, most severe at C5/6 C6/7. There is mild spinal canal stenosis at both levels with effacement at the ventral space. At C5/6, there is a superimposed 4 mm posterolateral protrusion with potential left C5 nerve impingement. Multilevel foraminal stenosis is present, most prominent on the right at C5/6 and C6/7 and on the left at C6/7.

40 Dr Nathan provided a first medical certificate under the Act on 12 November 2017, giving the date of injury as 12 September 2017 and a diagnosis of cervical spondylosis and radiculopathy.[32]

41 The appellant was referred to a neurosurgeon, Mr Kern, who saw her on 6 February 2018 and 22 March 2018. Mr Kern recorded that, when he saw the appellant, she was complaining of severe neck pain, bilateral suprascapular pain, interscapular pain and pain and cramps in her arms and hands including in her thumb, index and middle fingers. Mr Kern considered these complaints were consistent with severe bilateral C6 and C7 radiculopathies.[33]

42 The appellant's symptoms persisted and progressed after she ceased working for the respondent until she underwent surgery on 13 June 2018.[34] At that time Mr Kern performed an anterior cervical discectomy at C5/6 and C6/7, insertion of an artificial disc at C5/6, and an anterior cervical fusion by plate fixation at C6/7.[35]

43 Following the surgery performed by Mr Kern, the appellant's symptoms substantially resolved.[36]

44 The arbitrator was satisfied that symptoms of pain and bilateral radiculopathy did develop over a period of time from August 2017 and that surgery performed on 13 June 2018 provided relief from those symptoms.[37]

45 The appellant's employment with the respondent was terminated with effect from 19 November 2018.[38]

Personal injury by accident arising out of the course of employment

46 The arbitrator found that there was no accident arising out of or in the course of the appellant's employment which caused any injury for the purposes of par (a) of the definition of 'injury' in s 5(1) of the Act. Rather, the arbitrator found that the appellant experienced the onset of cervical radiculopathy when she was gardening at home on 9 September 2017 and her symptoms continued when she was at work after that date.[39]

47 In making those findings, the arbitrator rejected medical opinions of Mr Kern and two other medical practitioners on which the appellant relied. The arbitrator did so on the basis of inconsistencies between her findings as to the onset of the appellant's medical symptoms and the facts on which those practitioners relied in forming their opinions.[40]

48 The arbitrator noted that the medical reports relied on by the respondent also took account of a history of the onset of the appellant's symptoms which was inconsistent with the arbitrator's factual findings. The arbitrator noted that, even with that history, none of those practitioners accepted that the sealing of chicken bags on 12 September 2017 was the cause of the symptomatic disc prolapses. In the arbitrator's view, their opinions provided no support for a finding pursuant par (a) of the definition of 'injury' in s 5(1) of the Act.[41]

Recurrence, aggravation, or acceleration of degenerative spinal disease

49 The arbitrator identified the next issue she was required to address in the following terms:[42]

It is necessary for me to determine whether the evidence establishes that [the appellant's] activities at work both before and after 12 September 2017 contributed, to a significant degree, to any recurrence, aggravation, or acceleration of any pre-existing disease. These periods of time must be considered separately because [the appellant's] work tasks differed in the respective periods prior and subsequent to the onset of her symptoms.

50 The arbitrator found that the appellant did not suffer a recurrence of her injury on the basis that her symptoms after gardening were continuing rather than recurring.[43]

It is necessary for me to determine whether there was an injury for the purposes of paragraph (d) of s 5(1) of the Act within the period from the date on which [the appellant's] relevant symptoms were first experienced until [the appellant's] work with the Respondent ceased.

52 The arbitrator noted that none of the available medical evidence specifically addressed this question.[45] After considering matters referred to in s 5(5) of the Act,[46] the arbitrator gave the following reasons for not being satisfied that the appellant's work after she became symptomatic contributed, to any significant degree, to any acceleration or aggravation of her pre-existing condition:[47]

(a) [The appellant] worked for a period of about six weeks, on a part-time basis after 12 September 2017;

(b) [The appellant] did not give evidence that, during that period, she suffered any particular insult to her cervical spine whilst at work;

(c) [The appellant] agreed that during that period her colleagues assisted her with the heavier tasks required in her position, including the cooking of chickens, the sealing of chicken bags, lifting and carrying food and cleaning;

(d) [The appellant] was allocated to lighter duties for some of her hours of work during this period;

(e) The tasks that [the appellant] identifies as provoking cervical radiculopathy during that period are not heavy tasks that are likely to worsen the underlying condition;

(f) Whilst [the appellant's] symptoms progressed during the period, they continued to progress after the period, suggesting that following symptomisation caused by gardening, there was inevitable progression of symptoms irrespective of the nature of [the appellant's] activities; and

(g) There is no medical evidence that specifically addresses the likelihood that such tasks as [the appellant] did carry out post-symptomisation would worsen the disc protrusions or prolapses to a significant degree.

