Norton v Comcare

"1. Liability continues in respect of the work injury sustained on 1/11/76.

2. Compensation is payable under section 24 in respect of a 10% loss of efficient use of the right and left legs. The amount payable under section 24 is $7,798."

4 In a way which is not apparent from the Tribunal's reasons or the appeal book, the applicant pursued his claim for weekly compensation on the basis of a 30% impairment of the back. It is out of that that the present proceedings arise. 5 Senior counsel for the respondent identified the issues before the Tribunal as:

(1) Whether any symptoms the applicant was experiencing in his back were the result of the 1976 incident for which he had claimed compensation, or whether they were the result of a long-standing degenerative condition in his back; and

(2) Whether the applicant was suffering from an incapacity for work. In this regard, it was necessary to consider the circumstances of the applicant's acceptance of a voluntary redundancy from his position as regional fire officer for New South Wales.

6 The applicant did not contend that Comcare was prevented by any of its four earlier decisions in his favour from pursuing the first issue. The Tribunal found against him on both issues. 7 The first medical practitioners who saw the applicant after the injury of November 1976 were his general practitioner who diagnosed him on 12 November 1976 as having suffered muscle spasm, but who considered he was then virtually pain free, and the Commonwealth Medical Officer, Dr Stewart, who saw him in July 1977 in connection with his initial claim for compensation, and who reported that on that occasion there was then no evidence of any back disability. Neither of these doctors appears to have called for any x-ray examination. 8 The applicant has been examined by a number of specialists between 1981 and 1997, some on referral from his general practitioner, others at the request of his solicitors or Comcare's solicitors in connection with this litigation. All the specialists had access to x-ray reports and they all acknowledged that he had pathology in the form of extensive degeneration of the L4/5 disc that antedated his 1976 injury. The specialist who saw him on a number of occasions between 1981 and 1983 at the request of his general practitioner considered that this degeneration progressed significantly during this period, and ultimately recommended spinal fusion which the applicant, however, did not undergo. Four of these practitioners, Drs Seaton, Coffey, Tuffley and Hazelton, gave oral evidence before the Tribunal as well as providing their reports. 9 Drs Seaton and Coffey, who examined the applicant at the request of his solicitors, each gave reports and evidence supportive of his claim to significant permanent back impairment as a result of the 1976 injury. Both spoke of, among other things, the degenerative disc condition at the L4/5 level. Dr Tuffley also examined the applicant at the request of his solicitors. He was less supportive of the applicant's claim than Drs Seaton and Coffey, though he considered that the episode in November 1976 represented a significant aggravation of a pre-existing, age-related degenerative change within the L4/5 disc. 10 Dr Hazelton gave an unequivocal opinion in his reports that while Mr Norton first reported symptoms in late 1976, he clearly had advanced degenerative disease of the lumbar spine at that time, and that the only significance of the episode in November 1976 was that it "may have temporarily aggravated his symptoms". He said "his subsequent reporting of symptoms is clearly the natural progression of his severely degenerative lower lumbar spine". He did not resile from this in cross-examination. 11 In its reasons the Tribunal acknowledged the conflict in the medical testimony and identified the applicant's credibility as the issue that was critical both to its assessment of the applicant's evidence, and to resolving the conflict in the medical evidence. 12 In the second paragraph numbered 15 in its reasons, the Tribunal recorded its assessment of Mr Norton saying:

"He impressed us as an intelligent, highly motivated and ambitious officer. By 1990/1991 however he had become disenchanted by the direction that restructuring was taking the Fire Service, and his own career. He chose voluntary redundancy rather than compete for a position, or move to another location. In our view it was not until the Norfolk Island pizza business proved personally and financially less rewarding than anticipated, that the applicant sought to attribute any back symptoms to the 1976 work incident. We are firmly of the view that he attempted to mislead the Tribunal about the level of physical activity and fitness required of him as an Assistant General Manager; about his persistent lower back pain symptoms, and the effect of these symptoms upon his ability to continue his employment with Air Services Australia; and about his alleged inability now to undertake physical tasks and administrative employment."

13 The Tribunal referred to the two videos taken of the applicant by Comcare investigators and expressed surprise "that he was not cross-examined more specifically as to movements we observed", and said:

"Nonetheless the evidence on the film makes it quite clear that he was exaggerating his restrictions of movement. The applicant's testimony was inconsistent with what we saw on the film. This does not mean that we reject all of his evidence, but we look to other more acceptable testimony to corroborate the applicant's evidence and to support our findings of fact in important areas."

14 In its concluding comments made after reviewing the other evidence, the Tribunal returned to the videos and said:

"35. We are satisfied on the evidence, however, that the applicant is able to undertake physical activities inconsistent with his evidence of the symptoms he suffers. Video evidence can be equivocal and often unsatisfactory, but in this matter the evidence was stark and unequivocal. The applicant exhibited an enviable agility and apparently pain free range of movement, such as bending, twisting, reaching to wash the roof of the land cruiser. This evidence alone would indicate an ability to perform the less physically demanding administrative duties the applicant was performing at Air Services Australia. The video evidence, however, only confirmed our assessment that the applicant was prevaricating as he gave his evidence.

36. We are satisfied on the evidence that the applicant left his employment in November 1991, for reasons unconnected with any physical problems he was allegedly experiencing at the time. We accept the evidence of Drs Hazelton and Tuffley, and we are satisfied also, that the applicant does not suffer an incapacity to perform the work he was performing when he left Air Services Australia in November 1991. He is able to earn his normal weekly earnings of $854.39 per week. We are satisfied on the evidence that any incapacity the applicant may suffer is as a result of his degenerative condition, and not attributable to his employment with the Commonwealth, and that Comcare is not liable to pay compensation to the applicant."

15 For these reasons the Tribunal dismissed the applicant's application for review. 16 In his appeal, the applicant sought to challenge the Tribunal's decision, effectively on the grounds that it had made a number of wrong findings of fact. At the hearing it submitted that the Tribunal's decision was flawed with error of law constituted by Wednesbury unreasonableness. It was on that basis that the proceeding before me was largely fought. 17 It is trite law that the task of fact finding is committed to the Tribunal, not to this Court: this Court can intervene only if the Tribunal's decision is infected with error of law. As Brennan J said in Waterford v Commonwealth (1987) 163 CLR 54 at 77:

"The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact."

18 But a decision involving only factual evaluations may still be flawed for reviewable error of law. In Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, it was said at 12 that, though a decision be on matters of fact, the decision will be flawed for error of law and thus reviewable if the decision-maker, in determining the facts, has failed to have regard to relevant considerations or has had regard to irrelevant considerations or if the decision may have been so unreasonable that no reasonable decision-maker could have come to it. 19 The scope and even the availability of Wednesbury unreasonableness as a ground of review of administrative action at common law are the subject of dicta, but no ratio binding on this Court, in Abebe v Commonwealth (1999) 162 ALR 1 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 322 - 323, 327 and 331 - 332 stands as authority that unreasonableness is a ground upon which an administrative decision can be reviewed by the Court, as is Sharp. Gibbs J, in Pestell at 327, treated it as a residual ground, only available where no other invalidating error of law can be identified in the administrative decision, but as a ground independent of the more common errors of law such as taking into account irrelevant considerations and breach of natural justice. 20 In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290, Mason CJ and Deane J considered that the Wednesbury formulation of unreasonableness contained in s 5(2)(g) the Administrative Decisions (Judicial Review) Act 1977 (Cth) extended to the case of a decision-maker who "makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course". This suggests that when a question of Wednesbury unreasonableness arises, it is not just the ultimate decision that can be examined for that particular flaw: attention can properly be focused also on the reasons given by the decision-maker for arriving at its decision. And if those reasons can be said to show that the decision has been reached in a manner devoid of plausible justification, it will be reviewable for Wednesbury unreasonableness, even though the material available to the decision-maker was such that the ultimate decision could have been justified on a basis different from that adopted by the decision-maker. 21 In order to deal with the claim of Wednesbury unreasonableness, it is first necessary to consider, in a little more detail, how the Tribunal reached its decision. The authorities also emphasise the need, in doing that, to avoid over-zealous scrutiny of the Tribunal's reasons in a search for error. 22 After setting out its views about the applicant's credibility in par 15, the Tribunal turned to see whether there was more acceptable testimony to corroborate the applicant's evidence, but found there was none. 23 One of the witnesses called by the applicant was a former fellow worker, Mr Rispoli. Mr Rispoli knew Mr Norton for over 30 years, but apparently only worked with him for the last seven. Of his evidence the Tribunal said, at par 17:

"Mr Rispoli worked with the applicant in Sydney, in 1992, and is himself suffering from a back condition. He gave evidence that he recalled the applicant as being a highly motivated, very capable, very fit officer, and that they would walk 3-5 kms at lunch time. Mr Rispoli remembers a few occasions when the applicant arrived at work in pain; and he recalls also that he was told that the applicant had a back problem as a result of lifting a drum of foam compound. We accept that Mr Rispoli gave his evidence to the best of his recollection."

24 In dealing with Mr Rispoli in par 17 of its reasons, the Tribunal did not expressly say it regarded him as honest, but not sufficiently reliable on the issue of back complaints made by Mr Norton at work, up to when he ceased to work with Mr Rispoli in November 1991. I can see nothing in Mr Rispoli's evidence that would justify reading the Tribunal's reasons at par 17 in that way. 25 The Tribunal gave its evaluation of Mr Rispoli's evidence in par 17 in the context of examining the material before it to see if there was support for, among other aspects of the applicant's evidence, his testimony that he had lower back pain which continued to cause him difficulties up to the time he finished work with Air Services Australia in November 1991 and thereafter. Though it found Mr Rispoli to be an honest witness, it plainly did not find in his testimony any significant corroboration for the applicant's claim to experiencing enduring problems with his back. 26 For the Tribunal to say that "Mr Rispoli remembers a few occasions when the applicant arrived at work in pain" misstates, to a quite significant extent, Mr Rispoli's evidence. The specific passage of evidence the Tribunal appears to have been referring to here was quite different. What Mr Rispoli said was:

"Did you notice, yourself, anything about what he did which would indicate he had any problem with his back?---Yes.

What did you see?---Well, I saw him on quite a few occasions arriving to work, you know, with obvious pain …"

27 He gave a good deal of other evidence on this aspect of the applicant's case. For example, he also said:

"I say when the pain get (sic) too much, I suppose, what do you do? You tend to demonstrate it, tend to show it, physically, and indeed, he'd try to straighten up and when he straightened up he was able to walk about, and indeed at times you wouldn't think he had any problem there, but the problems sort of reappeared; but it was something actually that was on and off and something he carried throughout the nine years that I knew him, I worked with him.

Which nine years were those nine years? … From '94 - sorry, '84 to '91 - sorry, seven years …"

28 The difference between what Mr Rispoli in fact said and how the Tribunal understood his evidence is not a trivial one. The Tribunal found that the applicant had attempted to mislead it about "his persistent lower back pain symptoms". Mr Rispoli gave unequivocal evidence that throughout the seven years he knew Mr Norton from 1984 to 1991, Mr Norton from time to time complained of back trouble at work and, on occasions, showed signs of having difficulties with his back, although he always insisted on carrying on with his duties. He spoke of much more frequent observations over a seven year period of Mr Norton in pain at work than having seen that "on a few occasions". The Tribunal accepted that he gave "his evidence to the best of his recollection". There is nothing in the transcript of his evidence that I can see which could justify a conclusion that he only saw such signs on a few occasions. Mr Rispoli thus provided significant corroboration for the applicant's case that he had enduring problems with his back through the latter half of the 1980s, into 1991 and beyond. By misstating his evidence, the Tribunal showed that it failed to appreciate this. 29 A witness Mr Norton called to give evidence concerning the circumstances of his departure from Air Services Australia was Mr James Waters (not "Walters" as the AAT misnamed him). Mr Waters' evidence with respect to Mr Norton's back condition was limited to the following:

"Now, from what you knew of Mr Norton, what can you say about his attitude to this sort of thing?---Well, Jim was highly regarded from an operational point of view. Within the structure we met on a regular basis, and I suppose it was when we became District Managers that we met every six weeks in Canberra, and I suppose that was when I got to know Jim as I know him today, through those meetings. ---

You saw Mr Norton every six weeks or so?---Yes, that's right.

