Onesteel Reinforcing Pty Ltd v Sutton

Statement of the case 7The underlying facts as found by the arbitrator were as follows: "1. Barry Kenneth Sutton (the applicant) commenced working with One Steel Reinforcing Pty Ltd (the first respondent) in August 2004 as a machine operator. Throughout the whole time of his employment he worked on a machine which made reinforced mesh. His duties included placing a big spool of wire onto the machine, welding wire onto the spool, pulling buckled sheets of mesh from the machine, cutting up such buckled sheets for scrap using bulk cutters and cleaning up millscale. The work was heavy. 2. The applicant says he first noticed back pain during the course of his employment with the first respondent in 2004, but kept working. He says he did inform his supervisor, Ly Quash about his back pain. 3. The applicant ceased work with the first respondent on 3 April 2008 when his services were terminated for misconduct. He commenced work with ECA Personnel Pty Ltd t/as Action Workforce (the second respondent) on 13 April 2008. He says the work was not heavy and involved tending a machine making aluminium cans for Fanta and Coke (soft drinks). He also worked on a fork lift and packing cans onto pallets. 4. In July or August 2008 the applicant developed sciatic pain in his right leg. His back pain had deteriorated a lot by about this time. He attended on his general practitioner, Dr Gibbes on 28 August 2008 and was referred for a CT scan on his back. The applicant subsequently came under the care of neuro-surgeon Dr Brindha Shivalingam who first saw him on 8 October 2008 on referral from Dr Rod Foley, another general practitioner in the same practice as Dr Gibbes (the Five Dock Medical Centre). 5. Prior to that date the applicant had ceased work with the second respondent. His last day at work was 15 September 2008 when he said he could no longer stand the pain. 6. Dr Shivalingam reviewed the CT scan of the applicant's back carried out on 28 August 2008, and ordered an MRI scan of the lumbosacral spine. He underwent that scan on 5 November 2008. 7. On 25 November 2008 Dr Shivalingam operated on the applicant's spine. He carried out an L5/S1 microdiscectomy, L4/5, L5/S1 and S1/S2 foraminotomy and L5, S1 and S2 rhizolysis. The applicant was discharged from hospital on 28 November 2008." 8ECA Personnel Pty Ltd t/as Action Workforce ("ECA"), the second respondent before the arbitrator and the Deputy President, was a labour hire firm. After his employment at Onesteel was terminated, it placed Mr Sutton with a company called Amcor where he worked as a machine operator. ECA remained his employer for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 (the "WIM Act"): Sch 1, cl 1. The arbitrator entered an award in favour of ECA. Although Mr Sutton did not appeal from that determination, and it does not appear Onesteel challenged that award either, ECA apparently was made a party to Onesteel's appeal to the Deputy President and actively participated in the process. It is not a party to the appeal. Mr Sutton did not suggest it should be.

Legislative framework 9To recover workers compensation from Onesteel the respondent was required to prove that he had received an injury to which his employment with that company was a substantial contributing factor: s 9, s 9A, Workers Compensation Act 1987. 10The respondent's proceedings to recover workers compensation were within the exclusive jurisdiction of the Workers Compensation Commission of New South Wales: s 105(1) of the WIM Act. Procedures before that body are be conducted with as little formality and technicality as the proper consideration of the matter permits and are not governed by the rules of evidence or matters of technicality or legal form: s 354, WIM Act. When informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the facts in issue and the issues in dispute, that evidence "based on speculation or unsubstantiated assumption is unacceptable" and that "unqualified opinions are unacceptable": Rule 15.2, Workers Compensation Commission Rules 2010. 11For the purpose of any proceedings, the Commission is to be constituted by an Arbitrator save on an appeal against an Arbitrator's decision: s 375, WIM Act. A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator: s 352(1), WIM Act. Such an appeal is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error; it is not a review or a new hearing: s 352(5), WIM Act. 12A party aggrieved by a decision of the Presidential member in point of law: may appeal this Court: s 353(1), WIM Act.