53 The arbitrator then turned to consider whether the appellant's work for the respondent 'contributed to a significant degree to any acceleration or aggravation of her degenerative spinal disease before she became symptomatic'.[48]

54 In doing so, the arbitrator noted that the medical evidence on this question was inconsistent and not always clear.[49]

55 The arbitrator considered whether she should seek further expert evidence of her own volition. The arbitrator decided that it was not appropriate to do so,[50] in circumstances where neither party had sought leave to call oral medical evidence,[51] and where:[52]

it is the imprecision in respect of the factual assumptions made by the experts which gives rise to the central question as to whether [the appellant] has discharged the burden of proving an aggravation or acceleration of her pre-existing condition during the course of her work for the Respondent. This is not a matter which would be resolved merely by calling the experts or any particular expert and seeking better exposure of their/his process of reasoning. Rather, it would be necessary to administer properly detailed factual assumptions and elicit supplementary expert opinion based on those assumptions.

I am not persuaded that, on the balance of probabilities, the tasks required of [the appellant] in any, or all, or any combination of her roles with the Respondent over the period of her employment with it have made a contribution, to a significant degree, to any acceleration or aggravation of [the appellant's] pre-existing degenerative disease in her cervical spine.

57 The appellant appealed against the arbitrator's decision to the District Court. Her amended appeal notice to that court identified a number of errors which the arbitrator was said to have made, which the appellant sought to characterise as either errors of law or errors of mixed fact and law.[53]

58 The primary judge found that the arbitrator's decision involved three errors of law.

59 First, the judge found that the arbitrator misapplied par (d) of the definition of 'injury' by artificially dividing the analysis into the appellant's activities at work before and after 12 September 2017. The arbitrator erred by never considering the issue of whether the appellant's activities on 12 September 2017 contributed, to a significant degree, to any recurrence, aggravation or acceleration of any pre‑existing disease. The correct question was whether, on 12 September 2017, there was a recurrence, aggravation or acceleration of a pre‑existing disease to which the appellant's employment had been a contributing factor and had contributed to a significant degree. By failing to turn her mind to that question, the judge found that the arbitrator misunderstood the nature of the statutory inquiry, which was an error of law.[54]

60 Secondly, the judge found that the arbitrator erred in law in finding that the conditions for applying the principle in Jones v Dunkel[55] were satisfied and in drawing the inferences that the evidence of Dr Nathan and Dr Egesi (who were not called as witnesses) would not have assisted the appellant.[56] The conditions were not satisfied because:

(1) the limits imposed by r 58 and r 59 of the Rules (referred to at [18] above) provided a reasonable explanation for not calling a medical witness in an arbitrat[57]n hearing;57 and

(2) there was no reason to suppose that the evidence of Dr Nathan or Dr Egesi, would have been particularly favourable to either party, and there was no reason to suppose that their evidence would not have been available to either party (subject to meeting the hurdles in r 58 and r 59 of the Rules).[58]

61 Thirdly, the primary judge found that the arbitrator erred in law in finding that the appellant's gardening may have been causally related to her disc protrusions, when there was no medical evidence to that effect.[59]

62 The primary judge also held that the arbitrator made the following inconsistent findings as to when the appellant's symptoms began:[60]

(1) the appellant experienced the onset of cervical radiculopathy when she was gardening at home on 9 September 2017; and

(2) the appellant experienced symptoms of cervical radiculopathy on 25 August 2017 when she was opening or attempting to open a bottle.

63 The primary judge found that other alleged errors were not established or that the grounds did not raise an error of law. The judge declined to grant leave to appeal in respect of those grounds.

64 The primary judge held that, while the findings noted at [62] above were inconsistent, the assertion was only of an error of fact. His Honour said that the ground of appeal which raised that issue did not involve a question of law and he declined to grant leave in respect of [61]at ground.61

65 The primary judge also said that he would decline to grant leave to appeal in relation to grounds of appeal alleging the error of law in relation to the application of the rule in Jones v Dunkel, which the judge found to be established.[62] This was on the basis that:[63]

I do not consider that these errors were material to the Decision in the sense that each contributes to it so that, but for the error, the Decision would have been, or might have been, different. As I have observed, the rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but only that it would not have assisted the party. It follows that removing the two inferences erroneously drawn by the Arbitrator does not strengthen the Appellant's evidence. I am not persuaded that, without each inference, the Decision would have been any different. (citations omitted) (emphasis added)

66 In relation to grounds 4.3 and 4.5, which raised the first and third errors of law identified above, the trial judge adopted the following passage of this court's decision in Engine Protection Equipment Pty Ltd v Miller:[64]

Apart from the requirement that the appeal relate to a question of law, the power to grant leave to appeal is not expressly confined. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave... Relevant matters include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed.

