(a) Application to Resolve a Dispute and attached documents, and

(b) Reply and attached documents.

A brief statement is attached setting out the Commission's reasons for the determination.

1. On 28 November 2019, Debra Murray (the applicant) sustained injury to her lumbar spine in the course of her employment with Katz Pty Ltd (the respondent).
2. On 24 July 2021, the applicant sustained head injury and anosmia condition as a result of a fall while on a family outing while moving into her "Winnebago" or recreational vehicle or motorhome. The applicant stated that this fall was the result of a lumbar spine nerve spasm. The respondent disputed this allegation.
3. The applicant claimed lump sum compensation for permanent impairment of the lumbar spine and anosmia condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
2. At the conciliation/arbitration hearing of this matter the applicant was represented by

Mr Adhikary of counsel, and the respondent by Mr Tanner of counsel.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents, and

(b) Reply and attached documents.

1. The applicant provided statements dated 30 March 2024 and 11 July 2024. These statements were relevantly to the effect that on 24 July 2021, following lumbar spine nerve spasm, she lost her footing while moving into her recreational vehicle, fell and suffered a head injury (the fall). She was taken by ambulance to the John Hunter Hospital. She said that she had consumed some alcohol over the course of the day leading up to the fall but was not intoxicated, and the prior consumption did not play a role in the fall.
2. Her son, Jonathon Tunney, provided a statement dated 15 July 2024, in which he provided his observations of the applicant over the course of the day and at the time of the fall.
3. Also before me were treating reports, records and notes including those of the Ambulance Service, John Hunter Hospital, Dr Newing, general practitioner (GP), Dr Volschenk, pain management specialist and Ms Briscoe-Hough, as well as physiotherapy notes. These are noted below.
4. Additionally there were before me medico-legal reports of Dr Hopcroft, orthopaedic surgeon, 24 August 2022, Dr Howison, ear nose and throat surgeon, 3 May 2023, Dr Rowe, orthopaedic surgeon, 19 July 2023, and Dr Raj, ear nose and throat specialist,

1. The applicant claims lump sum compensation for injury on 28 November 2019 in respect of the lumbar spine and anosmia (ear, nose, throat and related structures).
2. The respondent did not dispute that the applicant fell on 24 July 2021 and sustained injury to her head. However, the respondent disputed that the fall on 24 July 2021 was in any way related to the accepted injury to the applicant's back on 28 November 2019. The respondent did not dispute that the applicant sustained an anosmia condition resulting from the fall on

24 July 2021. 3. The respondent submitted that the applicant's version of events should not be accepted because:

(a) the evidence was that the applicant had been drinking wine from about lunchtime that day. As a matter of common experience I should conclude that excessive alcohol consumption is going to have a bearing on a person's balance and coordination and vision and reflexes;

(b) there were entries in clinical records which indicated regular consumption of alcohol over a period of time prior to 24 July 2021;

(c) ambulance and hospital entries on 24 July 2021 and during subsequent hospital admission noted alcohol consumption on 24 July 2021, and missing a step while carrying cups and plates at the time of the fall on 24 July 2021;

(d) the same ambulance and hospital records had no record of back spasm related to prior back injury;

(e) the applicant's statements contained a dramatic description that she was "effectively paralysed" by this back spasm, which was a retrospective reconstruction some years after the event, and which would have been expected to be recorded in the records noted above. Her statement was also an effort to downplay the effects of alcohol consumption on 24 July 2021, and

(f) the statements of the applicant should not be accepted, and hence her onus has not been discharged.

1. Turning first to the applicant's description of being "effectively paralysed", it seems to me that, while at first blush it might appear that there may be some element of overstatement in this description, it is not the case that the applicant said she was paralysed, nor is it the case that the context of the applicant's statement rules out the use of the qualified description that she used. That is, she used this description in relation to the nerve spasm that she said that she felt in her back as she ascended the steps into her recreational vehicle or motor home. Indeed, this description was consistent with records of pain prior to 24 July 2021, as discussed below.
2. In relation to alcohol consumption on 24 July 2021, the applicant said that, while she had drunk some wine over the course of about seven hours with meals, she had not drunk the amount recorded in the ambulance and hospital records and she was not intoxicated at the time of the fall. The respondent said this should not be accepted, given the prior history of alcohol consumption, the circumstances of drinking on the day, and reconstruction of events some three years after the incident.
3. However, the statement of Mr Tunney was not challenged. I accept his statement as to the matters for which he has provided evidence and in providing support for the applicant's statements. His recollection was that the applicant had consumed significantly less than recorded in the ambulance and hospital notes, and that he had observed that she was not intoxicated or affected by alcohol at the time of the fall. I do not accept that records of past alcohol consumption indicated that the applicant downplayed her consumption on