Did you have any knowledge of him having a bad back?---No."

30 The Tribunal said of this witness, in par 16 of its reasons:

"Mr Walters said also, that he had known the applicant since 1968 and that he saw him frequently over the years. In the latter years, they had formal meetings every six weeks. Mr Walters had no idea, however, that the applicant had back problems. He had made no complaints to Mr Walters, nor ever exhibited any limitations of movement."

31 The comments in the last sentence record inferences drawn by the Tribunal from Mr Waters' brief evidence of not knowing that Mr Norton had a bad back. Of course, it is indisputable that Mr Norton did injure his back in 1976 at work and was accepted by Comcare as suffering problems that resulted from it then and again in 1977, 1981 and 1993. It was also common ground among all the medical witnesses that from prior to 1976 he had significant pathology at the L4/5 disc consistent with pain in the lower back: the contest among the medical reports was whether the 1976 injury had anything to do with his enduring back problems. 32 The Tribunal, in par 19, referred to Messrs Pitcher and Butcher, two of the applicant's former work colleagues whom Comcare called. It said, "We accept them as witnesses of truth." 33 Of Mr Butcher, the Tribunal said at par 20:

"… he had known the applicant since 1968, that the applicant always kept in trim. He said that if he had not been told more recently of the back injury the applicant suffered in Melbourne, he would never have known that the applicant had suffered an injury. He said that over the years, he had never seen any sign of the applicant having a back problem."

34 Mr Butcher's evidence was that he himself had been in the fire fighting services since 1968, but that he had only known Mr Norton for "at least 15 of those years". In 1991, they were in equivalent positions as Assistant General Managers; Mr Butcher for South Australia and Northern Territory. During this time they met "probably four times a year, approximately" in Canberra, where regular Civil Aviation Authority management meetings were held. He also gave this evidence:

"Did you know that Mr Norton had had a back injury back in 1976?---I wouldn't have known when it was. I certainly was aware that there was some injury to Jim's back, and I believe it occurred when he was at the training school in Melbourne before he came to the SA/NT region in Darwin.

Right. When you were seeing him during these meetings - I should ask you how long you were in the equivalent position for. Over what kind of period were you having these meetings?---Oh, hell. I'd say it was - I would say it was at least two years.

Right. When you used to see him on these occasions, did you see any signs of a back problem?---No."

35 Although Mr Butcher's evidence was that in the last two years of their acquaintanceship on the intermittent occasions they met at meetings in Canberra, he did not see any signs of Mr Norton having a back problem, the Tribunal misstated his evidence in a number of respects, all adverse to Mr Norton. Mr Butcher did not give evidence "that he had known the applicant since 1968, that the applicant always kept in trim". Mr Butcher did not say that "if he had not been told more recently of the back injury the applicant suffered in Melbourne, he would never have known that the applicant had suffered an injury". Nor did he say that "over the years" he had never seen any sign of the applicant having a back problem: he only said that was the position in the last two years during which they met intermittently in Canberra. Counsel for Comcare did not attempt to defend how the Tribunal dealt with Mr Butcher's evidence, acknowledging that it plainly misunderstood it. 36 The Tribunal, at par 19, said of Mr Pitcher that he "has known the applicant since 1968/69", that he said that Mr Norton was always extremely fit and "in his frequent dealings with the applicant never saw any effects of a bad back, nor any sign of the applicant having back problems". As the Tribunal observed, Mr Pitcher said the job of Assistant General Manager was not physically demanding. Mr Pitcher's evidence was that he first met Mr Norton in 1968 or 1969, when Mr Norton was a supervisor and he was a fire fighter at Sydney. He said he came across him again over the years, that they ended up both as Assistant General Managers, he for the Victorian/Tasmanian region and Mr Norton for the New South Wales region. He remembered hearing that Mr Norton had hurt his back at a training school, and that during the period they were both Assistant General Managers (the position from which they both retired), they met at about three monthly intervals in Canberra. There is no suggestion that the Tribunal misstated his evidence in any material respect. 37 The Tribunal dealt with Mrs Norton's evidence in this way in par 18:

"She did her best to assist the applicant, but her evidence was clearly partisan. We accept her evidence that the applicant can drive the tractor for 1˝ to 2 hours each day, ride the ride-on mower for 1 hour per day although he would complain of being stiff and sore, and that he can walk for 2 kms, before stopping to rest. She gave evidence also that whilst she and the applicant were on Norfolk Island, the applicant painted the ceiling of their home, using an extended roller, and that she helped with the painting."

38 Mrs Norton gave evidence that her husband had become quite badly handicapped by his back by the time they were living on Norfolk Island in the early 1990s. The Tribunal considered her partisan. It only accepted so much of her evidence as told against her husband's case. It was entitled to do this. It was for the Tribunal to evaluate the reliability of her evidence. But again, the Tribunal appears to overstate evidence adverse to the applicant when it treats Mrs Norton as having said "that the applicant can drive the tractor for 1˝ to 2 hours each day, ride the ride-on mower for 1 hour per day although he would complain of being stiff and sore, and that he can walk for 2 kms, before stopping to rest". Her evidence was:

"I see. Now, he does some mowing still? Some work with the fields?---With the tractor he does, but not with the lawnmower or anything like that. I do all of that.

And is there a ride-on mower?---There is a ride-on mower, yes.

Okay. Can you tell us about his activities with that?---Well, yes, he - that's limited the ride-on mower, that sort of just goes around the perimeter of the garden so - because you can't get in close to the edge of the gardens with the - the tractor with the slasher, so the ride-on mower is just - just a small area that he does around there.

Okay. Well, how long does it take him to do that work that he does with the ride-on mower?---The ride-on mower?

Do you know of any difficulty that he has with that?---Well, he - he's very stiff and sore when he gets off the mower, yes. He actually walks quite stiff after those sort of activities.

What about the tractor, does that cause any problems to him?---Just mainly sitting there or any length of time. He still gets off the tractor with much difficulty and he's very stooped over because his - you know, his back is pretty stiff.

How long - what is the maximum length of time he is sitting on the tractor?---On the tractor?

Yes?--Would be about 2 hours at a time - 1˝ to 2 hours. You know, he usually comes in or a break for morning or afternoon tea, or lunch, whatever the time span might be.

How - what is the maximum of the time over a day in these sort of activities - over a whole day?---Over a whole day?

I see. Does he do any walking or swimming?---Swimming, no. That apparently aggravates his back. Walking: we have tried to do a little bit of walking. Recently we went for a walk to - well, it was Easter time, we discovered a Wetlands area around where we live and we though (sic), "Well, we'll go or (sic) a walk." But it was about 2 kilometres, I think, walk - but there is (sic) strategically placed seats around the walk and we had (sic) stop several times to rest."

39 As counsel for Comcare submitted, it may well be right, in order to avoid the trap of subjecting the Tribunal's reasons to over-zealous scrutiny, to accept that what the Tribunal meant when they purported to recite Mrs Norton's evidence about her husband's activities on the tractor and rider mower was that that was the time he would spend on those machines, on the occasions he used them, not that he spent time on those machines each and every day. But the same restraint in criticising the Tribunal is not justified when dealing with the way the Tribunal misstated Mrs Norton's evidence about his walking capacity. The Tribunal said it accepted her evidence that Mr Norton "can walk for 2 kms, before stopping to rest". Mrs Norton's evidence was not that he had any such capacity. What she said was that she and her husband had tried, when on Norfolk Island, to do "a little bit of walking" and that on one occasion during a two kilometre walk he had to stop several times to rest. The Tribunal misstated, to the applicant's detriment, Mrs Norton's evidence as to his general capacity to walk distances. 40 Mr Norton called an occupational therapist, Mrs Stephenson, who had provided a very detailed report, supportive of his case, in which she concluded that he had significant "occupational limitations due to constant back pain, and intermittent sciatic pain" including limited tolerance for bending and limited tolerance for standing. She considered that he was likely to be physically capable of sedentary to light employment but there were many barriers to him finding such an occupation, including his age and the fact that a prospective employer might well be concerned at the fact that he had a long-standing back injury. The Tribunal dealt with her evidence in par 18 saying:

"The applicant called Mrs Stephenson, occupational therapist, who was present in the Hearing Room for some time during the showing of the film. Despite the movements the applicant demonstrated on film, she remained steadfastly of the opinion, as stated in her report of 4 June 1998 … that the applicant could bend only to touch below his knees and could not return to his previous employment. We found Mrs Stephenson's evidence and report of little assistance. She failed to address the applicant's movements which were demonstrated on the film."

41 Mrs Stephenson only saw the videos when they were displayed during the hearing. She was cross-examined only briefly on it as follows:

"Did you see the part of the video where he was actually lying under the vehicle and going up?---Yes.

It doesn't seem awfully consistent with somebody who would have trouble getting off the toilet?---He's not saying he's having trouble getting off the toilet, but he's saying that he's reporting restrictions; I'd say it's more stiffness that he's having there. I didn't see anything inconsistent with that because when I saw him getting up and down off chairs when I was saying, you know, squat down, kneel, when he came - when he left the interview he was definitely stiff in his spine. He was stooped forward and just a little bit slower than you would expect to get up from a chair, so that wasn't an inconsistent thing that I would think - - -

Yes. I'm more interested in the movement in the video compared with - - -?---Oh, the rolling.

• • the difficulty getting on and off the toilet, for example?---He seemed to move reasonably freely in the video, but you know, in terms of speed and agility, although he did - his range was not - his range was what I saw in the office, like, he didn't actually go more than 45 degrees forward flexion. He was - he was probably slightly a little bit more rotating than he was in the office, but apart from that it wasn't inconsistent, I didn't think. yes."

42 This was the only opportunity Mrs Stephenson was given to address the applicant's movements which were demonstrated on the film. The Tribunal found the videos particularly compelling evidence in contrast to the impact they had on the occupational therapist and indeed on senior counsel who appeared for Comcare at the hearing before the Tribunal and in this Court: counsel's cross-examination of the applicant on the videos elicited the comment from the Tribunal as to its surprising brevity set out above. But it can be questioned whether the way the therapist responded to cross-examination on the videos as recorded in the transcript justifies dismissing the whole of her evidence because of what the Tribunal described as her failure to address the applicant's movements demonstrated on the film. 43 The Tribunal then considered the conflicting medical evidence, expressly accepted the evidence of Drs Hazelton and Tuffley, and said it preferred their evidence and opinions wherever they conflicted with the evidence and opinions of the other medical witnesses. 44 Dr Tuffley examined Mr Norton at the request of the latter's solicitors in August 1996 and again in January 1997. He considered that the work incident of November 1976 represented "a significant aggravation of pre-existing age related degenerative change within the L4/5 disc" and that further episodes of pain which occurred (in 1977 and 1978 and 1981) while he was working at the Darwin airport represent further, more minor, aggravation of his pre-existing degenerative disc disease. He reported that there "did appear to be an element of symptom promotion" and that while Mr Norton "expresses a considerable disability, perhaps in the order of 30%", only 15%, in Dr Tuffley's opinion, related to physical impairment, the balance relating to "the subjective factors mentioned above". Dr Tuffley considered that his condition had stabilised by 1996 with no further deterioration likely because of the spontaneous fusion that had occurred between the relevant vertebrae. He also said that he thought Mr Norton would have been able to continue working as Assistant General Manager with Air Services Australia, though he would have had to receive ongoing treatment for his back and may, on several occasions in the course of a year, have had to take up to a week or two off work for episodes of acute lumbar back spasm. 45 Once again the Tribunal, in a significant respect, misstated the evidence. After summarising Dr Tuffley's report in par 32, it turned to his oral evidence. Of this the Tribunal said:

"33. Dr Tuffley gave evidence also that the report of Dr Stewart of 11 July 1977 … which stated that on examination of the applicant, there was no evidence of any back disability at that time, was in contrast with the degree of injury described to him by the applicant. Dr Tuffley considered it more likely in these circumstances, that the injury of 1 November 1976 was a muscle strain."