67 The judge granted leave to appeal on the basis that, given the centrality of the errors to the issues in dispute, the arbitrator's decision was attended with sufficient doubt to justify the grant of leave to appeal and it was in the interests of justice that the decision be subject to appellate review.[65]

68 The primary judge made the following general observations as to the nature of the review which he was required to conduct. His Honour said:[66]

Having granted leave to appeal, the appeal is to be by way of review of the decision appealed against. If the appeal involves a question of law, the whole decision appealed from is open to review and not merely the question of law. The review is to be a 'real review'. The Appellant must show a 'proper basis' for disturbing the decision such as an error of 'fact, law or logic'. So correction of errors of law is the court's 'principal, but not only, task'. However, the Appellant 'may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator'. (citations omitted)

69 The primary judge noted that the injury asserted by the appellant was an injury to her cervical spine which occurred on 12 September 2017.[67] The judge noted that the respondent asserted that the appellant's symptoms were from a pre-existing degenerative condition, which was rendered symptomatic by her activities at home.[68]

70 The primary judge identified the issues for determination as being whether the appellant had proven on the balance of probabilities that:[69]

(a) she suffered a personal injury by accident arising out of or in the course of her employment with the respondent or whilst acting under the respondent's instructions; or

(b) her employment with the respondent was a contributing factor, to a significant degree, to a recurrence, aggravation or acceleration of any pre-existing disease.

71 The primary judge began his review by referring to the following parts of the appellant's evidence, taking the appellant's evidence 'at its highest':[70]

(a) although [the appellant] had hit her head a number of times over the two years preceding September 2017, it did not hurt, nor cause symptoms;

(b) [the appellant] had cramp or twinges on the fingers of her right hand when she was opening the coke bottle on 25 August 2017;

(c) on the weekend of 9 and 10 September 2017, [the appellant] had loose mulch delivered to her house which she, her husband and son spread on the roses at the house;

(d) [the appellant] had cramp on the fingers of her right hand when spreading the mulch;

(e) the twinge in her right hand was 'quite unusual' something [the appellant] had [not] experienced before, but 'similar to the coke bottle in the sense of cramp feeling';

(f) after a minute or two of flicking her wrists, the [appellant's] symptoms went away, and she did not have any symptoms for three days;

(g) after the mulching incident, the next time [the appellant] had the same feeling in her hand was 'chicken bags', where the feeling was the same, but more intense;

(h) specifically, the cramp next occurred on 12 September 2017 when [the appellant] was putting a chicken, which she had extracted from the cooker machine, into a Ziploc bag and 'closing it with force';

(i) [the appellant] then experienced pain in her fingers, which later came into her wrists, 'because of the weight lifting chickens out again';

(j) as part of the task of cooking and ultimately bagging chickens on 12 September 2017, [the appellant] was required to lift crates of chicken (containing eight chickens) in the cold room and place them on a trolley to take to the cooking room;

(k) [the appellant] did not give evidence that she experienced cramps when she lifted the crates of chickens, rather when she was placing them into Ziploc bags;

(l) once [the appellant] stopped putting chickens into bags her symptoms improved;

(m) in the weeks following 12 September 2017 [the appellant] started to notice a lot more pain and a lot of weakness, with the pain slowly stating to progress more in the wrist, coming up to the inside and outside of the elbow, then to the top of her shoulder and the front of her neck;

(n) the [appellant's] pain was a 'burning sensation', often 'a nasty cramp type all in the arm', 'felt like electricity';

(o) the doctors initially told [the appellant] that the pain was carpel tunnel, golfer's elbow and tennis elbow;

(p) the pain moved over time to [the appellant's] left arm;

(q) during this period [the appellant] also experienced fatigue, tiredness and weakness;

(r) by November 2017 the [appellant's] pain was 'hopeless', 'atrocious'; and

(s) [the appellant] did not put a claim in until November 2017 (when the pain had travelled up to her neck) because she thought the pain would get better.

72 The primary judge then identified 'four contentious findings of fact by the Arbitrator in the appeal, which need to be addressed in the review'.[71] The first two were that cervical radiculopathy occurred when the appellant was opening a Coke bottle on 25 August 2017, and that the onset of cervical radiculopathy began when the appellant was gardening at home on 9 September 2017. In both cases, the judge found that it was sufficient for the purposes of the review to accept the appellant's lay description of her symptoms. This was said to be so because it was the appellant's lay description which formed the factual basis for the expert opinions, and the medical characterisation of the symptoms was part and parcel of the overall diagnosis.[72]

73 The third contentious finding of fact was that the request by Ms Arunkumar to bandage the elbow was made in September 2017. The trial judge said that he hesitated to assume, in accordance with an unsuccessful ground of appeal, that the bandaging incident occurred in October 2017 as Ms Arunkumar said. His Honour said that this hesitation was because this assumption was not necessarily in the appellant's favour. The judge went on to say that:[73]

However, in the analysis I have adopted, whether or not the bandaging incident occurred in September or October makes no difference to the outcome of my review.

74 The fourth contentious finding of fact was that the appellant's gardening may have been causally related to her disc protrusion. The primary judge said that, given his conclusion that there was no medical evidence to support the finding, he 'put this finding to one side for the purposes of the review'.[74]

75 The primary judge also observed that he did not need to make any credibility findings against the appellant to undertake the review. Rather, his Honour indicated that he would proceed on the basis of the appellant's evidence as set out in the passage quoted at [71 [75]] above.75

As to the clinical notes of Dr Egesi and Dr Nathan, it is sufficient for me to observe that these notes set out the onset and gradual increase of symptoms in the Appellant's wrist, right elbow, neck and shoulder over the period 11 October 2017 and 12 November 2017. This is consistent with the evidence of the Appellant set out above.

