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[2025] NSWCA 229
respondent. Appeal dismissed. Mars was directed to file and serve costs submissions of no more than three pages by 4 pm on 27 October 2025; Mr Knight was directed to file and serve responsive submissions of...
Mars challenged the compensation decision on the basis that the Commission’s appellate reviewer had not properly assessed medical evidence and had not dealt with its arguments about Mr Knight’s incapacity. The Court of Appeal held that the reviewer did make an error when he treated the Member’s interpretation of Dr Lyons’ report as acceptable merely because it was open to the Member. But the error did not matter to the result: the accepted evidence of Mr Knight and Dr Dias independently supported the decision, and Dr Lyons’ report did not support Mars’ medical position. The Court also held that the reviewer had addressed Mars’ incapacity arguments and had not been asked clearly to revisit the Member’s general credibility findings. The appeal was dismissed.
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Mars Australia Pty Limited v Knight [2025] NSWCA 229 concerns the statutory appeal structure for workers compensation decisions, the standard of review a presidential member must apply, and the requirement that an error of law be material before the Court of Appeal will disturb the result.
Mr Knight worked for Mars as an operations technician from 4 September 2000 until 13 September 2019. His duties included fixing machinery by getting into a palletiser on his hands and knees to clear blockages, which he estimated happened about 30 times each day. He also performed electrical work in awkward positions involving squatting and kneeling ([2], [11]). He developed bilateral knee pain during his employment. Arthroscopies in 2009 and 2011 recorded meniscal tears and arthritic changes, after incidents Mr Knight associated with activities away from work ([12]-[13]).
Mr Knight said his symptoms worsened over time, including by 2018, when his left knee pain was regularly present at the end of the working day. He accepted voluntary redundancy because the pain made it difficult to perform his duties ([13], [15]). He later undertook several jobs involving, in his account, lighter work, but his knee difficulties continued and worsened.
His compensation claim relied principally on occupational physician Dr Dias and treating orthopaedic surgeon Dr Lyons. Mars relied on orthopaedic surgeon Dr Breit. Dr Dias considered that Mr Knight’s symptoms were consistent with a persistent aggravation of osteoarthritis caused by the nature and conditions of his Mars employment ([33]-[38]). Dr Breit considered the arthritis unrelated to work and attributed it to constitutional factors and prior meniscal procedures ([50]-[53]). Dr Lyons said that Mars work had “precipitated Mr Knight’s meniscal tears” and had subsequently been a substantial contributing factor to the arthritic process ([45]). The Member preferred Dr Dias to Dr Breit and accepted Mr Knight’s evidence ([55]-[60]).
The Personal Injury Commission determined that Mr Knight had sustained injuries to both knees as a result of his employment with Mars, and ordered compensation including weekly payments and costs relating to bilateral knee replacements ([4]). An Acting Deputy President dismissed most of Mars’ appeal, but amended the deemed injury date to 18 July 2022 ([7]).
Mars appealed to the NSW Court of Appeal on two grounds. First, it argued that the Acting Deputy President had used the wrong standard when reviewing the Member’s interpretation of Dr Lyons’ report. Second, Mars argued that the Acting Deputy President had failed to address its submissions disputing the Member’s incapacity conclusion and factual findings ([8], [73]). The Court, in reasons given by Stern JA with Adamson JA and Ball JA agreeing, dismissed the appeal ([1], [2], [91], [93]).
The Court treated the first ground as establishing an error of law, but not a material one.
Under s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), an appeal to a presidential member is confined to deciding whether the Commission’s decision was affected by error of fact, law or discretion and correcting any such error ([5]). In State of New South Wales v Culhana [2025] NSWCA 157, the Court had held that the applicable standard is correctness. That does not eliminate appropriate deference to a first-instance member who had an evidentiary advantage, but it is insufficient to dismiss an appeal merely because the finding under challenge was “open” to the member ([5]).
The Acting Deputy President identified ambiguity in Dr Lyons’ second report about whether Mr Knight’s meniscal tears were caused by work. He reasoned that the Member’s reading of the report was open, and that a different reader might have interpreted it differently without demonstrating error ([67]). Stern JA concluded that this reasoning stopped at the “open” finding and therefore did not perform the required review. The Acting Deputy President had relied on the approach in Raulston v Toll Pty Ltd, which Culhana had held to be wrong in the relevant respect ([6], [68], [79]).
But identifying legal error was not the end of the inquiry. Section 353 proceedings require material error before the Court exercises its powers to disturb the decision. Drawing on Fisher v Nonconformist Pty Ltd and Culhana, Stern JA said materiality asks whether there was a “realistic possibility” that the error could have made a difference ([75]-[77]). The Court therefore considered the role Dr Lyons’ report actually played in the compensation determination.
The Member’s central medical reasoning was the preference for Dr Dias over Dr Breit. The Member considered Dr Dias’ history of the work duties, prior procedures and onset of symptoms more detailed and responsive to the evidence than Dr Breit’s analysis ([56]). Stern JA concluded that this analysis did not depend on Dr Lyons’ report. The Member had treated Dr Lyons’ report as supportive, but Dr Dias’ accepted evidence independently supported the claim ([81]-[82]).
The Court also assessed what Dr Lyons’ report could establish if read in Mars’ preferred way. It was ambiguous about whether work had caused the meniscal tears. But it did not say that Mr Knight’s osteoarthritis was unrelated to work, or that arthroscopic procedures inevitably caused osteoarthritis, which was the substance of Dr Breit’s opinion ([81]). Even if the ambiguity led to Dr Lyons’ opinion being discounted, Dr Dias’ evidence remained. The Acting Deputy President had also expressly said that the Member’s incapacity conclusions rested on Mr Knight’s and Dr Dias’ evidence ([71], [82]). The Court therefore found no realistic possibility that correct review would have produced a different result ([83]).
The second ground failed because the Acting Deputy President had engaged with the argument Mars actually advanced. The test for constructive failure to exercise jurisdiction, as the Court stated by reference to Dranichnikov v Minister for Immigration and Multicultural Affairs, requires a substantial, clearly articulated argument based on established facts that the decision-maker failed to consider or engage with ([86]). Mars argued that its submissions before the Member, including a lengthy set of factual points, should have led the Acting Deputy President to revisit the Member’s conclusions about incapacity and credibility ([70], [84]).
Stern JA found that the Acting Deputy President had directly addressed the incapacity challenge. Mars had not, in its submissions before the Acting Deputy President, clearly raised a separate challenge to the Member’s general acceptance of Mr Knight’s credibility. The Court noted that a party seeking to challenge such findings would need to raise that challenge and engage with the recognised limits on appellate review of factual findings ([86]-[87]). The Acting Deputy President had also considered several of the factual matters Mars said had been overlooked, including the radiological report, general practitioner notes and hospital records ([88]). The Court found no basis to conclude that he had used the wrong review standard on this ground ([89]).
The judgment places the appeal in the context of two recent NSW Court of Appeal decisions.
Before Culhana, the Commission’s approach had been influenced by the first general principle set out in Raulston. Stern JA said that Culhana had held that principle wrong ([6]). The relevant change concerned how a presidential member reviews factual findings under s 352(5). A decision cannot be upheld on appeal simply because a particular inference was available to the first-instance member. The appellate reviewer must decide whether error occurred, while allowing for any genuine advantage the first-instance member had in assessing the evidence ([5]).
Mars demonstrates that the rule from Culhana does not automatically result in a successful further appeal under s 353. The Court expressly relied on Fisher for the proposition that legal error must be material. The error must have a realistic possibility of affecting the result ([75]-[77]). Thus there are two analytically distinct questions: whether the presidential member applied the required standard, and whether any departure could have made a difference to the outcome.
The judgment also clarifies how the “would make a difference” language in Culhana should be understood. Stern JA did not treat that wording as establishing a different materiality test for errors involving appellate-review standards. He read it as shorthand for Fisher’s realistic-possibility test ([77]). The Court added that where only one legally correct conclusion is available on a particular issue, that may be determinative of materiality if the outcome depends on that issue ([77]).