46 What Dr Tuffley said when Dr Stewart's report was drawn to his attention in the witness box was quite different:

"… In relation to whether it was temporary, 'when would they have ceased', he says, 'Two weeks', and then he says a muscle strain. My first question is were you aware of any of this?---No, not until you shows (sic) this to me briefly outside today.

This is - - -?--- It's in conflict with the degree of injury which Mr Norton described to me. He described to me a more significant injury which was more disabling, whereas this report seems to suggest that it was a muscle strain, according to the doctor, which would settle within two weeks, so I may have questioned him more closely over that point if I'd had this conflicting evidence."

47 When Dr Tuffley's attention was drawn to a record of a note made by Mr Norton's general practitioner on 12 November 1976, ie, about a week and a half after the back injury: "Much better virtually no pain", and was asked whether that would make a difference, Dr Tuffley replied:

"Yes, well, it's the same reply basically, that that's in conflict with what he told me with regard to the severity of the injury, and again I'd have to question him more closely about how severe his injury was to try and determine which was more correct, his description of it being more significant or these doctors' descriptions stating that it was muscle strain and not particularly severe."

48 But that is as far as Dr Tuffley went. He did not resile from the opinion he expressed in his written report set out above. In particular, he did not change his evidence, as the Tribunal wrongly found, to saying that he "considered it more likely in these circumstances, that the injury on 1 November 1976 was a muscle strain". Once again, the Tribunal misapprehended the evidence in a way adverse to Mr Norton. 49 This is a particularly important mistake by the Tribunal. I have already referred to what the Tribunal said of Dr Hazelton's evidence, viz, "that the applicant's back complaint is due wholly to his intrinsic degenerative spine disease, and unrelated to the 1976 incident". There was a clear conflict between Dr Hazelton and Dr Tuffley, the one being of the view that the back injury in November 1976 was a temporary episode only and that Mr Norton's subsequent back problems were all due to the natural progression of his pre-existing degenerative disease, while the other, Dr Tuffley, remained of the view that the injury in 1976 had significantly aggravated his pre-existing condition and was responsible for 10% of the 15% physical impairment of the back which he considered the applicant had when he saw him in 1996 and 1997. The Tribunal, by misstating in its reasons Dr Tuffley's response to what the Commonwealth Medical Officer had to say in 1977 and what Mr Norton's general practitioner had to say in mid November 1976, mistakenly thought it could accept both Dr Hazelton and Dr Tuffley's evidence and could prefer their evidence where it conflicted with the other medical evidence more supportive of Mr Norton's case. In fact, there was an irreconcilable conflict between the evidence of Dr Tuffley and Dr Hazelton which the Tribunal failed to identify because it misunderstood Dr Tuffley's evidence. 50 There is ample material before the Tribunal to justify it in reaching the conclusion it did on both issues identified by counsel for its determination and referred to above. But there was also a body of other evidence sufficient to show that that is not the only conclusion that was open to the Tribunal on the issue of whether the applicant continued in the 1990s to suffer from the effects of his back injury in 1976. 51 In my opinion, more than simple errors of fact were made by the Tribunal. Though this case is, I think, near the borderline of unreasonableness, the Tribunal has made so many errors of fact, each significant, though to differing degrees, in reasoning to its decision that it can be said to have made that decision "in a manner so devoid of plausible justification" that it is flawed for Wednesbury unreasonableness. If it had not misstated the evidence of Messrs Rispoli and Butcher and Mrs Norton, and especially Dr Tuffley, it could not have come to the conclusion it did by the path it followed. 52 For these reasons, the decision under appeal will be set aside and the matter remitted to the Tribunal, differently constituted, for redetermination, with liberty to receive further evidence. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Solicitor for the Respondent: Blake Dawson Waldron

• [11] Ultimately, the Vice President concluded that on the evidence before him, his Honour was not satisfied, on the balance of probabilities, that the injuries claimed by Mr Rooke (to his neck and shoulders) arose out of, or in the course, of his employment.[15]

1. The learned Vice President erred in law in finding the appellant had failed to prove to the requisite standard that he had suffered an injury to his neck and/or shoulders as such finding was not open on the evidence because: 1. the evidence of the appellant was: 1. that he fell from a ladder onto his back while wearing a breathing apparatus fixed to his back and a heavy helmet upon his head; 2. immediately thereafter suffered pain in his neck and shoulders; and 3. after the event causing injury the appellant complained of suffering neck pain to his work colleagues;

1. it was not put to the appellant that the event did not occur in the way he described it in his evidence; 2. it would be reasonable to infer and ought to have been inferred that such a fall was likely to have caused a neck and/or shoulder injury; 3. it was not put to the appellant in cross examination that he did not suffer symptoms of pain in his neck and shoulder region after his fall from the ladder; 4. the appellant gave evidence that he continued to suffer symptoms of neck pain after the accident and it was not put to the appellant in cross examination that this was not the case; 5. exhibit 2 is the incident investigation report prepared for the appellant's employer in respect of the incident on 14 September 2017 and includes descriptions of the injuries suffered by the appellant in the event causing injury as follows:- "body location of injury - trunk - multiple locations"; 6. the appellant's wife Ms Rooke gave evidence that she observed the appellant after the event causing injury: 1. to have complained of pain in his neck;

1. that "he could not put his arms behind his head to dry himself" such that she needed to assist him;

1. a co-worker Mr Lobb gave evidence that he had been working with the appellant at the time of the event causing injury and that on the next occasion they worked together the appellant had complained to him that he was having troubles with his neck and it was not suggested to Mr Lobb in cross examination that the relevant complaint had not been made to him;
2. a co-worker Mr Gambin gave evidence that was not challenged by any cross examination that immediately after the event causing injury the appellant told him that his neck was sore and that the appellant had another conversation with the appellant [sic] the following day where he said his neck was much more sore that [sic] it was on the day of the event causing injury; and
3. while Dr Korinihona, who was the first doctor who saw the appellant after the event causing the injuries gave evidence that could have supported a finding of fact that the appellant did not complain to him that he had any neck problems on that occasion the fact that such complaint was not made or recorded by the doctor was by itself not used by the respondent as a basis to challenge the credit of the appellant and the other witnesses who had corroborated his evidence and nor was any finding of a lack of credit or reliability on the part of the appellant or any other of the appellant's witnesses made by the learned Vice President.

1. The learned Vice President erred in law in determining the case on the basis that an injured worker's evidence that the worker had suffered an injury was by itself insufficient to prove an injury for the purposes of the Workers' Compensation and Rehabilitation Act 2003 (WCRA).
2. The learned Vice President erred in law in failing to have regard to the provisions of s 132A(7) of the WCRA that expressly provide [sic] that a decision-maker should only refuse to find a worker has suffered an injury for the purposes of the WCRA if the decision-maker is satisfied the worker has not suffered an injury as opposed to placing an onus on the injured worker to prove to the civil standard that that [sic] the worker had suffered the relevant injury.
3. The learned Vice President erred in law in failing to provide adequate reasons for his decision.
4. Further or in the alternative; the learned Vice President erred in law and in fact in not finding the appellant had suffered a neck and/or shoulder injury.

1. In the further alternative, the appellant applies for leave to appeal the decision on grounds other than an error of law or want of jurisdiction on the basis that the learned Vice President erred in fact not finding the appellant had suffered a neck and/or shoulder injury in the relevant incident and it is in the public interest the appellant receive a grant of leave to appeal.
2. The appellant relies on the passing of 1 year 4 months and 30 days between the completion of the hearing 23 November 2022 and the publication of the judgement on 22 April 2024 and as has been set out above the inadequacy of the reasons in support of the appeal generally and in particular in support of his application for a grant of leave to appeal, should such grant be required.

• [13] In his oral submissions to this Court, Mr Rooke:

• expressly dealt with the third ground of appeal; and

• relied on his written submissions for the remaining grounds of appeal.

• [14] I will deal with the challenges to the Primary Decision by first considering Mr Rooke's written and oral submissions about the third ground of appeal and then by considering Mr Rooke's written submissions as to the remaining grounds of appeal.

• [15] This ground contends that the Vice President erred in law. Mr Rooke's specific contentions are that:

• the Vice President failed to have regard to s 132A(7) of the Act; and

• that provision expressly provides that a decision-maker should only refuse to find a worker has suffered an injury for the purposes of the Act if the decision-maker is satisfied the worker has not suffered an injury, as opposed to placing an onus on the injured worker to prove, to the civil standard of proof, that the worker has suffered the relevant injury.

• [16] Mr Rooke did raise the issue agitated in this ground of appeal before the Vice President. In his written submissions to the Vice President, Mr Rooke submitted:
  1. The respondent in its notice of facts and contentions maintains the appellant bears an onus to prove that he sustained the injuries in contention. The appellant accepts that if he proves he sustained the injuries in contention to the civil standard then the appeal should succeed and positively submits the evidence does show to the relevant standard he did suffer the injuries.

1. For the sake of completeness the appellant points out that the test imposed by the legislation is that the language of the statute is that the appeal should only be refused if the commission is satisfied that the appellant has not suffered an injury. It follows that the appeal may be allowed if the evidence is such that it is equally likely the appellant did or did not suffer a particular injury because in those circumstances that cannot be a positive finding an injury was not suffered.

• [17] However, at the conclusion of his written submissions to the Vice President, after summarising the evidence from the witnesses, Mr Rooke submitted:

1. In the premises the appellant has shown to the civil standard that he suffered injuries to his neck and back in the incident.

• [18] As referred to earlier, the Vice President, in confirming the review decision, found that on the evidence before him, his Honour was not satisfied that, on the balance of probabilities, Mr Rooke's claimed injuries (to his neck and shoulders) arose out of or in the course of his employment.[16] In doing so, his Honour impliedly rejected the alternative argument about the test to be applied as set out in paragraph 8 of Mr Rooke's written trial submissions (as reproduced above).

• [19] In his written submissions, Mr Rooke submitted that:
  • s 132A of the Act provides a mechanism to allow a person to apply for an assessment of a particular injury for which no application for compensation has been made in accordance with s 132 of the Act, and s 237(1) of the Act provides that no common law claim can be made without a notice of assessment;[17]
  • s 132A(7)(b) of the Act relevantly provides that an insurer may only reject an application for an assessment of any permanent impairment suffered as a result of an injury '...only if satisfied the worker ... has not sustained an injury';[18]

• in the context of administrative decisions, the use of the word 'satisfied' by itself does not provide information about the standard of proof to be applied or the like, and a state of satisfaction can be set aside if formed capriciously, arbitrarily or upon irrelevant considerations;[19]

• the standard of proof was not included in the legislation, by, for example, the use of the phrase 'beyond reasonable doubt';[20]

• if a standard of proof is to be looked at, regard should be had to the fact that, in a civil context, the degree of probability needed to prove the fact or circumstance may depend upon the subject matter;[21] and

• s 132A(7) of the Act does not state that the satisfaction must be arrived at only on 'reasonable grounds.'[22]

• [20] Mr Rooke then submitted:[23]
  1. A decision in favour of the worker on a section 132A application creates no issue estoppel or the like in favour of the worker. Any subsequent claim for common law damages has to be proven to the civil standard in a common law court.