It did not appear to be in issue in the MRI conducted on 9 November 2017 showed nerve impingement as a result of disc C5/C6 and C6/C7 spondylosis with disc protrusions at these levels.

77 The primary judge expressed the view that, for the purposes of the review, it was necessary to consider the six expert medical opinions before the arbitrator 'in some detail'.[77]

78 The primary judge quoted extensively from the medical reports relied on by the respondent.[78] He said that the history of the onset of symptoms recorded by the doctors who made those reports closely correlated with the appellant's evidence set out in the passage quoted at [71] above. In his Honour's view, there was no basis in the evidence to discount their opinions on the ground that the factual foundation on which they were based had not been established in the evidence before the arbitrator. However, none of those doctors gave evidence to the effect that on 12 September 2017 the appellant suffered an 'injury' within par (a) of the definition of that term, or that there was an aggravation or acceleration of a pre-existing disease on 12 September 2017 within par (d) of that[79]efinition.79

79 The primary judge noted Dr Kern's opinion that the appellant's symptoms were caused by C5/6 and C6/7 spondylosis, but that degeneration alone was unlikely to have caused the pathology at the C5/6 and C6/7 levels. Dr Kern's opinion was that it was much more likely that strenuous activities at work were a major contributing factor. Dr Kern expressed the opinion that the disc prolapses at C5/6 and C6/7 worsened on 12 September 2017 when the appellant 'was performing heavy physical activities lifting crates of chicken at work'. However, the judge noted that this was not the appellant's evidence. His Honour said that this factual basis did not 'correlate well' with the appellant's evidence that it was not the lifting of crates of chicken that caused her symptoms, but placing individual chickens in ziploc bags and closing them.[80]

80 The primary judge noted that other medical evidence on which the appellant relied also did 'not correlate well' with the appellant's evidence.[81]

81 The primary judge concluded his review of the medical evidence with the following observations:[82]

At best, the Arbitrator was left with three experts opining in favour of there being an injury for the purposes of the [Act] (each with an opinion weakened by a lack of close correlation with the Appellant's evidence) and three experts opining that there was no such injury (whose opinions closely correlated with the Appellant's evidence). There is no basis to discount the opinions of the experts who opined that there was no injury.

82 After noting that the onus was on the appellant to prove, on the balance of probabilities, that she sustained an 'injury' within the meaning of the Act, the primary judge said:[83]

At best, the opinion evidence was that it was equally likely that the cause of the Appellant's symptoms was degeneration unconnected with her work as opposed to being caused by a work related injury in the sense delineated in [the Act] s 5, and no basis for finding the latter to be more probable or likely than not. If anything, the former hypothesis stronger as it the opinions on which it is based correlated more closely with the Appellant's own evidence.

83 The primary judge then stated the following test for appellate intervention:[84]

Appellate intervention in relation to such a finding of fact, even in an appeal by way of rehearing, requires the Appellant to demonstrate that the finding is flawed by reference to incontrovertible facts or uncontested testimony, that it is glaringly improbable or contrary to compelling inferences, or that the Arbitrator failed to use, or has palpably misused, her advantage as the trier of fact. (citations omitted)

84 The primary judge held that the appellant had not established that the arbitrator made an error of this kind. Immediately thereafter, his Honour observed:[85]

Rather, even allowing for the errors that I have identified, and taking the Appellant's evidence at its highest, there was a clear basis in the facts for the Arbitrator's ultimate finding that the Appellant failed to establish her claim on the balance of probabilities. (emphasis added)

85 The primary judge concluded that his review did not persuade him that the arbitrator's decision should be varied, discharged or otherwise disturbed and that, accordingly, it should stand.

86 After rejecting an allegation that there was a reasonable apprehension of bias on the part of the arbitrator, the primary judge indicated that leave to appeal should be granted but that the appeal to the District Court should be dismissed.[86] Orders were made in those terms.

87 The appellant appeals against the dismissal of her appeal to the District Court on four grounds.

88 Grounds of appeal 1 and 2 challenge the primary judge's approach to the 'review' which s 247(5) of the Act required his Honour to conduct, once he had identified the errors and inconsistency noted at [58] - [62] above. The appellant contends that the primary judge ought to have set the arbitrator's decision aside on the basis that one or more of those errors might have materially affected the outcome of the arbitration application. The appellant contends that the primary judge applied too restrictive an approach in purportedly conducting the statutory appellate review, and as a result, wrongly concluded that the arbitrator's decision should not be set aside.

89 Grounds of appeal 3 and 4 in effect contend that the primary judge erred in failing to find the arbitrator erred in two respects alleged by the appellant in the District Court. Ground 3 contends that the arbitrator erred in concluding that the factual foundation for Mr Kern's evidence was relevantly deficient. Ground 4 contends that the arbitrator erred in law in concluding that the appellant's radiculopathy arose when twisting a Coke bottle cap in August 2017, in the absence of any evidence to support that conclusion.