On constructive failure to exercise jurisdiction, the judgment applies a focused threshold: an unaddressed argument must be substantial and clearly articulated, and must rely on established facts ([86]). A party’s reliance on a broad collection of first-instance submissions does not, by itself, establish that a presidential member failed to exercise jurisdiction if the appeal grounds did not clearly raise the claimed challenge and the member engaged with the argument that was presented ([86]-[88]).
The decision does not displace the ordinary need to consider the decision-maker’s reasons as a whole. It applies the correctness standard to the statutory task, while also examining whether an alleged error was outcome-relevant. The result is a distinction between a demonstrated error and a material error that warrants relief.
At [5], the Court states that an appeal under s 352(5) is “limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion”. In plain English, the presidential member is not simply deciding the claim afresh without reference to the statutory appeal task. The task is to identify and correct error in the Commission’s decision.
Also at [5], the Court explains that appropriate deference may be given where the first-instance member had an evidentiary advantage. But it is “not sufficient” to dismiss an appeal because a finding was merely “open” to that member. In plain English, the reviewer must make an independent assessment of whether the finding was erroneous, while taking account of any advantage the original decision-maker had.
At [77], Stern JA says that materiality should be approached as explained in Fisher. The relevant question is whether there was a realistic possibility that the error could have made a difference. The passage matters because it addresses Mars’ argument that an error in the standard of review might call for a different materiality approach. The Court rejected a separate test for that category of error.
At [79], the Court says the Acting Deputy President “erred in point of law” by relying on the fact that the Member’s interpretation of Dr Lyons’ report was open. This identifies the error clearly. It does not, by itself, mean the Commission’s decision had to be overturned.
At [81]-[82], the Court explains why the error did not affect the result. Dr Dias’ evidence, accepted by the Member, did not depend on Dr Lyons’ report. Nor could Dr Lyons’ report, however interpreted, undermine the force of Mr Knight’s and Dr Dias’ evidence. In plain English, the disputed report was not the foundation on which the outcome depended.
At [86], the Court states the test for constructive failure to exercise jurisdiction. The omitted matter must be a substantial, clearly articulated argument relying on established facts. This is not a requirement to answer every item in a party’s material separately. The question is whether a sufficiently clear and important argument was left unaddressed.
The judgment is relevant where a presidential member has dismissed a statutory appeal by saying that a first-instance factual finding or interpretation was “open” to the original decision-maker. In that setting, the statutory task under s 352(5) requires review for error using the correctness standard, with appropriate allowance for evidentiary advantages ([5], [79]).
It is also relevant where a party alleges that the presidential member applied an incorrect standard but seeks relief under s 353. Mars shows that the Court will separately assess materiality. The alleged error must have a realistic possibility of changing the result; showing the wrong reasoning step alone is not enough ([75]-[83]).
The materiality analysis in this case is especially pertinent where the challenged evidence is not essential to the result because other accepted evidence independently supports the decision. The Court examined the role played by Dr Lyons’ report, the Member’s preference for Dr Dias, and the Acting Deputy President’s reliance on Mr Knight’s and Dr Dias’ evidence ([81]-[83]).
The constructive-failure discussion is relevant where a party says that a reviewer ignored a broad set of factual points or failed to revisit credibility findings. Mars shows the importance of whether the alleged challenge was clearly articulated in the appeal submissions, and whether the reviewer engaged with the substance of the argument actually presented ([86]-[89]). The judgment does not say that every point must appear in a particular form, but it does reject Mars’ attempt to recast its submissions as a direct challenge to general credibility findings when the Court concluded that they had fallen short of doing so.
The judgment identifies no later court treatment of Mars Australia Pty Limited v Knight [2025] NSWCA 229. It was decided on 20 October 2025, and the supplied judgment contains no subsequent decisions discussing, applying or distinguishing it. On the available source, no claim can be made about how later courts have treated the decision.
The judgment itself applies and explains earlier authorities. Culhana is applied for the correctness standard under s 352(5) and for the proposition that the “open” character of a finding is not, by itself, enough to dispose of an appeal ([5], [79]). Fisher is applied to the materiality threshold ([75]-[77]). Dranichnikov is applied to the constructive-failure argument ([84]-[86]). The decision also discusses Raulston as the source of the approach that Culhana had disapproved ([6], [68]).
The Court’s treatment of those authorities is important when situating Mars. Its central contribution in this case is not to restate the standard without qualification, but to show its operation alongside materiality. Culhana identifies the review standard; Fisher supplies the materiality analysis; Mars applies both to the particular evidentiary record before the Acting Deputy President.
The judgment leaves the precise boundary of appropriate deference to a first-instance member to the principles it cites from Culhana and the cases discussed there. It confirms that evidentiary advantages matter, but that a mere “open” finding is inadequate. It does not, in this case, need to decide how that balance would work where the original member’s advantage was central to resolving a genuinely conflicting body of evidence ([5], [79]).
The decision also does not provide a general method for deciding when a disputed expert report is sufficiently important to make an appellate-review error material. Its conclusion depends on the evidentiary structure in this case: the Member preferred Dr Dias to Dr Breit, and the Court found that Dr Dias’ evidence stood independently of Dr Lyons’ report ([81]-[83]). Different records may require a different assessment of whether the challenged evidence could realistically affect the outcome.
On constructive failure, Mars addresses a case where the Court found that the Acting Deputy President had engaged with the main incapacity argument and that the asserted credibility challenge had not been directly raised. The judgment does not attempt to define every form of argument that would be “substantial” or “clearly articulated”; it applies those terms to Mars’ submissions ([84]-[88]).
Finally, the judgment resolves the appeal and sets a timetable for costs submissions, but it does not determine costs in the reasons. The issue was left to be determined on the papers after written submissions ([92]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mars Australia Pty Limited v Knight [2025] NSWCA 229
Hearing dates: 23 September 2025
Date of orders: 20 October 2025
Decision date: 20 October 2025
Before: Adamson JA at [1];
Stern JA at [2];
Ball JA at [93]
Decision: (1) Appeal dismissed.
(2) Mars Australia Pty Limited is to file and serve submissions as to costs, of no more than three pages, by 4 pm on 27 October 2025.
(3) Mr Knight is to file and serve responsive submissions as to costs, of no more than three pages, by 4 pm on 3 November 2025.
(4) The issue of costs will be determined on the papers.
Catchwords: WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member – Presidential member dismissed appeal on basis that findings made at first instance were “open” prior to decision in State of New South Wales v Culhana [2025] NSWCA 157 – whether the error was material – where there was no realistic possibility that appeal would have been upheld had the correct standard of review been applied
WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member – alleged constructive failure to exercise jurisdiction – where no constructive failure to exercise jurisdiction
Legislation Cited: Workers Compensation Act 1987 (NSW), ss 4, 16, 36, 37, 60
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353
Cases Cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
State of New South Wales v Culhana [2025] NSWCA 157
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Category: Principal judgment
Parties: Mars Australia Pty Limited (Appellant)
Anthony Knight (Respondent)
Representation: Counsel:
J Emmett SC, K Bones (Appellant)
D Lloyd SC, R Goodridge (Respondent)
Solicitors:
Bartier Perry (Appellant)
Firths The Compensation Lawyers (Respondent)
File Number(s): 2024/472383
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Mr Knight claimed that his employment by Mars Australia Pty Limited (Mars) as an operations technician over a 19 year period resulted in the development of osteoarthritis in both of his knees.
Prior to commencing employment with Mars, Mr Knight had no problems with his knees. In his role at Mars, he was required to fix machinery, namely a palletiser, which involved him getting into the machine on his hands and knees in order to unjam it about 30 times per day and also performing electrical work in awkward positions involving squatting and kneeling.