The arbitrator's determination 13The issues before the arbitrator were, relevantly, whether Mr Sutton suffered injury to his back arising out of or in the course of his employment with Onesteel and/or ECA and whether he suffered incapacity for work as a result of any such injury. 14All parties were legally represented. The evidence was given by either statement or expert report. There was no application to adduce oral evidence or to cross-examine any witness. 15Mr Sutton placed two statements before the arbitrator. The first, dated 5 October 2010, included a description of the work he performed for Onesteel which he described as "heavy". It also stated that he first noticed back pain in 2004 and informed his supervisor, Mr Quash. After referring to the fact that his employment with Onesteel was terminated on 8 April 2008 by reason of his alleged misconduct, the statement described his employment at Amcor, stating "[it] was not heavy and involved making aluminium cans" and "work[ing] on the forklift and packing cans onto pallets". 16In a supplementary statement dated 1 December 2010, Mr Sutton referred to his work at Amcor as not involving: "... heavy lifting, [but being] to bend over and pick up cans that had missed the imprint, or fell off the conveyor and these would be placed into a bigger type bin that I would lift and carry over to a vaccum [sic] type system that sucked the cans up and into another bin. My job was repetitive in that I was constantly picking up cans off the floor, bending, twisting, and turning and always hunched over whilst picking these up." 17Mr Sutton conceded that there was no suggestion he had reported his injury to his back whilst in Onesteel's employ, nor did he take any time off work for that problem: arbitrator's reasons (at [27]). He relied on the medical evidence as supporting his case that his employment with Onesteel was a substantial contributing factor to his back injury. He tendered his general practitioner's records and two expert reports, from Dr Bodel, an orthopaedic surgeon, dated 10 March 2010 and from Dr Matheson, a consultant neurosurgeon, dated 27 January 2010. Both recorded a history that Mr Sutton's Onesteel employment was of a heavy nature, while his employment at Amcor was light. Onesteel did not dispute that Mr Sutton's conditions of employment with it involved heavy work: arbitrator's reasons (at [66]). 18The general practitioner, Dr Gibbes, recorded on 28 August 2008: "Right sided hip and leg pain 'sciatica' for one month. Has never had this before. Some low back pain in past, but not now." 19Dr Bodel's history included the following: "OCCUPATIONAL HISTORY Mr Sutton indicates that he has worked for many years in fairly physical factory work. ... Between about the middle of 2004 and April 2008 he worked at OneSteel. He worked full time in the reinforcing mesh factory at Revesby. He states that he was dismissed from that company in April 2008. Soon after that he found agency work and he was sent to work at Amcor. He states that this was a much lighter work activity, working on a canning line. There was no significant bending, twisting or lifting. The cans were past [sic] before him at about waist level and he simply had to pick out the reject cans. He also worked in the palletiser and did some forklift driving ... HISTORY RELATING TO THE INJURY This gentleman indicates that he had suffered intermittent backache at work at OneSteel over the four years of his employment at that workplace. He associated this with the heavy nature of the work ..." (emphasis added) 20Dr Matheson's report recorded: "[Mr Sutton's] onset of low back pain occurred about five years ago while he was working for One Steel. This work was quite heavy work with a lot of lifting. He said he was getting back pain especially after lifting; however, he ignored it from a medical point of view and kept working. He then left that position to work for Amcor. This is an aluminium company and the work was much lighter. He was with One Steel from June 2004 to April 2008 and with Amcor from April 2008 to 16/06/08 [sic]. He left that job because while he was working there he got sciatica. He said the job was light and not particularly worrying him, but he was developing leg pain which was going from the hip down to the lateral ankle. He was also getting some tingling in all the toes. He has not been employed since September 2008. ... OPINION Mr Sutton has done well. The onset of his disc problems appear to be during One Steel employment, but eventually he went on to develop sciatica which I think would have been inevitable had he been employed or not. Thus, I am not sure that Amcor played much part in the matter, but that is debatable. The condition is present and it seems to relate to the onset of disc damage with One Steel ..." 21Onesteel had referred Mr Sutton for examination by a Dr Spittaler but did not tender any report produced consequent upon that referral. It conceded the arbitrator was entitled to draw an adverse inference arising from that failure. ECA did not tender any medical reports. 22Before the arbitrator, Onesteel raised an issue concerning Mr Sutton's credit. It submitted in substance that he could not be believed as to the circumstances in which he said he had left its employ or as to whether, during that employ, he had complained about his back to Mr Quash. Accordingly, it argued, "careful regard should be given to [his] credit" when looking at his other evidence: arbitrator's reasons (at [45]). 23As I have said, Mr Sutton's first statement stated that his employment was terminated for misconduct. No greater detail was given. In its documents, Onesteel asserted that his employment was terminated because he smoked marijuana at work. It relied on a file note and other business records contemporaneous to Mr Sutton's termination asserting that to be the case. The file note, which was signed by Mr Sutton, recorded that he had admitted smoking marijuana at work. Mr Sutton denied having done so in his supplementary statement. He said he had been cleaning out a smoking pipe (which he accepted he should not have had at work) when the Manager saw him. He accepted "it looked like [he] was smoking marijuana on the job" but he was not. 24After considering this evidence the arbitrator said (at [59] - [60]): "59 I find it difficult to accept that the first respondent [Onesteel] would have summarily terminated [Mr Sutton]'s employment because he was found with an empty tobacco pipe in his possession. Further, I find it difficult to accept that the applicant would have accepted his summary dismissal from employment for that reason. ... 