90 The respondent raises three matters by way of notice of contention.

91 Ground 1 of the notice of contention alleges that the primary judge erred in law in failing to take account of the arbitrator's adverse credibility findings in relation to the appellant's evidence. It is contended that those adverse credibility findings added to the primary judge's reasons for the rejection of Mr Kern's opinion.

92 Ground 2 of the notice of contention alleges that the primary judge erred in concluding that there was no evidence to support the arbitrator's finding that the appellant's gardening may have been causally connected to her disc protrusions.

93 Ground 3 of the notice of contention in effect alleges that the primary judge erred in concluding that the arbitrator made inconsistent findings as to when the onset of the appellant's symptoms began.

94 The respondent does not challenge the primary judge's conclusion that the arbitrator erred in failing to address the statutory question or in applying the rule in Jones v Dunkel. Nor does the respondent challenge the primary judge's ultimate conclusion that leave to appeal to the District Court should have been granted on the basis that the appeal to that court involved a question of law.

95 The grounds of appeal and the grounds of the notice of contention therefore raise the following issues for this court's determination:

(1) Did the primary judge fail to undertake a review of the kind required by s 247(5) of the Act?

(2) Did the arbitrator make an error of law in finding that the appellant's gardening may be causally related to her disc protrusions, in the absence of any evidence supporting that finding?

(3) Did the arbitrator make inconsistent findings as to when onset of the appellant's symptoms began?

(4) Did the arbitrator make an error of law in finding that the appellant's radiculopathy arose when twisting a Coke bottle cap in August 2017, in the absence of any evidence to support that finding?

(5) Did the arbitrator err in concluding that the factual foundation for Mr Kern's evidence was relevantly deficient?

Nature of appellate review under the Act Statutory text

(1) Except as otherwise provided by this Act a decision of an arbitrator is final and binding on the parties and is not subject to an appeal.

(2) A decision of an arbitrator or anything done under this Act in the process of coming to a decision of an arbitrator is not amenable to judicial review.

98 Section 247 of the Act provides for an appeal against an arbitrator's decision made under pt XI of the Act in the following terms:

(1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.

(2) Subject to subsection (3), the District Court is not to grant leave to appeal unless -

(a) in the case of an appeal in which an amount of compensation is at issue -

(i) a question of law is involved and the amount at issue in the appeal is both -

(I) at least $5 000 or such other amount as may be prescribed by the regulations; and

(II) at least 20% of the amount awarded in the decision appealed against;

(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;

(b) in any other case, a question of law is involved.

(4) An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.

(5) An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.

(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.

(7) On hearing an appeal made under this section, the District Court may -

(a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and

(b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.

99 The following aspects of the statutory provisions may be noted.

100 First, the 'appeal' for which s 247 of the Act provides is from an administrative decision of an arbitrator, who is an officer of the executive government of the State, to a court of law. The decision which is the subject of an appeal is one which finally resolves a dispute between parties as to the obligation of one party to pay, and the right of the other party to receive, payments of workers' compensation. The arbitrator's decision may be registered and enforced as an order of a court.

101 Secondly, leave to appeal against an arbitrator's decision to the District Court can only be granted if a question of law is involved in the appeal.

102 Thirdly, subject to the grant of leave to adduce additional evidence under s 247(6), the appeal to the District Court must be resolved by reference to the material before the arbitrator.

103 Fourthly, on appeal the District Court's powers include the power to quash the arbitrator's decision either with or without substituting any decision that should have been made in the first instance. There is no express power of the District Court to remit a matter to an arbitrator, or to a different arbitrator, for a further or substituted hearing. However, such an order might be made as a 'further or other decision, as to costs or otherwise, as the District Court thinks fit', under s 247(7)(b) of the Act.

104 It is in this context that s 247(5) of the Act provides that an 'appeal under this section is to be by way of review of the decision appealed against'.

105 The Workers' Compensation Reform Act 2004 (WA) (2004 Amendment Act) introduced the basic structure of the relevant parts of the Act which remain in force today. However, at that time, the Act provided for appellate jurisdiction from arbitrator's decisions to be exercised by a Commissioner.

106 Section 278 of the Act as affected by the 2004 Amendment Act established a directorate called the Dispute Resolution Directorate, or DRD. The DRD was constituted by 'the Commissioner', the Director, arbitrators and other officers of the DRD.[87] The Commissioner was a person appointed under s 281 of the Act by the Governor on the recommendation of the Minister. A person could not be appointed Commissioner unless he or she was a judge of the District Court.

107 Arbitrators were officers of WorkCover WA, who had to be legal practitioners and whose appointment had to be approved by the Minister.[88] They were subject to the general control and direction of the Director, but were not subject to direction as to the decision to be given in a particular matter.[89]

108 Section 247 of the Act was introduced at this time. It provided for appeals from decisions of arbitrators in essentially the same terms as the present provision, save that the appeal was to the Commissioner rather than the District Court. Section 254 of the Act provided for an appeal from a decision of the Commissioner to the Full Court of the Supreme Court on a question of law.