Mr Knight developed pain in both his right and left knees in association with activities away from his work, respectively in 2008 and 2011, following which arthroscopies were performed. Meniscal tears and arthritic changes were reported on each arthroscopy.
Mr Knight gave evidence that by 2018, his left knee pain had worsened to the point that it was a regular pain at the end of each working day and that he accepted an offer of voluntary redundancy as he was having difficulties performing his duties because of the pain. His last day of employment with Mars was 13 September 2019.
In November 2020, Mr Knight secured employment with Tip Top Bakeries operating a packing machine. He conducted that work from a seated position. After about ten weeks, a supervisor noticed that Mr Knight was limping and he was shortly thereafter advised that his services were no longer required. In November 2021, Mr Knight obtained work with Stephen Smith Contracting Pty Limited driving a light commercial van and doing some light cleaning work. He did that work until July 2022 when his knee condition deteriorated and he was unable to continue. Mr Knight then worked with Agrana Fruit driving a forklift from 4 to 17 July 2022. He said this was “very light duties” but he found that he was not able to continue in the role as a result of his knee injuries.
Mr Knight relied upon expert evidence from an occupational physician, Dr Dias, and two letters from his treating orthopaedic surgeon, Dr Lyons. Mars relied upon expert evidence from an orthopaedic surgeon, Dr Breit.
Dr Dias canvassed Mr Knight’s medical and employment history in some depth and concluded that Mr Knight’s symptoms and signs were consistent with a persistent aggravation of tricompartmental knee osteoarthritis as a result of the nature and conditions of his job with Mars. Dr Dias said he did not believe that any other employment contributed to Mr Knight’s injuries. At one part of Dr Lyons’ second letter, Dr Lyons said that he believed that Mr Knight’s work for Mars “which involved getting in and out of forklifts, working machinery in tight spaces, precipitated Mr Knight’s meniscal tears and has subsequently been a substantial contributing factor to the development of his arthritic process”. Dr Breit diagnosed Mr Knight with bilateral knee arthritis but concluded that his employment, both with Mars and subsequent employers, was unrelated to this injury.
A member of the Personal Injury Commission (the Member) determined that Mr Knight had sustained injuries to both knees as a result of his employment with Mars and that Mars was to pay compensation to Mr Knight. As regards Dr Lyons’ reports, the Member found that notwithstanding that Dr Lyons’ said that the specific injuries suffered by Mr Knight in 2008 and 2011 were “precipitated” by his work when the evidence was that they were caused by events outside his work, this was “not fatal” to his opinion as to the deterioration of Mr Knight’s condition during his employment. Mars appealed against this decision.
The Acting Deputy President of the Commission (the Acting DP) rejected all of Mars’ grounds of appeal save for an amendment to the deemed date of injury. As regards the Member’s reading of Dr Lyons’ report, the Acting DP concluded that “[o]thers may have adopted a different interpretation, but it does not follow the Member was in error in his view of the doctor’s intention”.
Mars appealed against this decision on two grounds, both of which contended that the Acting DP failed to perform the statutory task required under s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act).
The key issues before the Court were:
(i) whether the Acting DP erred in applying the wrong standard of appellate review when considering whether the Member erred in his treatment of the evidence of Dr Lyons by finding that Dr Lyons’ report did not intend to imply that the meniscal tears had been caused by the work with Mars; and
(ii) if the Acting DP erred in not finding that the Member had erred in his conclusion as to Mr Knight’s incapacity.
The Court (Stern JA, Adamson and Ball JJA agreeing) held, dismissing the appeal:
(1) An appeal to a presidential member of the Commission under s 352(5) of the 1998 Act, 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 standard of appellate review to be applied is the correctness standard: [5].
State of New South Wales v Culhana [2025] NSWCA 157, applied.
(2) Even if the wrong standard of appellate review had been applied, it must be shown that the error was material, which turns on whether there was a realistic possibility that the error could have made a difference to the result. Where the appellate court finds that there is only one legally correct conclusion on a particular legal or factual issue, that finding may be of determinative significance on the issue of materiality if the substantive outcome in the case depends upon that particular issue: [75]-[77].
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32; State of New South Wales v Culhana [2025] NSWCA 157, applied
As to issue (i)
(3) The Acting DP, having identified the ambiguity in Dr Lyons’ report as regards the causation of the meniscal tears, concluded that the Member’s “reading of the reports” was open to him. In so reasoning, the Acting DP erred in point of law: [78]-[79].
(4) The Member rejected Dr Breit’s evidence and accepted the evidence of Dr Dias. That analysis did not depend upon the terms of Dr Lyons’ report. The Acting DP held at [182] of his reasons that there was no error in the Member’s conclusions as to incapacity “based as they are on acceptance of [Mr Knight’s] and Dr Dias’ evidence”. That reinforces the conclusion that this was the critical evidence upon which the outcome of the appeal turned. However it was interpreted, Dr Lyons’ report could not have undermined the force of that evidence. There is no realistic possibility that the Acting DP would have upheld Mars’ appeal if he had applied the correct standard of appellate review: [81]-[83].
As to issue (ii)
(5) A constructive failure to exercise jurisdiction depends upon there having been a substantial, clearly articulated, argument relying upon established facts which the relevant decision-maker failed to consider or engage with. The Acting DP did engage with Mars’ submissions that challenged the Member’s conclusion that Mr Knight suffered incapacity as a result of his employment with Mars. Mars’ submissions before the Acting DP fell well short of directly raising a challenge to the Member’s acceptance of the credibility of Mr Knight’s evidence and other matters of facts: [84]-[87].
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, applied
(6) In any event, the Acting DP engaged with many of the matters Mars contended were not substantively considered. Further, in large measure the matters raised went to the credit of Mr Knight and as the Acting DP observed, these contentions went nowhere given the Member’s acceptance of the evidence of both Mr Knight and Dr Dias: [88].
ADAMSON JA: I agree with Stern JA.
STERN JA: This appeal under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act) arises out of a claim for compensation, including for the cost of bilateral knee replacements, under the Workers Compensation Act 1987 (NSW) (1987 Act) submitted by the respondent, Mr Knight, against the appellant, Mars Australia Pty Limited (Mars), in November 2021. Mr Knight claimed that his employment by Mars as an operations technician, over the period 4 September 2000 to 13 September 2019, was the main contributing cause, or was the main contributing factor to the aggravation and exacerbation, of osteoarthritis in both of his knees such that he had sustained a disease injury within the meaning of either ss 4(b)(i) or (ii) of the 1987 Act. These subsections provide that an injury includes a “disease injury” which means:
(i) a disease that is contracted by a worker in the course of his employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease...
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
…
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
By Certificate of Determination dated 1 December 2023, following a hearing on 30 October 2023 and the giving of oral reasons on 27 November 2023 by a member of the Personal Injury Commission (the Member and the Commission, respectively), the Commission determined that:
under ss 4(b)(ii) and 16 of the 1987 Act, Mr Knight had sustained injuries to both knees as a result of his employment with Mars, that the deemed date of those injuries was 20 September 2021 and that Mr Knight’s employment with Mars was the main contributing factor to the aggravation of the disease process in Mr Knight’s knees; and
Mars was to pay weekly compensation to Mr Knight under ss 36 and 37(1) of the 1987 Act and was also to pay for the costs of and incidental to bilateral knee replacements, including the surgery on 4 April 2023, under s 60 of the 1987 Act.
Mars appealed against this decision under s 352(1) of the 1998 Act, seeking to have the Certificate of Determination and award of compensation revoked or, alternatively, seeking remittal for redetermination. Under s 352(5), such an appeal 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. Recently, in State of New South Wales v Culhana [2025] NSWCA 157 (“Culhana”), this Court held that the standard of appellate review to be applied is the correctness standard, applying the approach in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. As explained in Culhana at [91]:
Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was “open” to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.