1. A negative finding will bar a worker from taking any claim at common law. Therefore an analogy should be drawn between a refusing of a section 132A application and allowing summary judgement for the defendant in a common-law proceeding. That is if the Regulator is satisfied there is a serious question be tried about an injury being suffered, it ought not be satisfied the injury had not been suffered.
2. Alternatively, if the submission made in the previous paragraph is not accepted or not accepted completely a flexible standard of proof should be applied. If this test is applied the only way it could be shown injury had not been suffered would be to show that the worker was acting fraudulently in claiming the injury was suffered, then the evidence to show fraud accordingly would need to be persuasive of the existence of fraud.
3. The Industrial Relations Act at chapter 9 section 348 provides an appeal to the QIRC is an appeal by way of a rehearing on the record but by subsection (2) the QIRC may hear evidence afresh or hear additional evidence if it is considered appropriate to effectively dispose of the appeal. In this appeal before the QIRC the usual approach was undertaken and oral evidence was adduced.
4. In Minister for Immigration and Multicultural Affairs v Eshetu Gummow J analysed the principles relevant to reviews of decisions that required the decision-maker to be "satisfied". At [143] it was noted the High Court had warned "against drawing too closely upon analogies in the conduct of determination of civil litigation" in the field of judicial review of the type of decisions under consideration in that case. It is submitted that warning may not apply here because the proceeding before the QIRC was not an inquisitive or administrative procedure but rather the appeal was conducted in the way civil litigation is conducted.
5. It is submitted the QIRC when determining the appeal should either have applied the serious question to be tried test or the flexible approach to the civil standard referred to above. That is, it should not have conducted the hearing and made the decision as though it was hearing a civil trial that was to be determined on the balance of probabilities.

• referred to the objects of the Act contained in ch 1, pt 2 and, in particular, referred to:

• - s 5(2)(d) which provides that the Act establishes a workers' compensation scheme and that, in respect of injuries sustained by workers in their employment, a main provision of the scheme provides for '...employers' obligation to be covered against liability for compensation and damages', which was said to illustrate '... a common law objective';[24] and

• - s 5(4)(a) and (c), which provide that it is intended the scheme should:

• maintain a balance between providing fair and appropriate benefits for injured workers and their dependants; and

• provide for the protection of employers' interests in relation to claims for damages for work injuries,

which was said to mean there is a '... balance'[25];

• submitted that before the regulation of access to common law damages for a worker injured in their employment, there was a common law right to take action for damages;[26] and

• - unless a worker can obtain an assessment of permanent impairment, no common law claim may be taken;[27]

• - a permanent impairment assessment does not create an issue estoppel that the worker suffered an injury at work, and an employer can raise, as a defence in a trial for damages, that the worker did not suffer an injury at work;[28] and

• - the converse to the above is that a worker can take a common law claim and be found to have suffered an injury at work, but cannot be awarded damages because they did not obtain a permanent impairment assessment.[29]

• because s 132A(7)(b) of the Act refers to the power of the insurer to reject an application '...only if satisfied the worker ... has not sustained an injury', then if the evidence was either way as to the question of whether a worker sustained an injury, that question should be ultimately resolved through the common law process (by a court of competent jurisdiction);[30] and

• having regard to that scheme of the Act and to an interpretation of the Act that best achieves its purpose, if, on the way through to the ultimate determination by a court of competent jurisdiction, the issue of injury is to be determined by way of an appeal to the Commission under ch 13, pt 3, div 1 of the Act, then the standard of proof to be applied by the Commission (in determining if there is an injury) is not on the balance of probabilities, but a lesser standard of proof, such as whether there is a serious question to be tried.[31]

• [23] Mr Rooke submitted that the error of law made by the Vice President was that his Honour proceeded on the basis that Mr Rooke's permanent impairment application should be refused because his injury (the injuries to his neck and shoulders) was not proved to the civil standard; [32] that is, the Vice President applied the wrong standard of proof because his Honour did not give consideration to the phrase '... only if satisfied' as provided for in s 132A(7) of the Act.[33]

• [24] In his oral submissions in reply, Mr Rooke submitted, on the scheme of the Act pressed by him and on his construction of s 132A(7)(b) of the Act, that:

• if it was likely that the injury could have been suffered, then he should have succeeded before the Commission; and

• the question of whether an injury was suffered would ultimately be answered to the civil standard of proof before a common law court.[34]

• [25] The Regulator submitted that:
  • in an appeal under ch 13, pt 3, div 1 of the Act, an appellant bears the onus of proof in proving their case which necessarily involves proving, on the balance of probabilities, that the review decision was not correct; [35] and
  • s 132(A)(7) of the Act:
    • - does not change the onus of proof in an appeal under ch 13, pt 3, div 1 of the Act; and

• - does not impose an onus on an insurer or the Regulator to disprove allegations of injury without any medical evidence, which is supported by s 132A(3)(c)(i) and (ii) of the Act, which require the application to be supported by a medical certificate, or evidence or particulars prescribed under a regulation, such that there is a requirement for an applicant to provide material as to whether they sustained an injury before that issue is determined.[36]

• [26] In oral submissions, the Regulator submitted the Vice President had to be positively influenced on the evidence that Mr Rooke sustained an injury within the meaning of the Act.[37]

• [27] In my view, the resolution of this ground of appeal requires the construction of s 132A(7)(b) of the Act.

• [28] The construction of s 132A(7)(b) of the Act:

[M]ust "begin with a consideration of the text itself", that is, the text of the statute as a whole. That said, ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy.[38]

• [29] The construction of s 132A(7)(b) of the Act does not support Mr Rooke's contentions.

• [30] Mr Rooke submitted that if the Vice President had considered it was likely the injury (to his neck and shoulders) was work-related, then he (Mr Rooke) should have succeeded, with the question of whether the injury was work-related to be finally determined by a court of competent jurisdiction as part of his subsequent claim for damages.[39]

• [31] It is convenient to set out s 132A(7) of the Act again. It provides:

(7) The insurer may reject the application only if satisfied the worker-

(a) was not a worker when the injury was sustained; or

(c) is, or may be, entitled to compensation under chapter 4A because-

(i) the worker has sustained a serious personal injury that meets the chapter 4A eligibility criteria; and

• [32] Two things are immediately apparent from the text of s 132A(7)(b) of the Act.

• [33] One, reading the provision as a whole, the first use of the word 'may' in s 132A(7) is to confer power to reject a relevant application and not to give discretion.[40] On the words used, if the insurer is not satisfied the worker sustained an injury, then it has power conferred on it to reject the application.

• [34] Two, in the absence of any other words, the requirement in s 132A(7)(b) of the Act, that the insurer has to be '...satisfied' the worker has not sustained an injury, is treated as requiring satisfaction formed reasonably upon the material before the decision maker.[41] No other meaning is open on the words that are used in the section. Further, as Dixon J stated in Briginshaw v Briginshaw:[42]

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.

• [35] I acknowledge Mr Rooke's submissions that s 132A(7)(b) of the Act does not refer to the standard of proof to be applied as being on the balance of probabilities, and that the section does not provide that the insurer's power to reject an application is exercised only if the insurer is satisfied '...on reasonable grounds' that the worker has not sustained an injury. However, Mr Rooke seeks to read words into the provision that are not there.

• [36] If the Parliament intended some lesser standard of proof to apply, it would have used exact words to describe such a standard. The statutory text used, namely, that the insurer has power to reject a relevant application '...only if satisfied the worker ... has not sustained an injury' can only reflect the standard of persuasion as referred to by Dixon J in Briginshaw v Briginshaw. If the insurer reaches a level of satisfaction, formed reasonably upon the material before it, that the worker did not sustain an injury, then it has the power to reject the application. That was the issue before WorkCover Queensland and before the Regulator in its review decision. The appeal hearing before the Vice President was a hearing de novo of the matter that was before the Regulator,[43] namely, whether or not Mr Rooke sustained an injury (to his neck and shoulders) within the meaning of s 32(1) of the Act.

• [37] The purpose of s 132(7)(b) of the Act also confirms the construction of the provision borne out by the statutory text.

1. Relevantly, sections 131 to 134 of the Act are located in ch 3 ('Compensation'),[44] pt 5 ('Compensation application and other procedures') of the Act. Section 131 of the Act ('Time for applying') deals with the time within which a valid and enforceable application for compensation is made. Section 132 of the Act ('Applying for compensation') provides for the formalities and other procedures for making an application for compensation.

• [39] The relevant provisions of s 132A of the Act are set out earlier in these reasons.

• [40] Section 134 of the Act ('Decision about application for compensation') deals with the decision to be made by an insurer, and when such a decision must be made, in respect of an application for compensation.

[41] Chapter 5 of the Act deals with access to damages.[45] Section 237 of the Act limits the workers who are entitled to seek damages for an injury they have sustained. Relevantly, by s 237(1) of the Act, a worker is entitled to seek damages if the worker:

• has received a notice of assessment for the injury (being a notice issued by an insurer under s 185 of the Act, in respect of an assessment, under s 179 of the Act, of the degree of permanent impairment to a worker because of the worker's injury); or

• - has received a notice of assessment for any injury resulting from the same event; and

• - for the assessed injury, the worker has a permanent impairment percentage of 20% or more or, under s 239 of the Act, has elected to seek damages.

• [42] Section 132A of the Act is, therefore, part of the Act's scheme that gives an entitlement to a worker to seek damages for an injury. Section 132A provides a mechanism for a worker to seek damages when they have not made an application for compensation for an injury. Relevantly, a central question to be determined in deciding whether to grant an application made under s 132A of the Act (for the worker's injury to be assessed for permanent impairment under s 179 of the Act) is whether the worker suffered an injury within the meaning of s 32(1) of the Act.

• [43] Section 132A of the Act was amended by the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015 ('the 2015 Amendment Act'). Immediately prior to the operation of the 2015 Amendment Act, s 132A of the Act provided:

132A Applying for assessment of DPI before applying for compensation

(1) This section applies to a worker who has not made an application under section 132.

(2) The worker may apply to the insurer to have the worker's injury assessed under section 179 to decide if the worker's injury has resulted in a DPI.

(i) a certificate in the approved form given by a doctor who attended the worker; and

(ii) any other evidence or particulars prescribed under a regulation.

(4) A registered dentist may issue the certificate mentioned in subsection (3)(c)(i) for an oral injury.

(5) If the worker can not complete an application because of a physical or mental incapacity, someone else may complete it on the worker's behalf.

• [44] By virtue of s 4 of the 2015 Amendment Act, as from 31 January 2015, ss (6) to (12) were inserted into s 132A. As from that time, s 132A(7) of the Act, while not in its present form (which now includes s 132A(7)(c)), provided:

(7) The insurer may reject the application only if satisfied the worker-

(a) was not a worker when the injury was sustained; or

• [45] The Explanatory Notes to the Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 relevantly provided:

Clause 4 amends section 132A of the Act to specify the decisions the insurer must make in determining the application, the time the decision must be made within, and that the decisions [sic] of an insurer is reviewable. The amendment also clarifies that the decision of the insurer to accept the application does not entitle a worker to compensation for the injury.[46]

• [46] On the clear words used in s 132A(7) of the Act, its purpose is to set out the circumstances upon which the insurer's power, to reject an application by a worker for an assessment of a percentage of permanent impairment, is exercised. Such a purpose is confirmed by the relevant part of the Explanatory Notes to the Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 set out above.

• [47] There is nothing in the text of 132A of the Act, or any other part of the Act, which suggests that s 132A(7)(b) of the Act has the purpose pressed by Mr Rooke, namely, for an insurer to assess if it was likely a worker had suffered an injury with the ultimate determination of that matter to be made later by a court of competent jurisdiction in a claim for damages.

• [48] Indeed, given the very detailed provisions in ch 5 of the Act ('Access to damages') that regulate the determination of a worker's legitimate claim for damages, it would be reasonably expected that chapter would contain provisions that may support the scheme pressed by Mr Rooke. I was not taken to any such provisions.

• [49] Reading the Primary Decision as a whole, the Vice President approached the matter by determining if he was reasonably satisfied, on the evidence before his Honour, that Mr Rooke suffered an injury within the meaning of the Act. This led to his Honour's conclusion in paragraph [47] of the Primary Decision. As the appellant, Mr Rooke carried the legal burden of proof about that issue. The legal burden of proof was not on the Regulator.[47] Nothing in s 132A(7)(b) of the Act affected the legal burden of proof borne by Mr Rooke.

• [50] Having regard to the statutory text used in s 132(7)(b) of the Act, and the purpose of that provision, the Vice President correctly applied the civil standard of proof. The Vice President did not engage in any error of law in respect of the standard of proof that was applied. The Vice President correctly decided the matter by determining that Mr Rooke carried the legal burden of proof.