109 The role of Commissioner was abolished by the Workers' Compensation and Injury Management Amendment Act 2011 (WA) (2011 Amendment Act). From this point, appeals from decisions of arbitrators were made to the District Court rather than the Commissioner.

110 In Pacific Industrial, this court considered the character of a review under s 247 of the Act, at a time when the appeal was to the Commissioner rather than the District Court. The appeal in that case was on the ground that the Commissioner misconstrued s 247 of the Act.

111 In Pacific Industrial, an arbitrator had determined the level of the worker's disability as being not less than 16%, resolving a dispute based on differing medical opinions. On appeal by the employer, the Commissioner considered and rejected eight grounds of appeal which alleged errors of law by the arbitrator in that case. The employer also advanced a ground which contended that the decision of the arbitrator was 'manifestly wrong', having regard to medical evidence which the employer asserted the arbitrator should have accepted.

112 In rejecting that ground, the Commissioner had expressed the view that:

Where an arbitrator has made a finding of fact simpliciter based solely upon his or her evaluation of the evidence, then such finding is not amenable to correction by me.

113 Wheeler JA, with whom other members of the court agreed, said that:[90]

To the extent that the commissioner's reasons might be understood as suggesting that the commissioner is precluded from considering or reviewing errors of fact, he has, in my respectful view, erroneously confused a necessary precondition to the grant of leave (the existence of a question of law) with the task to be undertaken during the course of a review.

As to the question of what a 'review' entails, it is to be noted that the review is ordinarily conducted on the materials before the arbitrator: s 247(6). It is not a hearing de novo. So far as the content of a 'review' is concerned, there is authority, both in New South Wales and in this court, in the context of workers' compensation legislation. In Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, the Court of Appeal of New South Wales considered the nature of a 'review' by a judge of a commissioner, pursuant to the Compensation Court Act 1984 (NSW). In reasons with which Waddell and Samuels AJJA agreed, Kirby P repeated the view that he expressed in an earlier decision, which was to the effect that a review was wider than an appeal in the strict sense, and wider than the usual kind of narrow appeal from discretionary decisions which required some error of principle to be shown before the decision could be overturned (586). His Honour also noted, however, that the fact that there is a decision which is being 'reviewed' postulates that the judge (in that case) would start not with a blank page, but with a formal decision and that, unless the 'review' persuaded the judge that the order being reviewed should be varied, discharged, or otherwise disturbed, it would stand. His Honour had said in his earlier decision, and repeated:

This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders.

114 Wheeler JA concluded that there was no basis to review the arbitrator's decision in the following terms:[91]

The consideration which is fatal to this appeal, however, is the requirement that the aggrieved party provide some 'proper basis' for disturbing the decision under challenge (Boston at 586) or, put differently, the constraints marked out by the nature of the appellate process. That is because it is plain from the way in which the proceedings were conducted before the commissioner that this appellant, in seeking a 'review' of the facts, was doing no more than requesting the commissioner to trawl again through all of the facts which were before the arbitrator, with a view to substituting his own decision for that of the arbitrator. There was no error, either of fact, or law, or logic, which was pointed to either in ground 9 or in the submissions in support of it, which was additional to the alleged errors, which were not made out, identified by grounds 1 to 8 inclusive. Before us, the appellant was not able to point to any "proper basis" for disturbing the decision of the arbitrator, in addition to those identified in grounds 1 to 8 inclusive. Rather, it was suggested, speculatively, that if the commissioner had undertaken a 'review' in the sense contended for by the appellant - that is, if the commissioner had just ignored the arbitrator's decision and started again - the commissioner might have arrived at a view different from that of the arbitrator. That is not a proper basis for a review.

Although the commissioner in the present case expressed a view of his function which appears, on its face, to be too narrow, he did so in responding to a contention made by the appellant which urged upon him an unduly broad view of his function. It may be that, understood against the particular background of the submissions made to him, the commissioner's conclusion reflects no more than an infelicity of language, rather than an error of law. However, even if there was an error of law, it is one which would make no difference to the outcome of the present proceedings, there having been no proper basis before the commissioner upon which he could have embarked upon a review of the arbitrator's factual findings.

116 The effect of the decision in Pacific Industrial was summarised in the following terms by Murphy JA (with whom other members of the court agreed) in Catholic Education Office of WA v Granitto:[93]

It has been held that an appeal under s 247 is neither a hearing de novo, nor an appeal in the 'strict sense', and that the commissioner, within the constraints marked out by the nature of the appellate process, must conduct a 'real review'.

Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it; the appellant may not simply invite the commissioner just to ignore the arbitrator's decision and start again with a view to having the commissioner substitute his or her own decision for that of the arbitrator. (citations omitted)

117 Pacific Industrial and Granitto were referred to with approval in this court's summary of general principles in Erceg v Galati Nominees Pty Ltd.[94] Pacific Industrial was applied by Newnes JA (McLure P and Murphy JA agreeing) in Ewart v Caruso,[95] where a ground of appeal alleged that the primary judge in that case had failed to identify how the arbitrator in that case had erred and in simply substituted his own decision for that of the arbitrator.