In so holding, this Court found that the first “general principle” concerning the operation of s 352 of the 1998 Act, as set out by the Workers Compensation Commission constituted by Deputy President Roche in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (“Raulston”) and applied in a series of ensuing decisions (including, in one respect in the present case), was wrong.
On 2 December 2024, prior to the decision in Culhana, Geoffrey Parker SC, an Acting Deputy President of the Commission (the Acting DP), rejected all of Mars’ grounds of appeal and confirmed the Certificate of Determination save that he amended the deemed date of injury to 18 July 2022 (so as to correctly reflect the Member’s oral reasons).
Mars now appeals against this decision on two grounds, both of which contend that the Acting DP failed to perform the statutory task required under s 352(5) of the 1998 Act. Mars’ two grounds of appeal correspond to two of the grounds of appeal relied upon by Mars before the Acting DP. The first alleged error, reflected in ground one on this appeal, is that the Member erred in his treatment of the evidence of Dr Matt Lyons, orthopaedic surgeon, to whom Mr Knight had been referred for surgical review in December 2021, and in turn, the Acting DP erred in applying the standard of appellate review as set out in Raulston, which was found, in Culhana, to be wrong. The relevant evidence of Dr Lyons was comprised in letters dated 14 December 2021 and 13 December 2022, both of which were before both the Member and the Acting DP. The second alleged error, reflected in ground two on this appeal, is that the Acting DP erred in not finding that the Member erred in his conclusion as to Mr Knight’s incapacity. This ground of appeal relies in part upon the standard of appellate review applied, but beyond this Mars contends that the Acting DP simply did not deal with the substantive submission advanced by Mars.
For the reasons set out below, the appeal should be dismissed.
Mr Knight relied upon three written statements before the Member and was also cross-examined. The Member accepted Mr Knight’s evidence generally, rejecting Mars’ contentions as to his credit. Before the Acting DP, Mars contended that some of the Member’s findings in this regard were erroneous, but the Acting DP rejected those contentions. As discussed in more detail below, there was no express challenge before the Acting DP to the Member’s acceptance of Mr Knight as a generally reliable witness, nor to a number of the Member’s findings consequent upon his acceptance of Mr Knight’s evidence. Those findings which were expressly challenged before the Acting DP are noted below.
Mr Knight’s evidence, accepted by the Member, was that prior to commencing employment with Mars he had no issues, difficulties or disabilities with his knees. In his role at Mars, Mr Knight was required to fix machinery, namely a palletiser, which involved him getting into the machine on his hands and knees in order to unjam it. This would take between five and ten minutes and Mr Knight estimated that he would have to do this about 30 times per day. The machines were located at the top of a stairway with 14 to 15 stairs and Mr Knight was required to ascend and descend the stairs each time he had to conduct this repair. Mr Knight was also required to perform electrical work on the machines. He said that this work had to be done in awkward positions involving squatting and kneeling. He estimated that this work would take on average about 15 minutes and he would have to do it at least three times per day. The Member noted that Mr Knight was not challenged in respect of the duties that he performed whilst employed by Mars.
An entry dated 22 October 2008 in a “Register of Injury/Illness Form”, signed by Mr Knight, recorded “Exercising at home, right knee became swollen post jog on 21/10/2008. Today painful and swollen at work”. In oral evidence Mr Knight said he recalled hurting his knee when exercising at home. Mr Knight said in his statement that prior to this he had been experiencing “intermittent aches and pains” but that the symptoms deteriorated whilst jogging. An arthroscopy was performed on 20 April 2009. A medial meniscal tear and arthritic changes in the knee were noted. A file note dated 25 May 2009 reported that the knee was fine, although he continued to have pain in the side of the knee when he went for a run.
Subsequently, in 2011, Mr Knight had an arthroscopy on his left knee. Again, a meniscal tear and arthritic changes were reported. In oral evidence Mr Knight said that he thought that he felt a popping sensation in his left knee when he was walking the dog. Mr Knight said he had intermittent pain in his knees between 2011 and 2018. By 2018, he said that his left knee pain had worsened to the point that it was a regular pain at the end of each working day. The Member accepted that Mr Knight sustained bilateral knee pain in the course of his employment with Mars well prior to September 2019.
[M]arked degenerative changes in both knee joints, especially involving the medial compartments. There is mineralisation of the meniscus bilaterally.
There is some synovial thickening or fluid bilaterally.
The appearances have progressed since the study of 2019.
Before the Acting DP, Mars unsuccessfully contended that the Member had disregarded this evidence. It was not contended before this Court that the Acting DP erred in rejecting this contention.
In November 2021, Mr Knight obtained work with Stephen Smith Contracting Pty Limited. He said that this work primarily involved driving a light commercial van (approximately 70% of the time) but also included some light cleaning work (approximately 30% of the time), noting that an offsider would do the heavier cleaning. Mr Knight described this work as “not physically demanding”. He did this work until July 2022 when his knee condition deteriorated and he was unable to continue.
On 5 November 2021, Mr Knight completed a “Workers Injury Claim Form” in which he reported pain and discomfort in his left knee from 2018. He said that it was not until 2021, after speaking with an ex-colleague about his problems and then consulting solicitors, that he became aware that he was entitled to make a claim “for simple wear and tear caused by [his] employment” and that he had a “workers compensation injury”. The Member accepted this explanation.
Mr Knight then worked with Agrana Fruit driving a forklift from 4 to 17 July 2022. He said this was “very light duties”. He was initially told that he would only have to drive the forklift and would not have to get in and out of it, however this did not eventuate and he was required to constantly get in and out of the forklift. He found that he was not able to continue in the role as a result of his knee injuries.
Mr Knight said that his employment with Mars involved tasks and duties that were much more physically demanding than any of his other employment and his subsequent employment was significantly less physically arduous. Despite the fact that Mr Knight told one of the experts, Dr Dias, that the employment at Tip Top Bakeries was similar to that at Mars, having regard to Mr Knight’s oral evidence and his account to the other two experts, the Member found that the Tip Top Bakeries job was “a much lighter job” than that with Mars.
Mr Knight underwent bilateral knee replacement surgery in April 2023.
Mr Knight recalls that his job role with Mars Australia was heavily manual, physical and repetitive in nature. His job role involved operating forklift machines, operating packing machines, fixing breakdowns on a daily basis, repetitive staircase climbing, frequent and repetitive kneeling, squatting and crouching, prolonged standing for the vast majority of his shift, and repetitive heavy manual handling of items weighing up to 20kg. He recalls that he would have to assist with fixing breakdowns and performing electrical work on machines which would involve work in confined spaces, frequent and prolonged kneeling, squatting and crouching and heavy pulling and pushing in awkward postures.
Dr Dias noted that Mr Knight did not have any previous injuries or known pre-existing conditions affecting his knees prior to commencing employment with Mars, but that within three to four years of commencing this employment he began to experience symptoms of intermittent pain, stiffness and discomfort affecting both knees. These symptoms were generally intermittent and would resolve with anti-inflammatory tablets but would then be exacerbated by the nature and conditions of his employment at that time.
He also noted that Mr Knight sustained a “right knee meniscal tear” when walking his dog (as set out above, Mr Knight’s evidence was that he thought that this was an incident involving his left knee) and that he underwent a procedure to address this on 20 April 2009. Dr Dias observed that Mr Knight was noted to have “Grade III osteoarthritic change throughout most of the medial compartment of his right knee” at this time. Dr Dias also noted that Mr Knight had experienced worsening symptoms in his left knee in early 2011 and underwent a procedure on 27 June 2011 to address this. At this time “Grade III-IV degenerative changes affecting the medial compartment” were observed. Over the next few years his symptoms of bilateral knee pain worsened until they were unremittingly severe. By September 2019 he could not cope with the demands of his job due to this pain.