24 July 2021. 4. Further, the ambulance record did not identify the source of information as to the consumption of alcohol. The applicant's husband was noted as describing her as stunned after the fall, but there was no identity given as to who provided the information as to alcohol consumption. The hospital triage and initial notes were similar. There was no detailed record, quite understandably from the point of view of an emergency service first responder, of what was said in this context. I apply the caution identified by Basten JA in Mason v Demasi.[1] I will return to this further below. 5. Moreover, there were no observations or comments at all in the ambulance and hospital records as to any signs or effects of alcohol consumption or intoxication on 24 July 2021. There were no comments at all in these records as to any relationship between alcohol consumption and the fall. 6. The prior records of alcohol consumption do not in my view assist in considering alcohol consumption on 24 July 2021. I have accepted the evidence of Mr Tunney, which supports acceptance of the applicant's evidence in this regard. 7. In my view, in these circumstances I cannot conclude that in this case as a matter of common experience "excessive" alcohol consumption has a bearing on a person's balance and coordination and vision and reflexes. A note, or notes, of purported alcohol consumption, without more, does not in my view impugn the applicant's evidence in this regard, nor can it be said to be a causal factor in the fall. 8. As was observed in Strinic v Singh:[2]

"...Having regard to his Honour's experience in a specialist court, it is useful to have regard to the principles governing judicial fact-finding, as they affect not only the extent to which the judicial officer can use such knowledge, but also the manner in which litigation is conducted in a particular court or tribunal. Those principles are discussed above. Their application to the present circumstances is the matter in point.

...Even if a particular judge sitting in a court of general jurisdiction is experienced in adjudicating medical cases, that experience does not replace the requirement to base findings on the evidence. A court cannot assume that its knowledge of any particular matter is correct, even if the individual judge has a great deal of experience dealing with, for example, medical issues, as was the case here. In Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884 it was said that such a process involved an error of law. Underlying that error is a fundamental breach of procedural fairness. A party is not afforded procedural fairness where a trial judge makes findings of fact based upon that judge's own purported knowledge or understanding of matters that do not form part of the evidence."

1. I accept the applicant's submissions in this regard. In my view it is a breach of procedural fairness to make findings of fact based upon matters that do not form part of the evidence, such as in respect of the applicant's balance, coordination, vision and reflexes at the time of the fall on 24 July 2021. Matters such as whether the Commission is a specialist tribunal similar in nature to that of the Compensation Court, in areas of knowledge of medical terminology and work processes, or "common experience" of the effects of alcohol consumption, are insufficient in these circumstances.
2. There were submissions in relation to a CT head and cervical spine report of Dr Percy dated 25 July 2021 (exam date 24 July 2021 at 11.30pm) under a heading of Clinical Data, where it was noted "intoxicated and head injury". There was no record of a source of information for that entry, nor of any observation or foundation for the entry, nor indeed whether this was an opinion. I am unable to place weight on this record in respect of a suggestion that the applicant was intoxicated at the time of the fall.
3. There were also submissions in relation to a clinical hospital entry on 25 July 2021, where there were said to be specific notes in respect of the cause of the fall, with nothing recorded as to a history of lower back nerve spasm resulting in loss of footing. However, these were notes taken which referred to "mechanical fall due to loss of balance holding plates", which in view did not preclude the applicant's statement evidence. Further, the context of these enquiries were injuries including fractured ribs, facture left occipital and left cerebellar contusion, which in my view supports context for this history taking and is not contrary to the applicant's statement evidence.
4. There was criticism of the applicant in her statements in which she said she recalled the incident of the fall on 24 July 2021, when contemporaneous records were said to indicate otherwise. The ambulance report recorded from her husband that she was stunned for about 30 seconds. It also recorded the applicant "initially" has nil memory recall of the event. In my view, neither of these matters were inconsistent with the applicant recalling the event of the fall on 24 July 2021.
5. There was in any event a record of that event taken on admission to the John Hunter Hospital on 24 July 2021. This in my view is not inconsistent with the ambulance record of initial loss of recall, and not inconsistent with the applicant recalling the fall on

24 July 2021. 6. There was a difference, noted by both parties, as to whether the applicant was moving into or out of her recreational vehicle when she fell. The applicant said she was moving into her vehicle when she fell. The ambulance notes, the initial triage notes and the emergency department registrar's note of the John Hunter Hospital all recorded that the applicant was moving out of her vehicle. However, a further registrar's note of early the next morning on