60 ... [Mr Sutton] was thus well aware of occupational health and safety issues, and in my view, once he was caught smoking marijuana on the work premises realised he had no option but to accept the termination of his employment. I do not accept the applicant when he denies smoking marijuana on the job." 25The arbitrator then considered conflicting evidence given by Mr Sutton, who said that he had made a number of complaints about his back problems to his team leader, Mr Ly Quash, in 2006 and Mr Quash, who denied such assertions in a statement given in 2011. Although the arbitrator accepted it was possible that Mr Quash (who no longer worked for Onesteel in 2011) may have forgotten the complaints having regard to the lapse of time, he was (at [63]): "... inclined to accept what Mr Quash says in preference to what [Mr Sutton] says about his complaints of back pain" (emphasis added). The arbitrator did not explain his preference for Mr Quash's account on this issue. 26In his conclusions on the credit issue, the arbitrator said (at [64] - [65]): "64 I therefore think that there is an issue as to the credit of [Mr Sutton] and that therefore I must look to other evidence for corroboration of what the applicant alleges in respect of matters in dispute between him and [Onesteel] in particular ... Mr Petrie [counsel for Mr Sutton] submitted that: (a) the circumstances of [Mr Sutton's] dismissal from employment with [Onesteel] were irrelevant having regards to [Mr Sutton's] concession that this was for misconduct; and (b) attention should be paid to the contemporaneous evidence when looking at disputed matters of fact. 65 In particular Mr Petrie was referring to the onset of the applicant's serious back problem in July/August of 2008, and the clinical notes generated by the Five Dock Medical Practice (Doctors Kristin Gibbes and Rod Foley). In my view careful attention also needs to be paid to the histories given by [Mr Sutton] to his treating neurosurgeon, Dr Brinda Shivalingam from the time when the applicant first consulted this doctor on 8 October 2008." 27The arbitrator next addressed the question of Mr Sutton's conditions of employment at both Onesteel and Amcor. As I have said, Onesteel accepted that Mr Sutton's work with that company for almost four years involved heavy work. The arbitrator noted (at [66]) that "[t]his history of heavy employment with [Onesteel] was given both to Dr Matheson on 27 January 2010 and to Dr Bodel on 10 March 2010." 28Onesteel raised an issue as to the nature of Mr Sutton's employment with Amcor and in particular Mr Sutton's accounts of the work. It contended that, although the work was light, it involved "bending, twisting and turning and hunch[ing] over", and in substance, that that work could have been a, or the, cause of Mr Sutton's symptomatology. 29The arbitrator noted (at [70]) that Mr Sutton's job with Amcor involved much lighter work than that engaged in at Onesteel, and accepted that there was no heavy lifting involved. He continued (at [71]), stating: "[s]ignificantly in my view the applicant does not relate a frank incident involving his back or right left whilst at work with [Amcor]." He considered the reports of Dr Matheson and Dr Bodel with regards to the employment at Amcor. In the first, it was noted that "the [Amcor] job was light and not particularly worrying him, but he was developing leg pain which was going from the hip down to the lateral ankle". In the latter, Dr Bodel noted that the [Amcor] job involved "much lighter work activity, working on a canning line". 30The arbitrator said (at [75] - [77]): "75 The first respondent has submitted that, because the applicant's evidence as to his duties with the second respondent [Amcor] as related in his supplementary statement was very significantly different from that related both to Dr Matheson and Dr Bodel there is not a 'fair climate' for acceptance of the reports by these two doctors. Having regard to the Makita principles, it is said that the history recorded by doctors Matheson and Bodel does not provide such a climate for the acceptance of their opinions as expert. 76 I must have regard to all of the evidence in the proceeding to find if there is sufficient material to enable acceptance of the opinions of Dr Matheson and Dr Bodel. It is not necessary that all of the evidence be found in the reports themselves. This was made clear by the NSW Court of Appeal in ASIC v Rich [2005] NSWCA 152; 218 ALR 764, and more recently in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [70 - 78]. What is stated there by Beazley JA is that all of the facts on which an expert basis [sic, bases] his or her opinion need not appear in the expert's report. If there are facts in such a report which are assumed, providing there is other admissible evidence of such facts, the evidence of the expert may be accepted. 77 It was submitted by Mr Hickey on behalf of [Onesteel] that, because the facts as related by the applicant in his supplementary statement were so different from those given to Dr Matheson and Dr Bodel, the opinions of the two doctors in their reports as to the causation of the applicant's back injury should not be accepted. I do not necessarily accept that submission. Providing there is sufficient other evidence to satisfy me that: (a) the applicant's work over the nearly four years he worked for the first respondent was heavy (and of this there is no doubt), and (b) in comparison, the applicant's work during the period he worked for the second respondent was not heavy. I think that there is a 'fair climate' for the acceptance of the views of Dr Matheson and Dr Bodel. ... 