118 The observations of Kirby P in Boston Clothing Co Pty Ltd v Margaronis,[96] referred to in Pacific Industrial, appear to have been overtaken by subsequent decisions of the New South Wales Court of Appeal in relation to workers' compensation legislation in that State. The history of decisions is set out in some detail in Sapina v Coles Myer Ltd.[97] The New South Wales Court of Appeal has regarded a somewhat similar provision to s 247 of the Act as authorising what is in effect an appeal de novo in which the Presidential member of the Commission reaches his or her own view as to the correct and preferable decision. However, the Presidential member is given a 'wide choice' as to how he or she decides for himself or herself what is the correct and preferable decision, which may (but will not necessarily) involve the rehearing of the case and the calling of witnesses.[98]

119 In Al-Othmani, the New South Wales Court of Appeal held that a Presidential member was not obliged to exercise the same restraint in dealing with credit findings as is imposed on an appellate court conducting a rehearing, such that a failure to do so will constitute an error of law, in circumstances where the member conducts his or her review on the papers, including the transcript of the hearing before the arbitrator.[99]

120 In our view, there are at least two significant differences between the Act and the New South Wales legislation referred to above, which mean that the approach to appellate review in those cases is not applicable to the Act.

121 First, the New South Wales legislation did not require that the appeal involve a question of law as a condition for the grant of leave to appeal. That feature of the Act counts strongly against a conclusion that it provides for an appeal to the District Court by way of de novo review. There is no evident policy reason for imposing the requirement as a condition for the grant of leave to appeal to the District Court if the review to be conducted by the District Court when leave is granted is to be a fresh consideration.

122 Secondly, the New South Wales legislation established a Commission,[100] of which the President was a component part,[101] the members of which were required to have regard to the objectives of the NSW Commission in exercising their functions.[102] The proceedings in the NSW Commission, including before the Presidential member, were not subject to the rules of evidence and were required to be conducted informally.[103] By contrast, in Western Australia the provisions of the Act dealing with these matters are, as discussed at [15] - [17] above, directed to the arbitrator, not the District Court. That was also the case when the appeal from an arbitrator's decision was to the Commissioner rather than the District Court. This counts strongly against the appeal to a District Court judge (who is bound by the rules of evidence and so could not conduct a review of the kind an arbitrator is required to conduct) being by way of de novo review. For example, if the appeal to the District Court were a de novo review, unless admitted by consent all medical evidence would have to be the subject of oral evidence.

123 We also note, for completeness, that the position reached in Sapina has been legislatively reversed in New South Wales since that decision. Section 352(5) of the current Workplace Injury Management and Workers Compensation Act 1998 (NSW) now provides:

An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.

Nature of the review on appeal to the District Court under the Act

124 Pacific Industrial correctly decided that the 'review' required by s 247(5) of the Act is in the nature of an appeal by rehearing. It is not sufficient to satisfy the District Court judge that a decision other than that made by the arbitrator is correct and preferable. Some material error of fact or law, or some other miscarriage of justice, must be established.

125 In deciding whether an error of fact is established, it is necessary for the District Court judge to take account of the natural limitations of an appellate court and the advantage which the arbitrator has in seeing the witnesses and hearing the parties' cases as they unfold.

126 In that regard, there is a distinction between findings of primary fact which are affected by the assessment of a witness' oral evidence and inferences which may be drawn from those primary facts.

127 As to appellate restraint with respect to findings of primary fact, the High Court observed in Robinson Helicopter Co Inc v McDermott:[104]

A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'. (citations omitted)

128 In relation to inferences which may be drawn from primary facts, the position is different as was noted in Warren v Coombes:[105]

... in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

129 This distinction is elucidated in the following passage of the majority judgment in Lee v Lee:[106]

A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been 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. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. (citations omitted) (emphasis added)

130 The determination of whether an error or some other miscarriage of justice is established is generally made on the material before the arbitrator, subject to the District Court's power to give leave to adduce additional evidence under s 247(6) of the Act.

131 Once an error or a miscarriage of justice is established then the appellate court, if it is in a position to do so, substitutes its own decision for that of the arbitrator. The appellate court will ordinarily do so by reference to the facts found by the arbitrator which have not been successfully challenged and such findings of fact that the appellate court is able to make by reference to the written record. In deciding whether the appellate court is able to make findings, regard must again be had to the natural limitations of an appellate court working from written material without the benefit of seeing or hearing witnesses. Where an arbitrator's credibility-based findings of fact are infected by material error and cannot be relied upon, or where an assessment of primary evidence contested on credibility grounds is called for, then the appellate court will generally not be in a position to make its own findings of fact. In such a case, it will, at least ordinarily, be necessary for the District Court to remit the case to WorkCover WA for redetermination, usually by a different arbitrator.