Dr Dias said that Mr Knight described his job with Tip Top Bakeries as “similar to his long-standing pre-injury job role with Mars” (as set out above, the Member made a factual finding somewhat different to this) which led to a “transient exacerbation of bilateral knee pain, which reverted back to his baseline level of symptomatology” after he ceased that employment after 10 weeks. Dr Dias referred also to Mr Knight’s employment with Steven Smith Contracting, stating that Mr Knight could not cope with even this “light and sympathetic employment”.
Dr Dias noted that Mr Knight continued to suffer from “chronic symptoms of bilateral knee pain, stiffness and discomfort on a daily basis.”
With respect to Mr Knight’s “compensable physical injuries stemming from the nature and conditions of his employment” with Mars, Dr Dias said that his symptoms and signs were consistent with:
a persistent aggravation of tricompartmental right [and left] knee osteoarthritis (most severely affecting the medial compartment), as a result of the heavily manual and repetitive nature and conditions of his job role with [Mars] over the course of 19 years of employment
As a result of the nature and conditions of Mr Knight’s employment with Mars Australia Pty Ltd, in my opinion, Mr Knight has sustained a persistent and severe aggravation of mild constitutional degenerative changes affecting his right and left knees which were entirely asymptomatic, prior to the commencement of Mr Knight’s employment with Mars Australia in September 2000.
…
His symptoms have persisted over the course of the past three years since ceasing employment with Mars Australia in September 2019. Taking into account any constitutional non-employment related changes affecting Mr Knight’s right and left knees, in my opinion, 90% of Mr Knight’s symptomatology, disabilities and impairments affecting his right and left knees are attributable to the heavily manual and repetitive nature and conditions of his employment with Mars Australia. In my opinion, 10% of Mr Knight’s symptoms, disabilities and impairments with respect to his right and left knees could be attributable to constitutional and degenerative changes affecting his right and left knees which were asymptomatic prior to the commencement of his employment related conditions.
Dr Dias said the injuries had caused an “aggravation, acceleration and exacerbation of a pre-existing asymptomatic condition, namely degenerative tricompartmental bilateral knee osteoarthritis” and that Mr Knight’s employment with Mars was “a substantial contributing factor” and the “main contributing factor” to these injuries.
In respect of Tip Top Bakeries, Dr Dias stated that Mr Knight’s “symptoms of bilateral knee pain were transiently exacerbated, by the nature and conditions of his employment with Tip Top Bakeries however soon reverted to their baseline chronic level within one to two months of ceasing employment with Tip Top Bakeries” and that this employment was “not causally attributable to the causation or aggravation [of] his conditions affecting his right and left knees”. As to Mr Knight’s employment with Steven Smith Contracting, Dr Dias said that this did not result in “any aggravation or exacerbation of his work-related injuries affecting his right and left knees, which in my opinion, are causally attributable to his 19-year employment tenure with Mars”.
Dr Dias’ supplementary report confirmed his opinion that Mr Knight’s employment with Mars was the main and substantial contributing factor to the injuries affecting his knees. When asked about the role of Mr Knight’s employment subsequent to his employment with Mars, Dr Dias said:
I do not believe that Mr Knight’s subsequent employments … result in any permanent aggravation, acceleration or deterioration of the disease process in his right and left knees. I note, that Mr Knight did sustain a transient minor increase in symptoms of his conditions affecting his right and left knees as a result of his work at Tip Top Bakeries, as a machine operator, (for Forsythes Recruitment), between November 2020 and February 2021 however his transient increase of bilateral knee pain reverted to his baseline level of symptomatology after ceasing his employment with Tip Top Bakeries in February 2021.
I do not believe that any other employment held by Mr Knight, has contributed to his injuries affecting his right and left knees in any objective fashion.
has been problematic for a number of years to the extent that [Mr Knight] has recently ceased his job as an Electrician.
Based on a review of Mr Knight’s x-rays, Dr Lyons identified “advanced arthritic changes of the medial compartment” and “chondrocalcinosis of the lateral compartment and lesser arthritic changes of the patellofemoral compartment”. Dr Lyons said that a diagnosis of osteoarthritis was discussed with Mr Knight and that arrangements would be made for a total knee replacement.
Subsequently, on 13 December 2022, Dr Lyons responded in writing to a number of questions posed in a letter of instruction dated 13 September 2022 from Mr Knight’s solicitors. The letter of instruction included a statement that:
As you might be aware, the workers compensation insurer have declined liability for our client’s claim on the basis that they do not believe his employment with Mars Food Australia over a span of almost 20 years was the main or substantial contributing factor to his knee condition. They also suggest that his condition is a result of subsequent employment or other incidents such as jogging, however we note that any subsequent employment was for only short periods and that other incidents had no long lasting effect on our client.
Dr Lyons was provided with Dr Dias’ report dated 8 August 2022 for this purpose. As set out at [30] above, that report included reference to the circumstances preceding Mr Knight’s arthroscopies.
Dr Lyons confirmed that Mr Knight was suffering from “tricompartmental osteoarthritis of his knees”. In response to a question “What is the cause of our client’s condition?”, Dr Lyons said:
Mr Knight has advanced arthritis of both knees. He underwent knee arthroscopies with Dr Darren Paterson back in 2007 and 2009 whilst working for the Mars Company as an Operations Technician. It was noted at the time that he had chondral damage of the medial compartment in addition to a meniscal tear. This has deteriorated since those interventions.
No. Mr Knight does not have any pre-existing condition.
Yes, I do believe that Mr Knight’s occupation as a Operations Technician and an Electrician for the Mars Company which involved getting in and out of forklifts, working machinery in tight spaces, precipitated Mr Knight’s meniscal tears and has subsequently been a substantial contributing factor to the development of his arthritic process.
I do believe his employment was the major contributing factor to the development of his arthritic process [and then referred to his response set out immediately above].
Mr Knight is actually an electrician by trade and worked in that capacity until about 1997, after which he spent two years as a correctional services officer before joining your insured in September 2020 as an operations technician. I am told that involves setting up production lines as well as carrying out repairs.
This was the only information in Dr Breit’s report about Mr Knight’s duties in his employment with Mars.
Dr Breit diagnosed Mr Knight with bilateral knee arthritis.
In response to a question as to whether Mr Knight’s employment with Mars was the main contributing factor to his injury, Dr Breit said:
No, it was not. Mr Knight is trying to claim that the nature and conditions of his employment led to arthritis, a condition which is overwhelmingly constitutional and associated with trauma and obesity. He does not have a weight problem but he has been quite active and he has had both knees arthroscoped for meniscal pathology which were not work-related. The literature shows that such surgery inevitably results in arthritis due to the changed weightbearing status of the knee.
Dr Breit also said that he did not consider that Mr Knight’s employment by either Tip Top Bakeries or Steven Smith Contracting had been “relevant or contributing”. This was because the condition or pathology in Mr Knight’s knees was a disease process unrelated to those jobs, and “[Mr Knight had] described his short-term work at Tip Top as being ‘cruisy’ and his subsequent work has not been onerous either”.
As to capacity, Dr Breit’s opinion was that although Mr Knight suffered from incapacity, this was not work-related.
As the Acting DP observed, the transcribed oral reasons of the Member are “difficult to follow and understand” and “the findings supporting the Member’s determination are not always easily identified”. The Member’s key conclusions are, however, tolerably clear.
First, as already noted, the Member found Mr Knight to be generally credible and accepted much of his evidence.
Second, the Member preferred the report and opinion of Dr Dias to that of Dr Breit and accepted the opinion of Dr Dias. The Member did not accept Dr Breit’s opinion as to causation because he found that Dr Breit did not engage with Mr Knight’s specific employment duties at Mars and instead had “argued that it was simply a blanket argument that the employment duties are not related to [Mr Knight’s] condition” without explaining why specified employment duties were not so related. By contrast, the Member observed, Dr Dias took a detailed history of Mr Knight’s duties, the prior arthroscopies and the onset of symptoms (which the Member had accepted).