25 July 2021 recorded that the applicant was "stepping up into her RV". There was no suggestion by the respondent that the applicant was not stepping up into her vehicle. I accept the applicant in this regard. 7. This discrepancy is significant for two further matters. The first is that the ambulance officers and the doctors and nurses at the John Hunter Hospital on 24 July 2021 were busy and were likely to have mis recorded or misunderstood the history, particularly where they were concerned with the treatment of an indisputable fall and head and neck injury.[3] It follows that the relevant notes should not be construed with the minute attention one might give a formal legal document.[4] 8. Second, in light of these matters, caution should be adopted[5] in respect of apparent inconsistencies between the applicant's evidence and in records of the John Hunter Hospital and the ambulance notes for the relevant time, which did not record back pain or spasm in the history of the fall. 9. The applicant pointed to the context of the attendance by the ambulance officers and the admission to hospital, that is the context of an indisputable fall and head and neck injury, which was the focus for treatment, as being explanatory of an absence of history of missing a step due to back spasm or pain, and not indicating that that the back pain and spasm did not take place at all in relation to the fall. I accept the applicant's submissions in this regard. 10. There was an absence of notes by the ambulance officers and the John Hunter Hospital as to lumbar spine pain or symptoms on 24 and 25 July 2021. In my view, this is to be understood in terms of this context and the matters discussed above in respect of Davis. 11. In my view, this context is persuasive. I apply the caution as indicated in the decision of Mason v Demasi. In my view, the applicant's evidence as to the nerve spasm in her lower back causing her to lose her footing on 24 July 2021 should be accepted. 12. I am fortified in this conclusion by treatment records that were taken both before and after

24 July 2021. 13. On 11 March 2020, Mr Takbir, physiotherapist, noted on examination severe paraspinal muscle spasm restricting movement. 14. Dr Volschenk, specialist pain management physician, on 15 September 2020 noted significant neuropathic pain associated with discogenic back disease walking more than five minutes and with rotational movements, as well neuropathic and other pain medication, and referral for transforaminal injection. On 6 May 2021 he noted recurrence of pain after transforaminal injection, with further consideration for lumbar decompressive surgery. 15. Ms Briscoe-Hough, exercise physiologist, on 20 May 2021 noted attendance for disc herniation and sciatic pain following workplace injury with significant self-reported pain, walking tolerance ten minutes, and struggling to use stairs, with good days and bad days, and leaning/forward bending causing the most grief. 16. Dr Newing, treating GP, recorded on 10 May 2021 that at the end of a three-hour work shift "the back aches...radiates to buttocks and leg". On 7 June 2021 she noted back soreness, discomfort and restriction after work and social activities. 17. In my view, the above notes and records were consistent with and supportive of the applicant's account that she sustained nerve spasm in her lower back resulting in her losing her footing and falling on 24 July 2021, which is also in my view consistent with her missing a step. 18. The respondent submitted that there was no history of back spasms in the physiotherapy records in July 2021. I am not persuaded by that submission. On balance, the records referred to above in my view support the applicant's statements as to lower back nerve spasm on 24 July 2021. 19. Dr Newing also recorded on 11 August 2021 with a history of back injury, that the recent fall was partly due to twinges of pain in the back while on the caravan steps. Dr Newing thought the recent fall was partially due to the back injury. While it was the case that Dr Newing on

2 August 2021 and 3 August 2021, the first consultations post fall on 24 July 2021, did not record back pain in relation to the subject fall, this in my view was in the context of management of the head injury. In my view, the note of 11 August 2021 is consistent with the applicant's evidence of the fall on 24 July 2021, notwithstanding the discrepancy between ascending or descending the stairs, as discussed above. 20. The respondent's submissions also suggested that the carrying of cups and plates was likely to obscure the applicant's vision of the steps, leading to missing a step and then the fall. I do not accept this suggestion. This is in my view speculative. There was no comment as to this being a causative issue in the records noted above. There was no evidence to suggest this was the case. 21. Adopting a commonsense view of causation,[6] in my view the fall on 24 July 2021, causing injury to the applicant's head, resulted from the injury to the applicant's back on

28 November 2019. 22. In any event, if I am wrong as to the purported contribution of alcohol consumption to the fall on 24 July 2021, the question remains as to whether the injury of 28 November 2019 materially contributed to the incident on 24 July 2021. As was submitted by the applicant, the relevant conduct or circumstance need not be the sole circumstance or element, and "it is sufficient so long as it plays some part even if only a minor part" in its contribution,[7] and as was stated in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd:[8]

"...It is enough for liability that a wrongdoer's conduct be one cause. The relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss..."

1. I have accepted the applicant's evidence that she sustained lower back nerve spasm resulting in her losing her footing and falling on 24 July 2021. There was no evidence as to the extent that alcohol consumption contributed to the fall on 24 July 2021, and none that it solely caused that fall.
2. In my view, adopting the commonsense approach to the issue of causation,[9] even if there was some contribution by alcohol consumption, the injury to the applicant's back on

28 November 2019 materially contributed to the fall on 24 July 2021 and injury to the applicant's head and neck. 3. As there was no dispute that an anosmia condition was suffered as result of the fall on

24 July 2021, there will be a referral to a Medical Assessor in the terms outlined in the order above.

[1] [2009] NSWCA 227 at [2].

[2] [2009] NSWCA 15 at [63]- [64].

[3] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35] (Davis).

[4] Nominal Defendant v Clancy [2007] NSWCA 349, Santo JA at [54-55].

[5] Mason v Demasi [2009] NSWCA 227.

[6] Kooragang Cement Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).

[7] Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215; (1984) 56 ALR 31; (1984) 58 ALJR 560, Wilson J at 236.

[8] [2013] HCA 10 at [45].