78 Having regard to all the evidence hereinbefore related, and in particular to the type of employment the applicant engaged in with [Amcor], I find that that employment was not heavy. Although I have reservations about the applicant's credibility, I accept that his work with [Amcor] involved driving a forklift, packing cans onto pallets and checking cans as they passed by him on a 'decorator machine'. These were aluminium cans, and whilst he says he was constantly picking up these cans off the floor and bending, twisting and turning to do this, these aluminium soft drink cans were not heavy. Even when he had to lift a number of these cans into a 'bigger type bin', my finding is that that was not heavy lifting, and nothing like the employment that he engaged in with [Onesteel]." (emphasis added) 31With regards to the two doctors' reports, the arbitrator noted (at [79]): "79 Dr Matheson was well aware that the applicant's sciatic symptoms came on whilst in the employ of [Amcor], as was Dr Bodel. Dr Bodel says at the top of the second page of his report of 10 March 2010 'there was no significant bending, twisting or lifting.' This acknowledges that at least some of these activities occurred whilst the applicant was working on the canning line." (emphasis added) The arbitrator again acknowledged (at [80]) the need to scrutinise the contemporaneous evidence in light of his findings concerning Mr Sutton's credit. He referred again to the evidence of Dr Gibbes as well as that of Dr Shivalingam, both of which he said were consistent with Dr Matheson's opinion set out above (at [20]). 32The arbitrator also drew comfort from the fact that Onesteel had not tendered a report from Dr Spittaler and inferred that the contents of any such report would not have assisted its case. He drew another inference of which Onesteel rightly complained on appeal to the Deputy President. The latter accepted the validity of the complaint but concluded the inference was not essential to the arbitrator's reasoning and did not vitiate his conclusion: see DP decision (at [83]). That aspect of the arbitrator's reasons is not pursued in this Court. 33Finally, the arbitrator concluded (at [82]): "For the foregoing reasons, and not withstanding reservations I have about the credibility of the applicant, I find that he did in fact suffer injury to his back arising out of or in the course of his employment with the first respondent, and that employment was a substantial contributing factor to such injury. I also accept the submissions of both the first and second respondent that, notwithstanding the applicant's claim in the Application that injury was a disease of gradual onset, this is not the case. The injury was as a result of multiple traumata to the applicant's back over the period of his employment until its cessation on 3 April 2008."

The Presidential member's decision 34The appeal from the arbitrator's decision was determined on the papers: s 354(6), WIM Act. 35There were a number of issues before the Deputy President which he identified as raising errors of fact and law: DP decision (at [68]). Of these, Onesteel contended only two were relevant to the issues sought to be advanced in this Court, namely its complaints that the arbitrator erred, first, in determining that Mr Sutton received injury to his back arising out of or in the course of his employment with the appellant and secondly, in "failing to find that Mr Sutton's injury and resultant incapacity arose out of or was received in the course of his employment with [Amcor]." Before the Deputy President these were the first and fifth grounds of appeal. 36Onesteel complained that the arbitrator erred in accepting the opinions of Drs Matheson and Bodel in concluding that Mr Sutton's employment with Onesteel was a substantial contributing factor to his injury because those opinions "were based upon a history as to the nature of work with [Amcor] which was significantly different to those matters found in Mr Sutton's second statement": DP decision (at [69]). Mr Sutton contended that, notwithstanding the different descriptions of his work at Amcor in his first and second statements, there remained a significant distinction between the work he performed with Onesteel and that performed at Amcor such as entitled the arbitrator to conclude (at [70]) that "there was no heavy lifting involved in [the work with Amcor]". The Deputy President accepted that that the factual findings as to the nature of the work with each employer were open to the arbitrator on the evidence: DP decision (at [72]). It was significant to his reasoning (at [74]) that: "Notwithstanding the contrasting descriptions of the work performed it is clear that Dr Matheson's opinion concerning causation of discal damage is founded upon the requirement for heavy lifting on a repetitive basis in the course of his work with the appellant. It is this view which is the subject of agreement by Dr Bodel." 37He added (at [75]): "The totality of the evidence demonstrates that there was a stark difference between the work performed in each of Mr Sutton's jobs. The workplace assessment report dated 27 August 2008 in evidence which includes a table of physical activity makes it clear that the work performed with [Onesteel] involved the performance of physically demanding lifting activities as well as pushing and pulling the welding machine on its track and wire on a spool. 38The Deputy President concluded (at [76] - [79]) that "the discrepancy between Mr Sutton's description of his duties with [Amcor] and the history as recorded by the expert medical witnesses, in particular Dr Bodel, [did not have] the consequence that the opinions of those experts should have carried no weight in the Arbitrator's deliberations". Rather, bearing in mind that the "the hypothetical material put to the expert witnesses [does not have to be] precisely consonant with the material provided" and that the effect of discrepancies is one for the tribunal of fact (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (at 509) per Samuels JA) as well as that the arbitrator had acknowledged the discrepancy between the evidence, had addressed this argument and had correctly applied principle to determine the weight of the expert evidence, the Deputy President found (at [79]) that the arbitrator's finding on causation was open to him. 39As to the fifth ground of appeal the Deputy President found (at [86]): "86 ... There can be no doubt on the evidence that Mr Sutton received a significant discal injury. I have earlier affirmed the Arbitrator's findings as to causation of that injury, being the result of heavy lifting in the course of his employment with the appellant. The arguments raised have been addressed between [68] and [78] above. Given my conclusion as to the correctness of the Arbitrator's finding as to causation of injury it follows that this ground relied upon by the appellant must fail." Paragraphs [68] - [78] were those in which the Deputy President had considered the first ground of appeal. 40The Deputy President rejected Onesteel's other grounds of appeal in a manner not challenged in this Court, dismissed the appeal and confirmed the arbitrator's determination.