Third, as to Dr Lyons, the Member noted Mars’ submission that Dr Lyons had the history wrong to the extent that he had made “an assumption that the meniscal tears occurred in the context of [Mr Knight’s] work duties with [Mars] given [Mr Knight’s] unequivocal evidence that each knee was injured in circumstances occurring outside the workplace”. The Member noted Dr Lyons’ unequivocal view that Mr Knight’s work duties at Mars were a substantial contributing factor to the arthritic process. The Member also noted that there was no discussion in Dr Lyons’ report of “the circumstances in which [Mr Knight] thereafter underwent surgery to each knee”, and that while he had said that his work precipitated the meniscal tears, this was “not fatal” to his opinion. The Member said that what was important was Dr Lyons’ “more detailed than Dr Breit’s” recording of the duties Mr Knight undertook at Mars and his opinion as to the deterioration in Mr Knight’s condition during his employment with Mars. That provided “a fair climate” for Dr Lyons’ opinion which the Member interpreted on the basis that it lent support to Mr Knight having suffered an aggravation of a pre-existing degenerative condition in circumstances where “an assumption … can’t be made out one way or the other as to whether or not those earlier arthroscopies were related to [Mr Knight’s] employment”. Thus, the Member found that Dr Lyons’ opinion “still stands”.
Fourth, the Member upheld Mr Knight’s claim that the bilateral osteoarthritis in his knees was an aggravation of a pre-existing degenerative condition of osteoarthritis in both knees which was due to the nature of Mr Knight’s employment with Mars. The Member said that his conclusion was supported by a “common sense appraisal of the causal chain”, which was supported by Dr Cavanagh’s notes, Mr Knight’s evidence both in his statements and in cross-examination and the opinions of both Dr Lyons and Dr Dias. Significantly, explaining his key conclusion that Mr Knight’s employment with Mars caused the injury to his knees, the Member said:
So – and in my view – the evidence supports that common sense link between the nature of the [Mr Knight’s] employment and the onset of symptoms in both knees which – which amounted, in my view, based on the opinion of Dr Dias to being an aggravation of a pre-existing osteoarthritic degenerative condition being a disease process and, indeed, consistent with the opinion of Dr Lyons that this was also a disease process.
As is apparent, the Member here relied upon Dr Dias’, but not Dr Lyons’, opinion as to causation (which he also accepted). He relied upon Dr Lyons’ opinion as to the injury to Mr Knight’s knees being a disease process.
Fifth, the Member noted that none of the experts said that Mr Knight’s employment subsequent to Mars was related to his bilateral knee conditions and rejected Mars’ submission to this effect. In this regard, the Member also relied upon Mr Knight’s evidence as to the continuity of his symptoms in both knees after 2019, and upon his rejection of Mars’ contentions that Mr Knight’s symptoms had not deteriorated in the course of his employment at Mars.
Sixth, the Member found that the date from which Mr Knight ceased to have any capacity for work was 18 July 2022, being the day after his last day working for Agrana Fruit (albeit that, as noted by the Acting DP, the Certificate of Determination did not accurately reflect this date of incapacity).
1. That the Member erred in law in failing to give proper and adequate reasons.
2. That the Member’s decision is affected by several errors of fact and law, namely:
(a) that the Member disregarded the radiological evidence of Dr Lannan contained in [a] report dated 21 September 2021.
(b) that the Member erred in his treatment of the evidence of Dr Lyons.
(c) that the Member erred in his conclusions as to the worker’s incapacity.
(d) that the Member erred in his treatment of the evidence relating to the worker’s attendance at Wyong Hospital on 13 October 2019.
(e) that the Member erred in his treatment of the evidence relating to the absence of complaint of knee problems in the clinical notes of Dr Cavanagh.
3. That the Member erred in the exercise of his discretion and committed error of law in refusing the appellant’s application to cross-examine Dr Dias
Ground 2(b) reflects ground one in this Court. Ground 2(c) reflects ground two in this Court. Given the ambit of ground two in this Court, and that it indirectly raises issues under other grounds, it is necessary to refer to the Acting DP’s reasons for rejecting all grounds of appeal.
The Acting DP summarised the most important facts and findings of the Member. These included that the Member had generally accepted the credibility of Mr Knight; that the Member had observed that Mr Knight had not been challenged as to the duties he performed at Mars; that the Member had accepted Mr Knight’s evidence that the work at Tip Top Bakeries was lighter than the work with Mars and Dr Dias’ finding that the Tip Top Bakeries job had caused a “transient exacerbation” of the bilateral knee pain; that the Member preferred the evidence of Dr Dias to that of Dr Breit and did not accept Dr Breit’s opinion as to causation; and that the Member did not accept that Mr Knight’s condition deteriorated after leaving the employ of Mars.
As regards Mars’ contentions on ground 1, the Acting DP described Mars’ complaint as being, in part, that “the Member failed to provide adequate reasons for not accepting [Mars’] submission of a tangible worsening of [Mr Knight’s] knee problems in conjunction with subsequent employment”; that the Member had relied in this regard simply on the opinions of Dr Dias and Dr Lyons; and that the Member’s reasons were logically inconsistent with the fact that the date of injury was two to three years after Mr Knight ceased employment with Mars. As is apparent, these contentions attack both the logic of the Member’s reasoning and the adequacy of the reasons given. The Acting DP’s reasons for rejecting these contentions relied upon the Member’s acceptance of Mr Knight’s evidence in key relevant respects, including that Mr Knight had been hanging on for a voluntary redundancy notwithstanding chronic debilitating pain, and upon the Member’s acceptance of the evidence of Dr Dias.
As regards Dr Lannan’s report, the Acting DP rejected the contention that the Member had erred in his treatment of this report, noting that Mars’ proposition that Dr Lannan’s report showed changes that were consequent upon Mr Knight’s work at Tip Top Bakeries “does not follow from the report”. The Acting DP observed that the medical evidence accepted by the Member did not demonstrate that the radiological changes were due to work at Tip Top Bakeries or the subsequent employment.
As regards the Member’s treatment of Dr Lyons’ report, Mars submitted that Dr Lyons’ report was flawed because he assumed that the bilateral meniscal tears were caused by employment, whereas the evidence demonstrated that these injuries were caused by events occurring outside of the workplace. As to this, the Acting DP found that:
[178] Dr Lyons’ second report is ambiguous with respect to the meniscal tears for which he received arthroscopic surgery. The Member regarded a “fair reading” of Dr Lyons’ reports to be that the doctor found the operations had occurred when the respondent was employed by the appellant and notwithstanding the use of the word “precipitated”, Dr Lyons was not intending to imply the meniscal tears had been caused by the work with the appellant. That was a reading of the reports that was open to the Member. Others may have adopted a different interpretation, but it does not follow the Member was in error in his view of the doctor’s intention.
[179] No error on the part of the Member is demonstrated
A footnote to [178] of the Acting DP’s decision referred to the decision of Raulston which, as I have already observed, was disapproved of in Culhana.
As to the contention that the Member erred in his conclusions as to Mr Knight’s incapacity, Mars’ written submissions before the Acting DP stated that its submissions at first instance pointed overwhelmingly to the conclusion that:
Mr Knight was not incapacitated at the time his employment with Mars ceased;
Mr Knight’s employment at Tip Top Bakeries and Agrana Fruit was aggravating and caused a deterioration in his condition;
Employment subsequent to Mr Knight’s employment with Mars was the main contributing factor to the aggravation of the pre-existing osteoarthritic changes; and
The date of incapacity as found by the Member, which occurred after cessation of employment with Mars, was not reflective of aggravation caused by employment with Mars and established that Mars was not the last relevant employer for the purposes of the 1987 Act.