• [51] For these reasons, the third ground of appeal is not made out.

• [52] Mr Rooke contends that the Vice President erred in law in finding that Mr Rooke had failed to prove, to the requisite standard, that he had suffered an injury to his neck and shoulders, because such a finding was not open on the evidence.

• [53] In his written submissions, Mr Rooke contended that:

• the finding (that he did not suffer an injury within the meaning of the Act) was not open on the evidence; and

• the first ground of appeal was pursued '... on the basis that to make a finding of fact not open on the evidence is an error of law' and that '... in this jurisdiction it has been accepted that where there is an absence of evidence supporting the finding, then there will be an error of law'[48] citing the decision of Martin J, President in Carlton v Blackwood ('Carlton').[49]

• [54] Mr Rooke's contention, and his submissions in support of that contention, are misconceived.
• [55] The question of whether there is any evidence of a particular fact is a question of law.[50] Further, the question of whether a particular inference can be drawn from facts found or agreed is a question of law.[51] An error of law will occur where there was no evidence to support a finding of fact or an inference drawn.[52]
• [56] However:
  • where there is evidence of a fact, the question of whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish a fact, is itself a question of fact and not a question of law;[53] and

• there is no error of law in simply making a wrong finding of fact.[54]

• [57] The decision of Martin J in Carlton, relied upon by Mr Rooke as authority for this first ground of appeal, is not authority that supports his contention. In that case, Martin J stated (footnotes omitted):

• [28] But, in this appeal, the appellant only argues that there was not "sufficient probative evidence". If that is the case, then that will not be an error of law because the task for the appellant is to show an absence of evidence. Provided that there is some factual basis for the Commissioner's finding, there can be no error of law on the "no evidence" ground. If the Commissioner made a finding for which there was no evidence, that will be an appellable error if it is relevant to the case conducted before the Commissioner.

• [29] It may be that the best way to interpret the argument for the appellant is to regard it as a series of assertions that certain facts should have been found, but weren't.

• [58] Mr Rooke does not contend, in this ground of appeal, that there was no evidence to support the Vice President's finding that he did not suffer an injury within the meaning of the Act.

• [59] Sub-paragraphs a., c., e. (the first part), f., g., h., i. and j of the first ground of appeal concern aspects of the evidence in respect of which Mr Rooke contends the Vice President should have found that he suffered an injury within the meaning of the Act. These matters actually describe the allegation that the Vice President erred in fact. They do not describe an allegation that his Honour erred in law.

• [60] Sub-paragraphs b., d. and e. (the second part) of the first ground allege that the Regulator failed to comply with the rule in Browne v Dunn.[55] However, properly understood, these aspects of the first ground of appeal also allege that the Vice President made errors of fact. Mr Rooke submitted:

(a) the evidence showed the applicant was involved in an incident at work where he fell off a ladder striking a vanity unit and then the floor while having a large air tank on his back and a heavy helmet on his head while in the course of his employment ("the incident");

(b) the applicant immediately felt pain in his neck and shoulders (as well as to other parts of his body not relevant to the appeal);

(c) the applicant immediately complained to co-workers of the pain in his body in the neck and shoulder regions;

(d) the applicant complained to his wife of suffering pain in his neck and shoulder regions;

(e) the applicant's wife observed him to have restrictions of movement in his neck and shoulder region in the days after the incident; and

(f) the applicant complained of ongoing problems with his neck and shoulder after the date of the incident.

1. Central to the appeal is the proposition that the nature of the incident including matters such as the equipment carried by the appellant at the time was one likely to have caused the neck in [sic] the back injuries that the appellant claimed he had in the incident.

1. The applicant submits the evidence was unchallenged because there was no cross examination of the applicant or witnesses giving the evidence summarised in the previous paragraph that was to the effect those witnesses were deliberately not telling the truth or there were particular factors that would cause a trier of fact to be concerned about the reliability of their evidence. There was also no counterfactual proposition put to any of those witnesses.
2. The cross examination of the applicant was limited to putting it to the appellant that he had not reported the injuries to the neck and back in some circumstances where he might have and also that he had suffered an injury to his neck in another incident. It was not put to the appellant that he was not speaking the truth or that he may have had some reason to have an incorrect recollection about the relevant matters; that is insofar as it may have been intended to suggest the evidence given by the applicant was not true or unreliable for some particular reason so there was no compliance with the rule in Browne v Dunn (1893) 6 R 67 at 76-77.

1. The breach of the rule in Browne v Dunn does not mean a trier of fact is bound to accept the evidence that was not challenged but where there is a strong body of evidence in favour of the unchallenged position the fact the evidence is not so contradicted should weigh in favour of findings in favour of the person giving such evidence.

1. The reasons for decision of the learned Vice President do not include any statement that he found the evidence from the applicant implausible or there was some aspect of his demeanour that led him to the view he could not accept the evidence was reliable. [56]

• [61] The Regulator, in its written submissions, contended that it did comply with the rule in Browne v Dunn because its case was that:

• Mr Rooke did not hurt his neck until after September 2017, which it squarely put to him in cross-examination;[57] and

• there was no direct evidence from Mr Gambin and Mr Lobb that Mr Rooke suffered any injury to his shoulder.[58]

• [62] It is unnecessary to decide if the Regulator did or did not comply with the rule in Browne v Dunn. This is because on Mr Rooke's own submissions, as emphasised above, he contends that the alleged failure by the Regulator to comply with the rule in Browne v Dunn resulted in the Vice President incorrectly weighing evidence. Again, the complaints made do not allege an error of law, but an error of fact.

• [63] That Mr Rooke's complaint is about an alleged error of fact, and not an alleged error of law, is also borne out by his further submissions. Mr Rooke submits:

• he gave evidence that he suffered '...symptoms of a neck and shoulder injury immediately after the event' which was corroborated by lay witnesses and by his complaint to his General Practitioner about pain in the scapular region;[59]

• the Vice President, in the Primary Decision, referred to a lack of evidence of him (Mr Rooke) contemporaneously reporting any neck or shoulder symptoms or injuries;[60] and

• it was '...not open to the QIRC on the evidence before it to be satisfied the appellant had not suffered the neck and back injuries the subject of his appeal. Put another way, the evidence referred to in that paragraph did not prove the injuries were not suffered.'[61]

• [64] These submissions squarely allege that the Vice President erred in fact, not in law.

• [65] For the reasons I have given, this ground of appeal is misconceived. It alleges an error of law when the substance of the complaint is that there was an error of fact.

• [66] There is one further matter. In his written submissions, Mr Rooke contended that the first ground of appeal '... is broad enough to take into account an appeal based on Wednesbury unreasonableness'.[62] In support of that submission, Mr Rooke cited paragraph [20] of the decision of Drummond J in Norton v Comcare ('Norton').[63] In that case his Honour stated:

[20] In Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 290, Mason CJ and Deane J considered that the Wednesbury formulation of unreasonableness contained in s5(2)(g) the Administrative Decisions (Judicial Review) Act 1977 (Cth) extended to the case of a decision-maker who "makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course". This suggests that when a question of Wednesbury unreasonableness arises, it is not just the ultimate decision that can be examined for that particular flaw: attention can properly be focused also on the reasons given by the decision-maker for arriving at its decision. And if those reasons can be said to show that the decision has been reached in a manner devoid of plausible justification, it will be reviewable for Wednesbury unreasonableness, even though the material available to the decision-maker was such that the ultimate decision could have been justified on a basis different from that adopted by the decision-maker.

• [67] There are three problems with this submission.

• [68] First, the cited part of the decision in Norton is not authority for the proposition that a ground of appeal alleging an error of law, on the basis there was no evidence to support a finding of fact, is broad enough to encompass an appeal based on Wednesbury unreasonableness. The cited part of the decision in Norton concerns the matters that may be examined in the judicial review of an administrative decision under s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977, namely, where it is contended an exercise of a power was so unreasonable that no reasonable person could have so exercised the power_._

• [69] Secondly, the task of a court, where it is alleged a decision is legally unreasonable, is to ask whether the exercise of power by the decision maker was beyond power because it was legally unreasonable.[64] The first ground of appeal does not, in its form or in its substance, allege that the Vice President acted in excess of jurisdiction or otherwise engaged in jurisdictional error.

• [70] Thirdly, in any event, legal unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[65] For the reasons I give below in respect of the fifth ground of appeal, the Primary Decision does not lack evident and intelligible justification.

• [71] For these reasons, the first ground of appeal is not made out.

• [72] The contention here is that the Vice President erred in law in determining the case on the basis that Mr Rooke's evidence, that he had suffered an injury, was by itself insufficient to prove an injury for the purposes of the Act.

• [73] For the same reasons as I have given in respect of the first ground of appeal, this ground is misconceived.

• [74] The form of the complaint made in respect of this ground of appeal is that the Vice President erred in law. However, in substance, the complaint is that the Vice President erred in fact, namely, that Mr Rooke's evidence that he had suffered an injury was by itself insufficient to prove an injury for the purposes of the Act.

• [75] In paragraph 38 of his written submissions to this Court, Mr Rooke submitted:
  1. If the appellant's alternative proposition that the process to be undertaken and measure of proof needed should turn on the nature of the dispute between the parties and have regard to the strength of the evidence in favour of the appellant as compared to the evidence tending to contradict the appellant's case, the appeal should be allowed because the appellant's case was not directly contradicted by any evidence nor challenged by the propositions being put to the appellant and his witnesses that what they were saying was not true.
• [76] Mr Rooke's submissions confirm the contention, that in respect of this ground, the complaint is that the Vice President erred in fact.

• [77] For these reasons, the third ground of appeal is not made out.

• [78] By this ground of appeal, Mr Rooke alleges that the Vice President erred in law in failing to provide adequate reasons for his Honour's decision.

• [79] In Kelsey v Logan City Council & Ors (No. 5) ('Kelsey')[66] I recently referred to the relevant principles about adequacy of reasons and stated (footnotes omitted):

• [215] In DL v The Queen ('DL'), Kiefel CJ, Keane and Edelman JJ relevantly stated:

1. The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision". In the absence of an express statutory provision, "a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied". One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
2. The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge's failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

"Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."

• [216] The passage in DL at [33], about not requiring a minute explanation of every step in the reasoning, cited the decision of Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd where his Honour stated:

This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.

1. Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.

• [80] Mr Rooke submitted:
  1. In the further alternative, if the commission failed to provide adequate reasons as set out above in that the reasons do not adequately explain why the evidence of the applicant which was corroborated to a large extent by other witnesses whose evidence was not rejected was not accepted, the appeal ought be allowed.

• [81] It is not clear as to what Mr Rooke is referring by stating '...as set out above'. On my reading of the submissions as a whole, I conclude that it is a reference to paragraph 38 of his written submissions to this Court as set out in paragraph [75] of these reasons. However, when regard is had to Mr Rooke's submissions about this ground of appeal, my view is that, in substance, Mr Rooke's complaint is not about adequacy of reasons but about the fact that the Vice President made a finding of fact that he did not suffer a compensable injury to his neck and shoulders because his Honour did not accept the evidence led by him.

• [82] In any event, even if I am wrong about my characterisation of this ground of appeal, for the reasons I give below in relation to the fifth ground of appeal, this ground of appeal is not made out. The Vice President's reasons met the principles about adequacy of reasons.

• [83] These grounds of appeal should be dealt with together. It is convenient to deal with the sixth ground of appeal first.

• [84] In truth, this is not a ground of appeal. Mr Rooke contends that it is in the public interest that he is given leave to appeal to this Court on the ground of error of fact. By his submissions, Mr Rooke contends that such leave is needed by virtue of s 557(2) (and s 565) of the Industrial Relations Act 2016. Indeed, this was the proper approach on the older authorities about appeals to this Court under the Act.

• [85] However, Davis J, President in Turay v Workers' Compensation Regulator ('Turay'),[67] held that s 557 of the Industrial Relations Act 2016 does not define the grounds of appeal from a decision of the Commission, to this Court, under ch 13, pt 3, div 1A of the Act.[68] When I brought this decision to the attention of the parties during the hearing of Mr Rooke's appeal, neither party suggested Turay was wrongly decided.