Issues on appeal 41There are three grounds of appeal, but Onesteel accepts they may be distilled into two complaints of relevant error. The first is a no evidence point. In this respect, Onesteel complains that the Deputy President erred in law in that he ought to have found there was no evidence to support the arbitrator's finding that the respondent suffered injury to his back in the course of his employment with Onesteel. 42The second point is a misdirection point. Onesteel complains that the Deputy President erred in law in failing to conclude that the arbitrator defined otherwise than in accordance with law the ultimate question of fact he had to answer. This complaint arises from Onesteel's assertion that the arbitrator incorrectly defined the question of fact he had to answer as being in which one of his two employments Mr Sutton suffered injury to his back, rather than whether he suffered injury to his back in the course of his employment with either employer.

Onesteel's submissions 43Onesteel's written submissions put its principal argument on appeal with disarming simplicity. It contended that by rejecting Mr Sutton's evidence and preferring that of Mr Quash as to whether or not Mr Sutton had complained about back pain during the course of his Onesteel employment, there was no evidence that Mr Sutton's "ongoing heavy work [with Onesteel] caused back injury at all". 44Next, the written submissions argued that it was not open to the arbitrator to seek to "overcome [that] evidential difficulty" by relying upon the expert opinions. This was because those specialist opinions were founded upon Mr Sutton having given an accurate history of suffering back pain in the course of his Onesteel employment. Once Mr Sutton's evidence about that was rejected, the whole basis of the expert evidence was undermined. Thirdly, putting the same point another way, the written submissions argued, relying upon Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 (at 846), that rejection of Mr Sutton's evidence required the rejection of the expert reports because the case each expert "supposed" was not "sufficiently like the one under consideration to render the opinion of the expert of any value". It was argued that because, in the circumstances, there was only one answer to a question posed in terms of Paric, it was an error of law for the arbitrator and the Deputy President to treat it as a question upon which minds may reasonably differ and therefore as a question of fact. Next, it was contended, that even if the arbitrator's conclusion was properly characterised as an error of fact, it was an error of law for the Deputy President not to correct it, given his legal obligations under s 352 of the WIM Act. 45Insofar as the misdirection point was concerned, Onesteel's written submissions contended that it was clear from the relevant passages of both the arbitrator's determination and the Deputy President's reasons that each approached the ultimate question by asking which of either of the employment with Onesteel or Amcor caused Mr Sutton's back injury and incapacity. It was submitted that this was a clear error of law by reference to authorities to the effect that "in common law context ... an injury or incapacity may be attributable to more than one cause, in the legal sense, operating concurrently": Bushby v Morris [1980] 1 NSWLR 81 (at 87) (Privy Council); Morris v George & Glenmore Pty Ltd [1977] 2 NSWLR 552 (at 560) per Moffit P; (at 580 - 581) per Glass JA. 46It is not apparent that Onesteel's case on the no evidence ground was conducted before the Deputy President in the manner set out in its written submissions. The Deputy President did not consider such a case. Rather, the no evidence complaint as he appeared to understand it rested on Onesteel's complaint about the discrepancy between the history Mr Sutton gave Dr Bodel, in particular, about his work at Amcor, compared to that which appeared in his supplementary statement. 47In oral submissions, Mr R Sheldon, who appeared for Onesteel, appeared to embrace the written submissions (of which he was not the author) by submitting that that part of Mr Sutton's evidence before the arbitrator in which he recounted that he had suffered back pain during the course of his Onesteel employment and that he had complained about that pain to Mr Quash, were inextricably linked such that the rejection of his evidence of complaint meant that the arbitrator had rejected Mr Sutton's evidence that he had suffered back pain during that employment. He accepted that the arbitrator had not explicitly made such a finding, but observed that, equally, the arbitrator had not explicitly found that Mr Sutton did suffer pain during that period. 48While Mr Sheldon accepted that heavy lifting work for a number of years could be a substantial contributing factor to the onset of a back injury for a person with Mr Sutton's underlying spinal pathology, he contended that both medical experts assumed Mr Sutton had experienced pain during the course of his employment as a foundation for their causation opinions. 49However Mr Sheldon also expanded the written submissions to embrace the discrepancy issue with which the Deputy President dealt. He complained that because Dr Bodel proceeded on a history given by Mr Sutton that there was no significant, bending, twisting or lifting in the Amcor employment whereas the contrary was the case, his opinion should not have been given any weight. 50Mr Sheldon referred the Court, in this respect to Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (at [80]), where I held (with Mason P and Beazley JA's agreement) in relation to an appeal from a decision of a Compensation Court judge, that the absence of any identified factual basis for an opinion expressed in medical reports that a worker's work could either possibly be a cause of, or was a substantial contributing factor, to a worker's injury, the reports were inadmissible or, if admitted, carried no weight. 51Mr Sheldon also referred to Southwest Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421 (at [127]) where I set out the substance of r 70 of the Workers Compensation Commission Rules 2003 (which for all intents and purposes was in the same terms as r 15.2 set out above at [10]) and commented (at [128]) that that rule broadly "reflect[ed] fundamental principles of the common law concerning the admissibility of evidence". 52Turning to the misdirection ground, Mr Sheldon accepted that the arbitrator had posed the correct question (at 15) ("whether the applicant suffered injury to his back arising out of or in the course of his employment with the first and/or second respondent"), but said he had not answered it. Rather, he contended the arbitrator (not corrected by the Deputy President) had reversed the inquiry as being, given the injury, that the only question was in whose employment it was sustained. 53Mr Sheldon submitted that by limiting himself to determining which of his work at Onesteel or Amcor caused the injury, by reference only to the heaviness of Mr Sutton's work, it was clear first, that the arbitrator was not asking a question as to whether the worker suffered injury in the course of his employment with either employer, and secondly, that the history or the nature of the work would be an essential integer in forming an opinion about the likely significance of each period of employment.