There was a footnote to this submission that referred to Mars’ submissions before the Member at “[9][a]-[pp]”. Paragraph 9 of those submissions had the chapeau “[t]he evidence up to [late 2021] bears careful analysis, and in particular”, followed by 42 sub-paragraphs referring to aspects of the evidence. Those 42 sub-paragraphs can be broadly summarised as referring to:
The arthroscopies in 2009 and 2011 and to the circumstances preceding those operations and the lack of symptoms prior to 2008 (a, b, c, d, f, g);
Accommodations (including the availability of an occupational health nurse) made for Mr Knight at Mars after those procedures, the willingness of Mars to make those accommodations, and the lack of any certificates restricting Mr Knight’s capacity to work or request for modification of work whilst at Mars and an alleged inconsistency in Mr Knight’s evidence that he thought Mars would only accommodate a week of suitable duties (d, e, h, i, j, k, p, q, r);
The records of Dr Cavanagh, referred to at [14] above (l, m, y);
Mr Knight’s awareness of the option of voluntary redundancy and the timing of him taking redundancy (n, o);
The terms of Mr Knight’s exit medical assessment (s, t);
The Wyong Hospital notes, referred to at [16] above (u, v, w);
The Forsythes Recruitment questionnaire and the information on a Forsythes document, referred to at [17] above, and that he made himself available for medical assessment at that time (x, z, aa);
Dr Dias having recorded that Mr Knight said that his work at Tip Top Bakeries was similar to that at Mars, and that that work was described in documents produced by Forsythes Recruitment as not entirely sedentary and the fact that Mr Knight was limping at Tip Top Bakeries, and that Mars had not been permitted to cross-examine Dr Dias (cc, dd, ee, ff, gg, hh, ii);
[181] The submissions in support of this ground of appeal are largely a repetition of what is advanced with respect to other matters in the appeal and are dealt with in that context. However, this alleged error highlights the difficulty [Mars] has in succeeding in the appeal in circumstances where the Member has accepted [Mr Knight’s] evidence that the subsequent employment caused a transient increase in symptoms such that the condition of the knees returned to that in which they were as a consequence of the employment with [Mars]. Furthermore, the acceptance of Dr Dias’ evidence makes the asserted error with respect to this issue untenable.
[182] There is no error with respect to the Member’s conclusions as to incapacity based as they are on acceptance of [Mr Knight’s] and Dr Dias’ evidence.
1. As to appeal ground 2(b) of the appeal to the Deputy President, the Deputy President erred in point of law in that:
a. in the interpretation of the Member’s reasons at first instance, the Deputy President held that the Member read Dr Lyons’ report as not intending to imply that meniscal tears in around 2007 or 2009 had been caused by the work with the appellant (decision below at [178]);
b. further or as a result, the Deputy President failed to perform his task of considering whether there was an error of fact or law in the Member’s reasons, by reference to the Deputy President’s own assessment of how Dr Lyons’ report should be understood (decision below at [178]-[179]).
2. As to ground 2(c) of the appeal to the Deputy President, the Deputy President erred in point of law by failing to ask himself whether there was an error of fact in the Member’s acceptance of the [Mr Knight’s] evidence as described in the decision below at [181], having regard to [Mars’] submissions at first instance at [9](a)-(pp) and the submissions to the Deputy President at [47] (decision below at [181]).
353 Appeal against decision of Commission constituted by presidential member
(1) If a party to any proceedings under the Workers Compensation Acts before the Commission constituted by a presidential member is aggrieved by a decision of the presidential member in point of law, the party may appeal to the Court of Appeal.
Making out legal error in the decision of the presidential member will not necessarily lead to the decision being overturned. Section 353(2) of the WIM Act provides that this court may then remit the matter and may make such other orders in relation to the appeal as it thinks fit. The powers are discretionary. They will not in general be exercised unless the error is material: see, analogously, Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177; Melino v Roads and Maritime Services (2018) 98 NSWLR 625; [2018] NSWCA 251 at [52]. Materiality involves considering whether there is a realistic possibility that the error could have made a difference to the result. That understanding is consistent with the requirement for materiality in establishing jurisdictional error: for example, MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2]. It also is consistent with common law principle in relation to ordering new trials: Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 at [27]–[28]; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [7].
[92] There are apt to be decisions by the Commission constituted by a Presidential member which have applied the approach overturned by this Court’s judgment. Some may be pending appeals to this Court; others may be cases where no appeal has been lodged. The fact that a Presidential member has applied the incorrect approach does not without more mean that a further appeal to this Court under s 353 will be allowed. It will be necessary to establish material error of law. Unless it be shown that an application of the approach in Warren v Coombes and Fox v Percy and Lee v Lee would make a difference, an appeal will be dismissed.
[93] The nature of the task is such that it ought to be possible to establish such an error in this Court, which after all will be in the same position as the Presidential member in hearing and determining an appeal on the papers. Further, as Basten JA explained in Workers Compensation Nominal Insurer v Hill [[2020] NSWCA 54; 295 IR 172] at [20], the distinction is a fine one, and it may be that there are relatively few cases where it is material.
Mars’ contention under ground one, simply stated, is that the Acting DP applied the wrong standard of appellate review when considering Mars’ contention that the Member had erred in the conclusions that he had expressed as regards Dr Lyons’ evidence. Mars contended that the Acting DP should have applied the correctness standard of appellate review but, instead, the Acting DP rejected Mars’ contention on the basis that the Member’s interpretation of Dr Lyons’ opinion was “open to him”. Mr Knight, for his part, contends that the Acting DP did not err. He submits that it is important to look beyond the language used by the Acting DP, and to focus upon the substance of his reasoning which was to affirm the correctness of the Member’s interpretation of Dr Lyons’ report.
I agree with Mr Knight’s contention that it is important to focus upon the substance of the Acting DP’s reasoning having regard to his decision as a whole. Taking that approach does not, however, resolve the difficulty identified by Mars. The inescapable fact is that the Acting DP, having identified the ambiguity in Dr Lyons’ report as regards the causation of the meniscal tears, goes no further than to identify that the Member’s “reading of the reports” was open to him. On that basis, having regard to the now disapproved of authority of Raulston, the Acting DP found that Mars’ contention as to error should be rejected. In so reasoning, the Acting DP erred in point of law.
It is thus necessary to consider whether or not this error is material in the sense that it could realistically have made a difference to the result before the Acting DP. Mars’ contention in this regard is that Dr Lyons’ report could be read as providing support for the opinion of Dr Breit, which could, in turn, have led to Mr Knight’s claim for compensation being dismissed. Mars also submits that it is entitled to a determination by a Deputy President, being an expert body, of its submissions as to the proper interpretation and significance of Dr Lyons’ report.
Those contentions should be rejected. The Member rejected Dr Breit’s evidence and accepted the evidence of Dr Dias. That analysis did not depend upon the terms of Dr Lyons’ report, albeit that the Member did regard Dr Lyons’ report as supportive of his conclusion as to causation. Moreover, Dr Lyons’ report, whilst somewhat ambiguous as to whether or not Dr Lyons was intending to suggest that the meniscal tears in Mr Knight’s knees were the result of the work he undertook in his employment at Mars, cannot be read so as to provide support for Dr Breit’s opinion. On no view does Dr Lyons suggest that Mr Knight’s bilateral osteoarthritis was unrelated to work duties, or that arthroscopic procedures inevitably result in osteoarthritis (which was the gravamen of Dr Breit’s opinion).
Thus, whilst there is ambiguity as to whether or not Dr Lyons considered that Mr Knight’s employment duties at Mars themselves contributed to his meniscal tears, and whether or not in reaching that conclusion he took into account the history preceding the arthroscopies in 2009 and 2011 as recorded in Dr Dias’ report (which Dr Lyons was provided with), that ambiguity could, at most, have led to Dr Lyons’ opinion being discounted (as to some extent it was by the Member: see [57] above). That would still have left the report of Dr Dias, which was accepted by the Member, and which supported Mr Knight’s claim. Further, the Acting DP held at [182] of his reasons that there was no error in the Member’s conclusions as to incapacity “based as they are on acceptance of [Mr Knight’s] and Dr Dias’ evidence”. That reinforces the conclusion that this was the critical evidence upon which the outcome of the appeal turned. However it was interpreted, Dr Lyons’ report could not have undermined the force of that evidence.