• [86] By the fifth ground of appeal, Mr Rooke broadly contends that the Vice President '...erred in law and in fact in not finding the appellant had suffered a neck and/or shoulder injury.' There is an issue with this ground of appeal and the way it was argued.

• [87] Mr Rooke's appeal to this Court is under ch 13, pt 3, div 1A of the Act. Relevantly, s 561(3) of the Act provides that the appeal is by way of rehearing on the evidence and proceedings before the Commission unless the Court orders additional evidence be heard.

• [88] In Allesch v Maunz,[69] Gaudron, McHugh, Gummow and Hayne JJ described the nature of an appeal by way of rehearing:
  1. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.[70]
• [89] The nature of an appeal by way of rehearing was earlier commented upon by Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe where their Honours relevantly stated:

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.[71]

• [90] By this ground of appeal, Mr Rooke does not advance any contention that a specific finding of fact, or that a particular conclusion reached about the law, was wrong. Rather, by this ground of appeal, and the submissions made in support of it (set out below), Mr Rooke verges on inviting the Court to hear his appeal against the review decision from the beginning. An appeal by way of rehearing is not an opportunity for a disappointed litigant to have a retrial of the issue before the primary court. Some legal, factual or discretionary error, which vitiates the decision at first instance, must be shown before an appellate court will intervene.

• [91] Despite this issue, for the reasons I give later, I am not persuaded, having regard to Mr Rooke's submissions, that the Vice President engaged in any error.

• [92] First, I will address the contention that the Vice President's reasons were inadequate.

• [93] Mr Rooke's case before the Vice President was that in respect of his fall during the work event that occurred on 14 September 2017:
  • he also suffered injuries to his neck and his shoulders;

• he told Mr Gambin and Mr Lobb of the pain which he was suffering, to those parts of his body, immediately after the fall and an Incident Report was created which supported his claim of injuries to his neck and shoulders;

• the medical evidence he led supported his claim.[72]

• [94] The Regulator's contended case was, in short, that there was no contemporaneous factual or medical evidence to support Mr Rooke's claim that he suffered an injury to his neck and shoulders arising out of the work incident on 14 September 2017.[73]
• [95] In my view, the Vice President's reasons were adequate in that his reasons were consistent with the authorities to which I have referred earlier in these reasons.
• [96] The Vice President:
  • at paragraphs [16] and [23] and [24] of the Primary Decision, referred to Mr Rooke's evidence about his contemporaneous reporting of the claimed injuries to his neck and shoulders and then:

• - at paragraphs [17] to [22] of the Primary Decision, his Honour gave reasons why the evidence of Mr Lobb and Mr Gambin, and the evidence of and about the Incident Report, did not support Mr Rooke's claims; and

• - at paragraphs [41] and [42] his Honour gave reasons why Mrs Rooke's evidence did not assist Mr Rooke by referring to the evidence she gave, including that there was limited oral evidence of Mr Rooke complaining about neck pain to Mrs Rooke and that there was no evidence given by her that Mr Rooke demonstrated any shoulder injury; and

• at paragraphs [25] to [28] of the Primary Decision, referred to the evidence of Mr Rooke and of Dr Korinihona about Mr Rooke's attendance on Dr Korinihona on 29 September 2017 and then, at paragraph [46] of the Primary Decision, gave detailed reasons why there was no medical evidence that supported Mr Rooke's claim that he suffered injuries to his neck and shoulders during the work incident that occurred on 14 September 2017, and that, similarly, there was nothing in the Incident Report that supported Mr Rooke's appeal.

• [97] Having regard to the above, the Vice President gave a reasoned explanation for his Honour's rejection of the evidence led by Mr Rooke in support of his claims that he suffered injuries to his neck and shoulders that arose out of, or in the course of, his employment on 14 September 2017.

• [98] That is the Vice President, in confirming the review decision, dealt with each of the arguments about the evidence raised by Mr Rooke and assigned reasons for his Honour's rejection of Mr Rooke's submissions.

• [99] No error of law is revealed in respect of the content of his Honour's reasons.

There are no errors of fact or law in the Primary Decision

• [100] In respect of the Court's function in an appeal by way of rehearing where it is alleged there are errors of fact, in Doerr v Gardiner,[74] the Queensland Court of Appeal stated:

• [66] The requirement to conduct a real review of the trial record and an evaluation of the trial judge's reasons may nonetheless warrant this Court drawing its own inferences and conclusions:

"Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'."

• [67] Whilst the appeal court may draw its own inferences or conclusions from primary findings of fact which are not disputed or which are not affected by error, it is necessary to recognise the "natural limitations" in a review which proceeds "wholly or substantially on the record".
• [68] For that reason, there is a recognised reluctance to revisit factual findings which depend on credibility findings. The appeal court proceeds with restraint when addressing those findings because its review is conducted without the benefit of the opportunities available to the trial judge to evaluate the credibility of each witness and to experience the "feeling" of the conduct of a trial which cannot always be "fully shared" from a reading of the evidence on the page:

"Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." (footnotes omitted)

• [69] Nonetheless, in "some, quite rare, cases" though the facts fall short of being "incontrovertible" the appeal court may decide that the conclusion of the primary judge was "glaringly improbable" or "contrary to compelling inferences". As the High Court explained in Lee v Lee:

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

• [70] In that kind of case the appeal court must conduct its own review, making all due allowance for the advantages available to the primary judge and, if material error is disclosed, the appeal court cannot "shrink from giving effect" to its own conclusion.

• [101] An error made in the course of elaborating the applicable law, particularly in construing a relevant statutory provision, is always an error of law.[75] Ordinarily, whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.[76] However, where a statute uses words according to their ordinary meaning, then the question of whether the facts found fall within those words is a question of fact.[77]

• [102] Mr Rooke challenges the ultimate finding made by the Vice President by referring to evidence which he submits was '...unchallenged', namely:
  • the evidence that showed he was involved in an incident at work where he fell off a ladder striking a vanity unit and then the floor while having a large air tank on his back and a heavy helmet on his head while in the course of his employment;

• that he immediately felt pain in his neck and shoulders;

• that he immediately complained to co-workers of the pain in his body in the neck and shoulder regions;
• that he complained to his wife of suffering pain in his neck and shoulder regions;
• that his wife observed him to have restrictions of movement in his neck and shoulder region in the days after the incident; and
• that he complained of ongoing problems with his neck and shoulder after the date of the incident. [78]

• [103] The basis upon which Mr Rooke contends the above matters were unchallenged are that:

• there was no cross-examination of him, or his witnesses:

• - to the effect that they were deliberately not telling the truth; or

• - about particular factors about their reliability; and

• - about counterfactual propositions;[79]

• the cross-examination of him was limited to him not reporting injuries to his neck and back '... in some circumstances where he might have and also that he had suffered an injury to his neck in another incident.';[80] and

• it was not put to him that he was not speaking the truth or that he may have had some reason to have an incorrect recollection about the relevant matters.[81]

• [104] Mr Rooke also referred[82] to paragraph [23] of the Primary Decision where the Vice President stated that Mr Rooke told the Commission that he did not record that he suffered injuries to his neck and shoulders because

I don't go and every time I break a nail and I go and whimp off to a doctor.[83]

• [105] In response to that evidence, Mr Rooke referred[84] this Court to the following of his evidence. First his evidence in cross-examination, namely:

Now, you didn't report your neck and shoulder injuries to anybody at the workplace, did you, in relation to September 2017?---Yeah, I did. Two of our officers knew, Chris Gambin and Greg Lobb.[85]

• [106] Secondly, he referred[86] to his evidence upon the Vice President asking him a question, namely:

HIS HONOUR: But you reported that you had lower back pain?---Yeah.

You reported other injuries that you'd sustained?---Yes.

But the question was of you that you hadn't reported that you had a neck and shoulder injury. Now, if you report the other things why is it the case that you did not report the neck and shoulder?---Because, your Honour, when - when I - I initially hurt myself I reported to the officers on the fire ground at that time that I'd had a - I had a fall.

Yes?---And that with that I'd hurt my neck and my back, right.

And who did you tell at that stage?---I tell - at that stage you tell - you have a chain in command.

But who's the person that you told that?---The officer-in-charge.

And who was that?---It would have been - it was Chris Gambin and Greg Lobb, they were standing next to each other when I actually told them.[87]

• [107] Mr Rooke then referred to the evidence given by his wife, namely, that she observed that he (Mr Rooke):
  • had neck pain and restrictions of movement in turning, with the reference to turning viewed in regard to Mr Rooke's evidence recited in paragraph [16] of the Primary Decision, namely, that he could not turn his neck; and

• was unable to use a towel which would be consistent with him having a shoulder injury.[88]

• [108] Mr Rooke then submitted that the cross-examination of Mrs Rooke was limited to one question which was not in any way designed to challenge the veracity or accuracy of the evidence given by Mrs Rooke referred to in the previous paragraph of these reasons.[89]
• [109] Mr Rooke further submitted (footnotes omitted):

1. It is said in paragraph 17 of the decision that the appellant told Mr Lobb that ". . . He was sore - he was having trouble with his back and his neck. " The words used in that part of the decision can only be interpreted as an acceptance that there was a complaint by the appellant of neck pain to Mr Lobb as described. This is so even though there is reference to the cross examination and reference to the fact that Mr Lobb when filling out an incident report did not include reference to a neck and shoulder injury.

1. Similarly, it appears from paragraph 17 of the decision that the evidence of Mr Gambin, that he was told by the appellant that the appellant had hurt his neck, was accepted.
2. The reasons for decision did not refer to the evidence given by Mr Lobb in chief that was to the effect he could not describe the injury as a neck injury because he was given a limited range of possible descriptions of the injury by a computerised form.
3. There was no finding made that because of the lack of reporting to the medical practitioners that it was found the appellant's evidence could not be accepted as being reliable. Nor was there any reference to anything of the demeanour of the witnesses as being a factor in making the decision.
4. At paragraph 46 of the reasons the learned Vice President said he accepted the evidence of Dr Korinihona supported by his clinical notes. While it was said those notes did not reveal an injury to the appellant's neck or shoulders arising out of the incident on 14 September 2017 Dr Korinihona gave evidence the following effect:

(a) his notes were only a "summary of - of what - what was done in - in that - that visit"

(b) the appellant was "sore all over" and "in a lot of pain";

(c) that the appellant's "backpain and the chest pain" were the "most pertinent symptoms that day"; and

(d) he could not remember if the appellant had told him he had other tender areas in his body.

• [110] By way of summary, the Regulator submitted that:
  • its case before the Vice President was not that Mr Rooke never had pain in his shoulders but, rather, that Mr Rooke did not hurt his neck until after September 2017 and that proposition was put squarely to Mr Rooke when he was cross-examined before the Vice President;[90]
  • in coming to the findings and ultimate conclusion on this matter, the Vice President outlined:
    • - the evidence of Mr Rooke (at paragraphs [15], [17], [24] and [25] of the Primary Decision) with respect to his evidence about his pain and the reports he said he made to others; and

• - the evidence from other witnesses (at paragraphs [41] and [42] of the Primary Decision);[91]

• while Mr Rooke did give evidence that he had pain, that was not the only evidence before his Honour;[92]
• in coming to the view that Mr Rooke had not sustained the neck and , or in the alternative, shoulder injury, the Vice President considered the medical and documented evidence as summarised at paragraph [46] of the Primary Decision;[93]
• Mr Rooke did not lead any medical evidence that provided a diagnosis or opinion that he suffered the injury the subject of his claim, despite him leading evidence from Dr Korinihona;[94] and
• paragraph [46] of the Primary Decision provides detailed reasons for the findings made.[95]

• Dr Korinihona's evidence does support the finding that Mr Rooke did not report any neck or bilateral shoulder problems to him;[96]

• as noted in paragraph [28] of the Primary Decision, Dr Korinihona gave evidence that if Mr Rooke had told him he was suffering neck pain, then he (Dr Korinihona) would have requested an x-ray of Mr Rooke's cervical spine;[97]

• whether or not Mr Rooke told his co-workers or his wife that he had a sore neck and shoulders is not determinative of the issue of whether Mr Rooke suffered an injury at a particular time;[98]

• there was no medical opinion or evidence that the incident on 14 September 2017 caused Mr Rooke's neck and shoulder injuries in that Dr Korinihona's evidence, at its highest, was that Mr Rooke suffered a '... soft tissue contusion above the torso' and '...soft tissue contusion of the upper torso';[99] and

• the evidence from Mr Gambin and Mr Lobb did not refer to any alleged shoulder injury suffered by Mr Rooke.[100]

• [112] By way of conclusion, the Regulator submitted that:
  • the primary fact Mr Rooke suffered pain cannot reasonably give rise to an inference that he sustained an injury to his neck and shoulders in the circumstances referred to in paragraph [46] of the Primary Decision;[101] and

• having regard to paragraph [46] of the Primary Decision, the Vice President's conclusion that the evidence of Dr Korinihona, supported by his clinical notes, did not reveal that Mr Rooke suffered an injury to his cervical spine or bilateral shoulders arising out of the incident on 14 September 2017, showed the path by which his Honour's ultimate conclusion was reached, being a conclusion which reveals no error.[102]

• [113] Mr Rooke's submissions do not persuade me that the Vice President erred in fact or in law in confirming the review decision. This is for three reasons.