Mr Sutton's submissions 54Mr Sutton submitted that the Deputy President analysed the arbitrator's reasons as demonstrating that while the latter rejected some of Mr Sutton's evidence, it was not to be rejected completely and that it could be and was accepted in some respects. He contended that the Deputy President was entitled to conclude that there was evidence for the arbitrator's finding as to the relationship between his injury and his Onesteel employment having regard to the facts that he was a manual worker in his late forties, he was employed by Onesteel to do heavy work for a period of four years, there was no suggestion of injury from any source other than work, the injury to his spine was consistent with heavy work and all the expert evidence supported the proposition that his Onesteel employment was a substantial contributing factor to his injury. He emphasised that although the arbitrator made adverse comments as to his credit on two issues, there was no suggestion that he had fabricated his injury. 55Insofar as the misdirection ground of appeal is concerned, Mr Sutton submitted that there was no obligation upon the arbitrator to decide the questions of whether particular employment had made a substantial contribution to his injury in the manner for which Onesteel contended.

Consideration 56A "no evidence ground" of appeal may be characterised as "a decision of a question with respect to a matter of law" (Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390 (at [59]) per French CJ) and a "question of law": ibid (at [90] - [91]) per Hayne, Heydon, Crennan and Kiefel JJ; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (at 355 - 356) per Mason CJ (Brennan J agreeing), (at 367 - 368) per Deane J, (at 387) per Toohey and Gaudron JJ. 57Accordingly, If the Deputy President erred in determining that the arbitrator did not err in concluding Mr Sutton's Onesteel employment was a substantial contributing factor to his injury, his conclusion can be reviewed in this Court as long as the error vitiated, that is to say, was operative in, the ultimate decision: see Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 (at 153, 155 and 157) per Glass JA with whom Samuels JA agreed; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 (at [92]) per Bathurst CJ (McColl JA agreeing). 58Onesteel's criticism of the Deputy President's decision appeared to approach the question of the material to which the arbitrator was entitled to have regard when determining the issue of causation as if it was strictly governed by the rules of evidence. That, as I have already said, is not the case. To reiterate, procedures before the Commission are not governed by the rules of evidence or matters of technicality or legal form: s 354, WIM Act. 59It might be accepted that provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (at [49]) per Gleeson CJ and McHugh J; Southwest Sydney Area Health Service v Edmonds (at [88])) and, further, r 15.2 of the Workers Compensation Commission Rules recognises that "evidence before the Commission must be 'logical and probative' and 'unqualified opinions are unacceptable' ": Southwest Sydney Area Health Service v Edmonds (at [131]). It is nevertheless necessary to be alert to the fact that "the rules of evidence, excluded by statute, [should not be allowed] to 'creep back through a domestic procedural rule' ": Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (at [17]) per French CJ. 60Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not": Southwest Sydney Area Health Service v Edmonds (at [129]) referring to Smith v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 (at [32]) per Mason P (Handley JA and Campbell J agreeing). 61It is sufficient to frame Onesteel's complaint that the expert evidence ought to have been rejected, or given no weight, by reference to Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; (2011) 80 NSWLR 43 where Beazley JA (Giles and Tobias JJA agreeing) said (at [82] - [83]): "82 Although not bound by the rules of evidence, there can be no doubt that the [Workers Compensation] Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone. 83 In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA." 62Turning to Onesteel's submission, the underlying premise of the way Onesteel first put its no evidence ground of appeal was that there was an inexplicable link between Mr Sutton's assertion in his first statement that he had complained to Mr Quash about the occurrence of low back pain during his Onesteel employment and the fact that he had suffered such pain. As I have said, it is not apparent that the no evidence ground was put in this manner in the appeal to the Deputy President rather than the complaint on that appeal being about the discrepancy between Mr Sutton's description of his work at Amcor and that recounted to Dr Bodel with which I deal below and describe as the "discrepancy no evidence ground". 63Even assuming the no evidence ground was put to the Deputy President in the manner for which Onesteel now contends, it can, in my view, be given short shrift. First, I do not read Mr Sutton's statement about his suffering of pain while in Onesteel's employment and his assertion that he complained about that pain as being inextricably linked as Onesteel contends. Further, whether or not the statement was to be read as Onesteel contends was a matter for the arbitrator. It is apparent, in my view, from the arbitrator's acceptance that, notwithstanding his preference for Mr Quash's evidence, he could look elsewhere for corroboration of Mr Sutton's evidence, that he did not read the statement in the manner for which Onesteel contends. This is also apparent from the fact that he dealt explicitly with the aspects of Mr Sutton's evidence which he rejected. Had he rejected Mr Sutton's evidence that he suffered pain during his Onesteel employ, it could be expected that he expressed that finding with the same degree of precision. 