Mars’ contention in ground two is that the Acting DP erred in failing to appreciate, or substantively to consider, that Mars’ contention in ground 2(c) relied upon all of the matters identified in paragraph 9 of Mars’ submissions before the Member, which are summarised above at [70]. These, Mars contends, challenged a multitude of the Member’s findings, including his overarching conclusion as to the credibility of Mr Knight’s evidence. Mars submits that, in this way, Mars made a substantive, clearly articulated, contention, which the Acting DP did not engage with, that the Acting DP should revisit all of the credit and factual findings that led to the Member’s ultimate conclusion. Further, Mars contends, the Acting DP erred in stating that Mars’ submissions under ground 2(c) were largely repetitive of what was advanced in respect of its other grounds and had been dealt with in that context. In this regard, Mars contends that there was a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. Mars also contends that the Acting DP applied the wrong standard of appellate review, relying upon Culhana.
Mars’ contentions should be rejected for three reasons.
First, a constructive failure to exercise jurisdiction depends upon there having been a substantial, clearly articulated, argument relying upon established facts which the relevant decision-maker failed to consider or engage with. Mars’ submissions before the Acting DP challenged the Member’s conclusion that Mr Knight suffered incapacity as a result of his employment with Mars. That substantial, clearly articulated, argument was directly engaged with by the Acting DP and rejected. There was no constructive failure to exercise jurisdiction.
Had Mars sought, for example, to challenge the Member’s credit findings before the Acting DP, it could, and should, have included a ground of appeal to that effect, much as it included a number of grounds of appeal challenging specific aspects of the Member’s decision-making. Such a submission would, of course, have had to grapple with the limitations on appellate review of fact finding, which are well recognised and are reiterated in Culhana. Mars’ submissions made no attempt to engage with those limitations. Mars’ submissions before the Acting DP fell well short of directly raising a challenge to the Member’s acceptance of the credibility of Mr Knight’s evidence. The same analysis applies as regards the other matters of fact raised in Mars’ submissions before the Member at paragraph 9.
Second, and in any event, as is clear from the summary of the Acting DP’s decision set out above, the Acting DP engaged with many of the matters raised in paragraph 9 of Mars’ submissions before the Member. The Acting DP’s analysis of Mars’ reasons challenge (ground one before the Acting DP), engaged with contentions as to illogicality of the Member’s reasoning having regard to the evidence. The Acting DP also engaged with Mars’ criticisms of the Member’s findings as regards Dr Lannan’s report, Dr Cavanagh’s notes and what was or was not said at Mr Knight’s Wyong Hospital admission. In addition, as is clear from my summary of Mars’ contentions in paragraph 9 of its submissions before the Member at [70] above, in large measure the matters raised went to the credit of Mr Knight. As the Acting DP observed, given this, Mars’ contentions went nowhere given the Member’s acceptance of the evidence of both Mr Knight and Dr Dias.
It follows from my reasons as set out above that the appeal should be dismissed. Mars sought the opportunity to make written submissions as to costs after we delivered reasons. That opportunity should be given.
I propose the following orders:
Appeal dismissed.
Mars Australia Pty Limited is to file and serve submissions as to costs, of no more than three pages, by 4 pm on 27 October 2025.
Mr Knight is to file and serve responsive submissions as to costs, of no more than three pages, by 4 pm on 3 November 2025.
The issue of costs will be determined on the papers.
BALL JA: I agree with Stern JA.
**********
Mars Australia Pty Limited
Knight [2025] NSWCA 229
(2024) 114 NSWLR 1
(2003) 214 CLR 118
(1979) 142 CLR 531
(1991) 24 NSWLR 156
(2018) 98 NSWLR 625
(2021) 273 CLR 506
(2002) 209 CLR 203
(2002) 209 CLR 478
Appeal dismissed. Mars was directed to file and serve costs submissions of no more than three pages by 4 pm on 27 October 2025; Mr Knight was directed to file and serve responsive submissions of no more than three pages by 4 pm on 3 November 2025. Costs were to be determined on the papers ([92]).
There were only limited references in the notes of Mr Knight’s general practitioner, Dr Cavanagh, to Mr Knight complaining about his knees. The Member accepted Mr Knight’s evidence that from 2016 (or perhaps even earlier) he had intermittently consulted Dr Cavanagh complaining of bilateral worsening knee pain but that Dr Cavanagh had not recorded this in his notes. The Member found that Mr Knight had “complained of symptoms which I’ve accepted in his knees over the years up until he ceased employment with [Mars]”. Mars unsuccessfully sought to challenge some aspects of this finding before the Acting DP, but did not contend in this Court that the Acting DP erred in rejecting that challenge. Mr Knight’s evidence, which the Member also accepted, was “that those symptoms continued after ceasing” that employment.
Mr Knight took voluntary redundancy, and 13 September 2019 was his last day of employment with Mars. Mr Knight said that he took the offer for voluntary redundancy as he was having difficulties performing his duties due to his knee injuries. Again, the Member accepted this evidence. A medical exit assessment was conducted on 19 August 2019, at which it was noted that he had bilateral knee pain, “OA” [osteoarthritis], and “Mild/Moderate OA both knees severe [L]. [L] side > [R]”. Left sided low back pain was also noted. As for general health, the assessment noted that he was “fit no major issues”. The Member found that Mr Knight’s declaration in this form should be understood by reference to the fact that he did not at that time realise that “the ongoing persisting pain that he felt over the years in his knees amounted to an injury”. The Member also found that this was the reason why Mr Knight had not, for some time subsequently, provided notice of his claim to compensation to Mars.
After taking voluntary redundancy, Mr Knight was admitted to Wyong Hospital for a psychological condition. There was no mention of any problem with his knees in the medical records from this hospital admission. On appeal to the Acting DP, Mars contended that the Member had erred in his treatment of this evidence. The Acting DP rejected that ground of appeal and it was not contended before this Court that the Acting DP had erred in so finding.
On 8 October 2020, Mr Knight completed a pre-employment questionnaire for Forsythes Recruitment. In this questionnaire he indicated that he did not have any prior difficulties engaging in work that might aggravate injuries, such as lifting awkward objects or engaging in repetitive manual work. Mr Knight said that he provided this response because he believed that if he disclosed his injury he would not get employment. The Member accepted this explanation.
In November 2020, Mr Knight secured employment with Tip Top Bakeries through Forsythes Recruitment. He was employed to work full-time operating a packing machine and he conducted this work from a seated position from which he only needed to rise if the machine became blocked or jammed. If this occurred, he would then stand beside the machine to clear the blockage. This happened about ten times per day. After about ten weeks, a supervisor noticed that Mr Knight was limping and he was shortly thereafter advised that his services were no longer required.
Mr Knight said that the Tip Top Bakeries work was the lightest employment he could possibly find.
X-rays on both of Mr Knight’s knees dated 21 September 2021 were reported by Dr Lannan (Dr Lannan’s report) as showing:
Dr Lannan’s report (jj, kk); and
That Mr Knight was recorded as being in pain in 2021 but denied worsening symptoms, that his employment at Agrana Fruit was also provocative, and generalised assertions as to conclusions that should be drawn from the contemporaneous records or evidence as a whole (bb, mm, nn, oo, pp).
The Acting DP rejected these contentions, explaining:
In follows that there is no realistic possibility that the Acting DP would have upheld Mars’ appeal from the Members’ decision if he had applied the correct standard of appellate review.
Third, it is clear that the Acting DP considered the correctness of the Member’s conclusion as to incapacity, and did not apply the wrong standard of appellate review. There is nothing in the Acting DP’s analysis that suggests he limited his consideration only to what conclusion was “open” to the Member.
In these circumstances, ground two should be rejected.