• [114] First, the assertion that it was not suggested to Mr Rooke, and to the witnesses he called, that they were not telling the truth or that their evidence was not reliable, does not support the contention the Vice President's decision was in error. This is because the Vice President, in coming to his Honour's conclusion, relied on the evidence given by Mr Rooke and the other witnesses in cross-examination and on the documentary exhibits tendered. This is confirmed by the following reasons given in the Primary Decision:[103]

• [16] During cross-examination, the following exchange occurred in relation to whether the Appellant had reported the injury to anybody at the workplace:

Now, you didn't report your neck and shoulder injuries to anybody at the workplace, did you, in relation to September 2017?---Yeah, I did. Two of our officers knew, Chris Gambin and Greg Lobb.

You told them that you hurt your lower back, didn't you?--- No, no. No. No. Well, when I can't turn me neck, I'm not going to say that I only hurt me lower back when I can't turn me neck, I can't take a breath. Yeah, they all knew that I'd hurt meself [sic] big time and they were the ones who were advising me to take the time off.

You didn't make a record of that though, did you?---No ...

• [17] The Appellant told Mr Lobb that "...he was sore - he was having troubles with his back and his neck." Mr Gambin's evidence was that the Appellant told him: "That he had - his neck and his back were sore, like he had hurt his back." Neither Mr Gambin nor Mr Lobb referred to any shoulder injury suffered by the Appellant.

• [18] A SHE (Incident Investigation Report) was lodged on behalf of the Appellant, but it is said not to contain a detailed list of the injuries sustained by the Appellant.

• [19] Mr Gambin told the Appellant that he needed to complete the Incident Report. The Appellant claimed he had difficulty completing the report but the end sections of the report identifying and describing the injuries were authored solely by Mr Lobb.
• [20] During cross-examination, Mr Lobb was referred to page 3 of the Incident Investigation Report under the heading "Investigation" and subheading "Describe the damage or injuries sustained" where it is stated "Injuries were made to the lower region of Fire Fighter Rooke's back and hip plus injuries to his rib on right side". Mr Lobb's evidence was:

There's nowhere in that comment - that specific comment that you make where you have written that the injuries that Leonard Rooke sustained on that date were cervical spine injuries or bilateral shoulder injuries; you didn't indicate that on this incident form, did you? ---And were they - were they in the drop-down box?

I'm talking about the bit that you wrote in yourself:

You did not write "cervical spine" or "shoulder injuries" in that box, did you, sir? ---No, I didn't but by the same token I'm not medically advised either.

Thank you? ---To me - to me back and hip injuries cover that.

Made to the lower region of FF Rooke's back and hip?

That is not neck, is it, sir? ---By that definition, no, but, you know - - -

• [21] The Appellant said in cross-examination that a co-worker, Ms Karen Christopher completed the Incident Investigation Report, and it was sent to him to read. Although he did read it, the Incident Investigation Report did not mention neck or shoulder injury.

• [22] The Nature of the Injury is expressed as back pain, lumbago, sciatica and injuries to the lower region of the Appellant's back and hip plus injuries to his rib on right side.

• [23] The Appellant told the Commission that he did not record that he suffered injuries to his neck and shoulder because: I don't go and every time I break a nail and I go and whimp off to a doctor.

HIS HONOUR: But you reported that you had lower back pain? ---Yeah.

You reported other injuries that you'd sustained? ---Yes.

But the question was of you that you hadn't reported that you had a neck and shoulder injury. Now, if you report the other things why is it the case that you did not report the neck and shoulder? ---Because, your Honour, when - when I - I initially hurt myself I reported to the officers on the fire ground at that time that I'd had a - I had a fall.

Yes? ---And that with that I'd hurt my neck and my back, right.

• [25] The Appellant attended on Dr Andrew Korinihona a General Practitioner at Gordonvale Family Medical Centre on 29 September 2017. During his evidence, the Appellant described that attendance in the following way:

And I went and saw Andrew and told him what had happened, that I'd fallen off a ladder and he took just a few details that I'd - I'd hurt my neck and back and shoulder and ribs and - and he wrote me out an X-ray to go and get an X-ray from which we've - what it showed - we do it had only showed up soft tissue damage anyway, nothing really that structurally, and went and got that, and then I came back after the X-ray thing and he goes, "Oh, you've done a bit of damage to - you've got soft tissue damage" and basically that was all he told me.

• [26] In evidence in chief, Dr Korinihona, said that in relation to the consultation on 29 September 2017, he recalled that the Appellant "... was very unwell, in terms of - he was in a lot of pain, when he came in". Dr Korinihona's evidence was:

All right. Can you tell us what you can recall of his story, in terms of telling you about something that had happened to him at work? ---Yeah. Well - well, I - I - I'll just have to refer to my notes now. He told me that he fell through a roof about two weeks ago, and while he was at work. And as he fell through the roof, he - the - the ceiling collapse with him, and he went down and landed on a - on - on - vanity, on a - a shower or - or a vanity in, like, he said he landed on his back. That's all.

And in terms of what he told you about the pain he was suffering. Do you have any recollection of what he said about that? ---Well, I - I can only refer to my - to the notes of the day. The back pain and the chest pain that he - he had, which were the more - more - most pertinent symptoms that day.

Did you conduct any clinical examination of Mr Rooke? ---Yes. He - I - I - he - he - he indicated to me that he - he was - he - he - he landed on - he went through, landed on his - on the vanity. He was experiencing a lot of chest pain and back pain. And on examination, he had maximum tenderness on the - in the - on - on the back mid-scapular a - around the - the ba - ba - the back spine, or - or the back. And - and on the posterior ribs. Ribcage area. Yeah.

And when you say that, are you repeating what you've put in your note? ---Yes. What - what - what was recorded on the notes.

• [27] The Patient Health Summary for 29 September 2017 records under "Reason for Visit" as "Back pain/Chest Pain".

• [28] Dr Korinihona reiterated that the clinical notes he relied on were a summary of what was done on that visit. Dr Korinihona did not record an injury to the Appellant's neck (cervical spine) or bilateral shoulders. He told the Commission that had the Appellant complained of cervical pain, then he would have requested an x-ray of the cervical spine.

• [37] It was put to the Appellant that the neck injuries were not documented until after the Appellant's "face plant". He was asked:

What I want to put to you is that your neck pain didn't start to be documented until after you face planted, in the doctor's notes, and I'm wondering - and I want to put to you that you didn't hurt your neck until after or during the face plant, well and truly after this September 2017 event?---Oh, the face plant wasn't anywhere near as bad as what the fall off the ladder was. Okay, I hurt my neck - oh, yes, I did hurt my neck on the face plant ...

• [39] In cross-examination the Appellant said:

It's not as though you don't know how to make a workers' compensation claim?---That's exactly right.

Yet you didn't make your claim for your neck and shoulders until September 2020, some three years later? ---Three years later, that's exactly right, yeah.

And so - - -?---Because at that time there I just couldn't put up with the pain any longer and I actually went and saw - when I went and saw Taha and he said, "Are you going to do this as WorkCover?", and I said, "Well, I've had that many different injuries over this period of time that they've all seemed to have stemmed from - from that main injury of falling through the ceiling", and he goes, "Well, we can write it - we'll do it as WorkCover" and I said, "Do whatever you like, do it as WorkCover". But I didn't take - I didn't take the time off, I still worked with those injuries even though I - he was doing it as WorkCover. I filled out - I think he did the report that - because he said to me, "Are you capable of working?" I said, "Yeah, I can still work, I just put meself [sic] out on an out station and I can still work."

• [40] I accept the Respondent's submission that absent the Appellant's oral evidence, there is no direct evidence to support a finding that the Appellant complained of shoulder pain as a consequence of the incident.

• [41] Further, it is submitted that there is limited oral evidence of the Appellant complaining of neck pain to his partner and co-workers in the aftermath of the incident. The evidence of the Appellant's partner does not assist the Appellant's claim. Ms Rooke told the Commission that:

Did you see or hear anything that identified where he was suffering pain or restriction of movement? ---He said his lower back was hurting him and his neck, it seemed to be he couldn't turn, he'd never had full function of turning.

• [42] Ms Rooke did not identify in her evidence that the Appellant demonstrated any shoulder injury after the incident on 14 September 2017. The pain being experienced by the Appellant appeared to be predominately in his back. She said that the Appellant's "...lower back was hurting him and his neck"; he complained that "...his back was really hurting and he had trouble sleeping"; and "... he found sitting was compressing the lower back, so it wasn't helping."

• [43] The Appellant seeks findings that he suffered neck and/or shoulder injuries in the incident and that his application pursuant to s 132A of the WCR Act be accepted.

• [44] What is contended by the Appellant in his Statement of Facts and Contentions is that:

The physical injuries were suffered in the event. Therefore the appellant contends that his employment was a significant contributing factor to those injuries and therefore each of the physical injuries was an injury within the meaning of section 32 of the WCRA.

• [45] The Appellant has failed to establish that he suffered a work-related injury, namely, a neck and/or shoulder injury arising out of the incident on 14 September 2017.

• [46] In coming to that view, I accept the evidence of Dr Korinihona, supported by his clinical notes which do not reveal an injury to the Appellant's neck (cervical spine) or bilateral shoulders arising out of the incident on 14 September 2017. In the report of Dr Korinihona submitted to WorkCover Queensland on 2 November 2020 the nature of the injury sustained on 14 September 2017 was described as: Musculoskeletal soft tissue contusion of upper Torso. No rib/sternal fractures. Equally, I accept that the Patient Review Summary in relation to the Appellant's attendance on Dr Asbaghinamini on 2 February 2019 did not disclose a neck (cervical spine) injury and/or bilateral shoulder injury. Moreover, the Incident Report only referred to the Appellant suffering "Back pain, lumbago, sciatica" and records "Injuries were made to the lower region of Fire Fighter Rooke's back and hip plus injuries to his rib on right side." The first record of the Appellant suffering a neck injury only appeared after he had a "face plant" on 19 June 2018.
• [115] Secondly, there is no incontrovertible evidence which is contrary to the critical issue determined by the Vice President, namely, whether an injury to Mr Rooke's neck and shoulders arose out of, or in the course of, his fall at work on 14 September 2017. There is no unchallenged evidence, which the Vice President failed to take into account, which is contrary to any finding made by his Honour about that critical issue. Further, the factual findings made by the Vice President cannot be described as glaringly improbable or contrary to compelling inferences. On my review of the evidence, Mr Rooke's submissions do not point to any such conclusions.
• [116] Mr Lobb's and Mr Gambin's evidence, referred to in paragraph [17] of the Primary Decision, does not persuade me that the Vice President erred in fact.
• [117] Mr Lobb's evidence was that Mr Rooke told him '...he was sore - he was having troubles with his back and his neck.'[104] However, on Mr Lobb's own evidence, this statement was made to him after the date of the fall, and Mr Lobb said that it was a statement made when they were on the '...next tour', but gave no evidence of any date when that was said.[105] Further, Mr Lobb's evidence is not persuasive that Mr Rooke suffered a neck injury on 14 September 2017, in that Mr Lobb said Mr Rooke told him he was '...having troubles with his back and neck.'
• [118] Mr Gambin's evidence was equivocal about the critical issue to be determined by the Vice President. Mr Gambin's evidence was that Mr Rooke told him: 'That he had - his neck and his back were sore, like he had hurt his back.'[106]
• [119] Further, as the Vice President stated in paragraph [17], Mr Gambin and Mr Lobb did not refer to any shoulder injury suffered by Mr Rooke.
• [120] Mr Rooke contends that the Vice President did not take into account Mr Lobb's evidence in chief that, when filling out the Incident Report, he could not describe the injury as a neck injury because of the limited range of descriptions of a computerised form.[107] However, as set out in paragraph [20] of the Primary Decision, Mr Lobb was cross-examined about his completion of the Incident Report. The transcript records:

And in the investigation at the bottom of page 3, in capital letters there is "Investigation"?---Yeah.