64Both expert reports depended upon the proposition, in part, that Mr Sutton suffered back pain in the course of his Onesteel employment. In the course of scrutinising the contemporaneous evidence, the arbitrator accepted (at [80]) Dr Matheson's opinion that "the onset of [Mr Sutton's] disc problems appeared to be during Onesteel employment ... ". It is apparent from that conclusion that the arbitrator accepted the history Mr Sutton gave Dr Matheson, namely that he had suffered pain during that employment. It was open to the arbitrator to accept Mr Sutton's evidence in this respect notwithstanding his adverse conclusions concerning his credit in the two respects earlier identified. In my view, although the arbitrator did not expressly find that Mr Sutton suffered pain during his Onesteel employment, it was implicit in his causation finding that he did so. The first way Onesteel puts its no evidence ground should be rejected. 65I turn to the discrepancy no evidence ground. 66In Paric v John Holland Constructions Pty Ltd (at 846) the Court (Mason CJ, Wilson, Brennan, Deane and Dawson JJ) said: "It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense." (emphasis added) 67Beazley JA discussed a similar issue in Hancock v East Coast Timber Products Pty Ltd (at [70] - [78]), a matter to which the arbitrator referred (at [76]). In that case the employee claimed to have injured his knee when he fell whilst stacking timber in the course of his employment. There were no witnesses to his fall and he did not report the incident. He was off work for a few days after the incident but thereafter continued to work for another two and a half years, save for various periods of sick leave, before remaining permanently off work on sick leave. The employer terminated the employee's employment six months later. The employee claimed that he suffered from permanent incapacity as a result of the injury sustained in the work incident. The employee had also suffered pain in his knee after his fall in a number of non-work related incidents. An arbitrator found in his favour that his employment was a substantial contributing factor to his knee injury and awarded him weekly compensation. 68The reports of the employee's treating orthopaedic surgeon, Dr Summersell, did not refer to the subsequent non-work related incidents. Beazley JA held (at [88]) that that did not amount to a failure to satisfy the requirement that an expert should "identif[y] the facts and reasoning process which he or she asserts justify the opinion": Hancock v East Coast Timber Products Pty Ltd (at [77]) referring to ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764 (at [105]) per Spigelman CJ. In her Honour's view "[t]he extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports". 69In my view the Deputy President did not err in point of law in rejecting the discrepancy no evidence ground. It was manifest that there was a discrepancy between the description of the work Mr Sutton undertook at Amcor as set out in Dr Bodel's report and that set out in Mr Sutton's supplementary statement. The arbitrator expressly dealt with the issue and concluded, notwithstanding that discrepancy, that Mr Sutton had established the Onesteel employment was a substantial contributing factor to his injury. It was a question of fact whether the case the expert hypothesised was sufficiently like that proven so as to render the experts' opinions of any value: Paric v John Holland Constructions Pty Ltd (at 846). While it was open to the Deputy President to correct errors of fact, the appeal to this Court is more confined. That, no doubt is why Onesteel sought to frame its discrepancy complaint as a no evidence ground of appeal. 70The arbitrator was alert to the discrepancy issue. Moreover, because of the reservations he had about Mr Sutton's credit, he was also conscious of the need, generally, to look to objective material to determine whether Mr Sutton's employment at Onesteel was a substantial contributing factor to his injury. As the Deputy President (and the arbitrator) concluded, both Dr Matheson and Dr Bodel's opinions concerning the causation of Mr Sutton's injury were based, in part, on the proposition that he had undertaken heavy lifting on a repetitive basis in the course of his work. That condition was satisfied in the case of his Onesteel employment. It was not satisfied in the case of his Amcor employment. 71The fact that Mr Sutton's supplementary statement identified for the first time that during his Amcor employment he had engaged in picking aluminium cans off the floor and bending, twisting and turning to do this, did not undermine the experts' opinions. As the Deputy President concluded (at [72] - [75]) it was open to the arbitrator to find (at [77] - [78]) that the Amcor work was not heavy and did not satisfy the precondition of triggering Mr Sutton's back complaints. Moreover, as the arbitrator pointed out (at [79]), the fact that Dr Bodel said "there was no significant bending, twisting or lifting" in the Amcor employment "acknowledge[d] that at least some of these activities occurred whilst [Mr Sutton] was working on the canning line." 72I would reject the discrepancy no evidence ground of appeal. 73The misdirection ground of appeal was, in my view, misconceived. There is no doubt it was open to the arbitrator to find that Mr Sutton's injury could be attributable to more than one employer. However, in this case, it was also open to the arbitrator to conclude that, having rejected the proposition that Mr Sutton's work at Amcor involved heavy lifting, the evidence did not support any causal nexus between that employment and Mr Sutton's injury. 74I have read, and agree with, Allsop P and Basten JA's reasons. 