132 In our view, the primary judge's approach to the review required by s 247 of the Act involved four errors of law.

133 First, the primary judge does not proceed by reference to the primary facts found by the arbitrator, but rather by reference to the evidence of the appellant taken at its highest and ignoring the adverse credibility findings which the arbitrator had made against her. This may have been a permissible approach if the judge had dismissed the appeal on the basis that, even taking the appellant's evidence at its highest, her claim for compensation was bound to fail. However, that was not the approach taken by the primary judge.

134 Secondly, the primary judge asked whether there was a 'clear basis in the facts' for the Arbitrator's ultimate finding that the appellant failed to establish her claim. This is not an appropriate test where the arbitrator has made errors of law which were material in the sense that that they could have affected the arbitrator's ultimate finding. In such a case, it is not appropriate to proceed on the basis of an ultimate finding (which is infected by error) so long as it was open on the evidence. To do so would deprive the appellant of any proper determination of her claim for compensation under the Act. The arbitrator's rejection of the claim has been found to be infected by errors of law. The primary judge has not determined that the appellant's claim for compensation should be dismissed, but has merely determined that it could have been dismissed (in the sense that it was open to the arbitrator to do so on the evidence before her).

135 Thirdly, the judge wrongly held the limitations as to appellate review of credit based findings of fact identified in cases such as Robinson Helicopter Company Inc v McDermott to be applicable to the ultimate conclusion of whether an 'injury' was established.[107] The arbitrator's conclusion that no 'injury' was established was in part based on credibility-based findings as to the symptoms experienced by the appellant and when they were experienced, and her activities at work. However, the arbitrator's conclusion also involved the drawing of an inference based on the findings as to symptomology and the written medical reports. Once findings were made as to the appellant's activities at work and symptomology, the primary judge was in as good a position as the arbitrator to assess the inferences to be drawn from those primary facts and the documentary medical reports. The Robinson Helicopter approach to appellate review of credit-based findings of primary fact was applicable only to the findings as to the appellant's activities at work and symptomology.

136 Fourthly, in the passage quoted at [65] above, the primary judge erred in his application of the proper test as to the materiality of the arbitrator's error in relation to the rule in Jones v Dunkel. The primary judge correctly identified the test of materiality as being whether the arbitrator's decision 'would have been, or might have been, different' if the error had no[108]een made.108 However, his Honour held that the error was not material merely on the basis of whether the arbitrator's decision 'would have been any different', without considering whether the arbitrator's decision might have been different if the error had not been made.

137 The first error in the primary judge's approach favoured the appellant. To that extent, ground 1 of the notice of contention should be upheld. However, the second, third and fourth errors were against her interests, and wrongly favoured the respondent. In our view, grounds of appeal 1 and 2 are established to the extent that they contend that the primary judge erred by dismissing the appellant's appeal to the District Court because there was 'a clear basis in the facts' for the arbitrator's finding that the appellant had failed to establish her claim.

138 The parties raise several specific factual issues with the arbitrator's findings in grounds of appeal 3 and 4 and in the notice of contention. Before turning to deal with how this court should deal with the appeal, we will address those issues.

Relationship between gardening and disc protrusions

139 Ground 2 of the respondent's notice of contention asserts that there was evidence that supported the inference that the appellant's gardening activities may have been causally related to her disc protrusions.

140 The respondent submits that a causal connection in the absence of expert evidence, or when the expert evidence does not rise above the possible, does not preclude a decision-maker from making a finding of causation if the evidence on the whole establishes it on the balance of probabilities. The respondent submits that the arbitrator's finding was only that it was possible that the appellant's gardening activities were a causative factor.[109] The respondent contends that the finding is supported by the evidence that led the arbitrator to conclude that the onset of persistent symptoms arose when the appellant was gardening, and the report of Mr Kern, the appellant's consultant neurosurgeon, which refers to the possibility (which Mr Kern regards as unlikely) that the appellant's injury was initially caused at home.[110]

141 We accept the respondent's submissions in this regard. It is important to appreciate the context in which the impugned finding of the arbitrator was made. The arbitrator was dealing with the mandatory relevant considerations identified by s 5(5) of the Act, which required her to have regard to 'activities of the worker not related to the employment' in determining whether the employment contributed to the contraction or recurrence of a disease for the purposes of the definition of 'injury'. Gardening was one of those activities. The arbitrator did not make a finding that gardening caused or contributed to the appellant's condition. She merely found that it may have done so.

142 Mr Kern referred to the possibility that the appellant's injury was caused at home as one which could not be excluded. He thought it unlikely that the injury was caused at home, and that the most likely cause was the appellant's work-related activities.[111] However, Dr Kern's opinion as to the likely cause of the appellant's injury was based on the appellant becoming much more symptomatic at work on 12 September 2017 and assumptions about the nature of activities at work and home which are inconsistent with the arbitrator's findings. It was open for the arbitrator to infer that, on Dr Kern's approach, the likelihood of gardening being a cause of the appellant's injury would be greater on the findings of fact made by the arbitrator.

MARKS -v- COLES SUPERMARKETS [2021] WASCA 176 (8 October 2021)

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