On the right-hand side you've got, "Describe the damage or injuries sustained"?---Yeah.

You would have completed that?---I did, yes, by the look of that, yes.

Thank you. Now, that wasn't from a drop-down box, was it? It was something that you were able to put further particulars in?---I believe so, yeah, it looks like that, yes.

Okay. Now, I can see that you have come along here as a witness. Were you told before you were giving evidence today what injuries Mr Rooke was claiming for?---No. No, I don't, I don't know what Len's outcome is. I'm just doing it because, you know - - -

Because, you would be aware that Mr Rooke has sustained multiple injuries during his employment?---We all have.

And at this particular date you note, in terms of the damage or injuries sustained, that the injuries were made to the lower region of back and hip plus injuries to rib on right side?---Mmm.

Now, you'd agree with me that that's quite specific detail, isn't it?---Not - I don't think so. If you look at the ergonomics of somebody falling on their back with a breathing apparatus on their back. Now, breathing apparatus are one size fits all and so that means that for a small person, bigger or a man of Len's size, it's smaller so basically it will sit above his back - lower back and right - right in the belt assembly would be right below, his neck.

There's nowhere in that comment - that specific comment that you make where you have written that the injuries that Leonard Rooke sustained on that date were cervical spine injuries or bilateral shoulder injuries; you didn't indicate that on this incident form, did you?---And were they - were they in the drop-down box?

I'm talking about the bit that you wrote in yourself:

You did not write "cervical spine" or "shoulder injuries" in that box, did you, sir?---No, I didn't but by the same token I'm not medically advised either.

Thank you?---To me - to me back and hip injuries cover that.

Made to the lower region of FF Rooke's back and hip?

That is not neck, is it, sir?---By that definition, no, but, you know - - -[108]

• [121] Having regard to this evidence of Mr Lobb in cross-examination, the complaint Mr Rooke makes about Mr Lobb's evidence in chief is not made out.
• [122] Mrs Rooke's evidence[109] of her observations of Mr Rooke were at a time immediately after the incident on 14 September 2017, when there was no dispute that he did sustain injuries to his lower back and upper torso. In that respect, the evidence of what she observed of Mr Rooke's restricted movements, was not decisive of the critical issue to be determined by the Vice President.
• [123] Finally, the complaint made about Dr Korinihona's evidence about Mr Rooke's reporting of pain is not incontrovertible evidence that Mr Rooke suffered an injury, within the meaning of the Act, to his neck and shoulders on 14 September 2017. For the reasons given in paragraphs [25], [26], [27], [28] and [46] of the Primary Decision, Dr Korinihona gave no evidence that tended to prove Mr Rooke suffered an injury to his neck and shoulders at work on 14 September 2017.
• [124] Thirdly, leaving aside the issue agitated in the third ground of appeal, no submission was made that the Vice President misconstrued the Act, erred in determining that the facts, as his Honour found them, did not fall within s 32(1) of the Act properly construed (the definition of 'injury') or otherwise erred in law.
• [125] For these reasons, the fifth ground of appeal is not made out.

• [126] In Kelsey,[110] I also reviewed the authorities about delay. In that regard, I relevantly stated (footnote omitted and emphasis in the original):

• [194] In Monie, Hunt A-JA relevantly stated:

1. It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial. Delay may assist an appellant in establishing such error because, as the approach identified by the Full Federal Court demonstrates, the inference will more readily be drawn that a trial judge's failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge- either because of the time which has passed or because of the pressure on the judge in the end to complete the judgment. In Boodhoo v Attorney General of Trinidad and Tobago [2004] UKPC 17; [2004] 1 WLR 1689 at 1694 [11], the Privy Council acknowledged that the delay in giving the decision may adversely affect its quality to such an extent that it cannot be allowed to stand. That is what must be shown in order to demonstrate error resulting from delay which warrants either a reversal or a new trial. That is what I understand the judgment in Expectation Pty Ltd v PRD Realty Pty Ltd (at 32 [69] et seq) to be saying.

• [127] For the reasons given earlier, I am not persuaded that any error of fact or law was made by the Vice President in coming to his Honour's decision.

• [128] For the reasons I have given, none of the alleged errors, the subject of Mr Rooke's grounds of appeal, are made out. The consequence is that I will confirm the Primary Decision.

• [129] In its written and oral submissions, the Regulator did not seek any order, as to its costs of Mr Rooke's appeal to this Court, if it was successful. In any event, having regard to s 563(1) of the Act, I doubt this is a case where my discretion to make an order for costs against Mr Rooke would be enlivened.

Pursuant to s 562(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Queensland Industrial Relations Commission, dated 22 April 2024 in Matter Number WC/2021/112, is confirmed.

[1] Rooke v Workers' Compensation Regulator [2024] QIRC 089 ('the Primary Decision'), [1] (Vice President O'Connor).

[5] The Primary Decision (n 1) [51].

[9] Ibid [18]-[19], [21], [23] and [24].

[12] The Primary Decision (n 1) [26]-[28].

[16] The Primary Decision (n 1), [47].

[17] The written submissions of Mr Rooke filed on 12 June 2024 ('Mr Rooke's Court submissions'), para. 4.

[18] Mr Rooke's Court submissions, para. 10.

[19] Mr Rooke's Court submissions, para. 11.

[20] Mr Rooke's Court submissions, para. 12.

[21] Mr Rooke's Court submissions, para. 12.

[22] Mr Rooke's Court submissions, para. 12.

[31] T 1-5, l 26 to T 1-6, l 30, T 1-8, ll 20-39 and T 1-9, ll 10-24.

[35] The written submissions of the Workers' Compensation Regulator filed on 20 June 2024 ('the Regulator's Court submissions'), para. 30.

[36] The Regulator's Court submissions, paras. 31 and 33.

[38] AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10, [21] (Gageler CJ,

Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) (Citations omitted).

[39] T 1-9, l 36 to T 1-10, l 7and T 1-19, ll 3-23.

[40] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 274 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[41] Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, [34] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

[42] [1938] HCA 34; (1938) 60 CLR 336, 361-362. See also Peeks Ltd v Adelaide Oil Exploration Company Ltd [1937] SAStRp 24; [1937] SASR 154, 157-158 (Murray CJ), 160 (Richards J) and 161 (Cleland J).

[43] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461, [28]-[33] (Martin J, President).

[44] Section 9 of the Act defines what is meant by 'compensation' and provides:

Compensation is compensation under this Act, that is, amounts for a worker's injury payable under chapters 3, 4 and 4A by an insurer to a worker, a dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act.

[45] Section 10 of the Act defines what is meant by 'damages' and provides:

(1) Damages is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal

liability in the worker's employer to pay damages to-

(a) the worker; or

(b) if the injury results in the worker's death-a dependant of the deceased worker.

(2) A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under-

(a) another Act; or

(b) a law of another State, the Commonwealth or of another country.

(3) Also, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages for loss of consortium resulting from injury sustained by a worker.

[46] Explanatory Notes, Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015, 5.

[47] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] QIC 118; (2003) 172 QGIG 1447, 1448 (President Hall).

[48] Mr Rooke's Court submissions, para. 41.

[49] [2017] ICQ 001: (2017) 264 IR 414, [28] (Martin J, President).

[50] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 ('Bond'), 355 (Mason CJ).

[53] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 ('Azzopardi'), 155 B-G (Glass JA, Samuels JA at 157 agreeing).

[54] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J).

[57] The Regulator's Court submissions, paras. 24 to 25.

[58] The Regulator's Court submissions, para. 26.

[59] Mr Rooke's Court submissions, para. 43.

[60] Mr Rooke's Court submissions, para. 44.

[61] Mr Rooke's Court submissions, para. 45.

[62] Mr Rooke's Court submissions, para. 42.

[63] [2000] FCA 1068; (2000) 31 AAR 488.

[64] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 ('SZVFW'), [78] (Nettle and Gordon JJ).

[65] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, [76] (Hayne, Kiefel and Bell JJ).

[67] [2023] ICQ 013.

[69] [2000] HCA 40; (2000) 203 CLR 172.

[71] [1986] HCA 33; (1986) 162 CLR 1, 7. See also Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another [2002] FCAFC 157; (2002) 234 FCR 549, [50]-[54] (Weinberg and Dowsett JJ).

[72] The Primary Decision (n 1) [14]-[28], [32] and [41]-[42].

[73] The Primary Decision (n 1) [8].

[74] [2023] QCA 160 (Morrison and Bond JJA and Livesey AJA). Citations omitted.

[75] Azzopardi (n 53), 150 (Kirby P) and 156‑157 (Glass JA).

[76] Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, 7 (Mason J, Gibbs and Stephens JJ at 3 and Murphy and Aicken JJ at 11 agreeing) and Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 395 (Brennan CJ and Dawson, Toohey, Gaudron and McHugh JJ).

[77] Hope v Bathurst City Council [1980] HCA 16, 8 and Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 395.

[78] Mr Rooke's Court submissions, para. 20.

[79] Mr Rooke's Court submissions, para. 22.

[80] Mr Rooke's Court submissions, para. 23.

[81] Mr Rooke's Court submissions, para. 23.

[82] Mr Rooke's Court submissions, para. 26.

[83] T (22 November 2022) 1-29, l 45 to T 1-30, l 1.

[84] Mr Rooke's Court submissions, paras. 27(a) and (b).

[85] T (22 November 2022) 1-29, ll 36-38.

[86] Mr Rooke's Court submissions, para. 27(c).

[87] T (22 November 2022) 1-30, ll 5-23.

[88] Mr Rooke's Court submissions, para. 28.

[89] Mr Rooke's Court submissions, para. 29.

[90] The Regulator's Court submissions, para. 24.

[91] The Regulator's Court submissions, para. 12(a).

[92] The Regulator's Court submissions, para. 12(b).

[93] The Regulator's Court submissions, para. 12(c).

[94] The Regulator's Court submissions, para. 12(d).

[95] The Regulator's Court submissions, para. 12(e).

[96] The Regulator's Court submissions, para. 16.

[97] The Regulator's Court submissions, para. 16.

[98] The Regulator's Court submissions, para. 16.

[99] The Regulator's Court submissions, para. 19.

[100] The Regulator's Court submissions, para. 26.

[101] The Regulator's Court submissions, para. 44.

[102] The Regulator's Court submissions, paras. 37-38.

[104] T (22 November 2022) 1-41, ll 44-45.

[105] T(22 November 2022) 1-41, ll 41-43.

[106] T(22 November 2022) 1-47, ll 25-26.

[107] T(22 November 2022) 1-42, ll 16-47.

[108] T (22 November 2022) 1-43, l 41 to T 1-44, l 42.

[109] T (22 November 2022) 1-37, l 41 to T 1-38, l 8.

[110] Kelsey (n 66) [192]-[201].