75BASTEN JA: As McColl JA has explained, the central argument for the appellant relied on the fact that the causal connection between the respondent's injury and his employment with the appellant depended on the opinions of Dr Matheson and Dr Bodel. That evidence, the submission proceeded, was not properly available to support the inference of causal connection because the histories given to the two medical practitioners differed from the evidence accepted by the Arbitrator (as to the lack of symptoms whilst working for the appellant) or the evidence of the respondent in his supplementary statement (as to the conditions of employment with his second employer at Amcor). It followed, the appellant submitted, that there was "no evidence" to support a causal link with the employment of the respondent by the appellant and the Arbitrator and Deputy President therefore erred in point of law by finding such a link: see Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [91] (Hayne, Heydon, Crennan and Kiefel JJ). 76The appellant sought support for this contention in two judgments of this Court. The earlier was Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271. That case, however, involved an appeal from the Compensation Court which, unless the Court made a dispensing order, applied the rules of evidence: Compensation Court Act 1984 (NSW) (now repealed), s 24(1). Accordingly, the comments in that case applying the test as to the admissibility of expert opinion enunciated in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, were uncontentious but not directly relevant. 77The later case was South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421, being an appeal from a Deputy President of the Workers Compensation Commission, pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act"), thus addressing the same statutory regime as the present appeal. In order to understand the passages in the judgment in that case relied upon by the appellant, it is necessary to refer to the statutory scheme under which the Commission operates. That is identified in s 354 of the Workplace Injury Act in the following terms: "354 Procedure before Commission (1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits. (3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties .... ... (6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing. (7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate." 78The appellant drew the Court's attention to r 15.2 of the Workers Compensation Commission Rules 2010 (NSW), which was in terms identical to r 70 of the Workers Compensation Commission Rules 2003 (NSW) in force at the time of Edmonds. The rule provides: "15.2 Principles of procedure When informing itself on any matter, the Commission is to bear in mind the following principles: (a) evidence should be logical and probative, (b) evidence should be relevant to the facts in issue and the issues in dispute, (c) evidence based on speculation or unsubstantiated assumptions is unacceptable, (d) unqualified opinions are unacceptable." 79Rules of the Commission are made by the Minister: Workplace Injury Act, s 364. They do not purport to, and should not be construed as, fettering the broad powers conferred on the Commission by s 354. Rule 15.2 is exhortatory in form and it is doubtful whether it imposes any legal constraint on the powers of the Commission when "informing itself on any matter". The rule certainly could not, and does not purport to, impose rules governing the admissibility of evidence. To do so would be directly inconsistent with the express language of s 354. If the rule does not impose a legal constraint on the power of the Commission, in respect of the inferences the Commission may draw from the material before it, non-compliance with the rule would not constitute an erroneous decision in point of law. 80In Edmonds the Court said of the predecessor to r 15.2 that it "broadly reflects fundamental principles of the common law concerning admissibility of evidence": at [128]. That language falls well short of suggesting, as the appellant appeared to imply, that an expert opinion which would be inadmissible at common law (or under the Evidence Act 1995 (NSW)) would constitute "no evidence" for the purposes of providing a ground of appeal. 81Edmonds also referred to a statement by Mason P, in respect of another jurisdiction where the rules of evidence did not apply, to the effect that "an error of law based on absence of evidence must mean, for the Tribunal, absence of material, whether strictly admissible according to the rules of evidence or not": Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [32]. The insertion of the word "strictly" in this proposition is apt to mislead: compliance with the rules of evidence is not a pre-condition to consideration of material by the Commission. 82The reasoning in Edmonds continued by reference to the discussion in Hevi Lift: at [130]-[131]. As is made clear at the conclusion of that discussion, the reasoning in Hevi Lift was not directly applicable, the Commission not being bound to apply the rules of evidence. There is no warrant, however, in the statute or the general law relating to procedural fairness, to import into the legally mandated procedures of the Commission, limitations on the material which can be considered, derived from the rules of evidence. 83Once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself. Indeed, once inadmissible evidence is before a court without objection being taken, the question for the court is merely one of weight: Makita at [86], last sentence. 84Different aspects of Edmonds have been applied in subsequent cases, but none adopts the approach sought to be relied on by the appellant. Thus, in AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; 163 LGERA 245 the Court considered an appeal from a valuation judgment in the Land and Environment Court. Hodgson JA (Bell JA and Gyles AJA relevantly agreeing) noted that reliance had been placed on Edmonds for the proposition that "although the Land and Environment Court was not bound by the rules of evidence..., still there had to be material capable of rationally supporting a conclusion": at [37]. Hodgson JA continued at [42]: "In this case, there plainly was some such material. There was Mr Hack's evidence as to increased patronage, and Mr Wood's evidence that this meant increased value in the order of five to ten per cent. Mr Wood did not back this up with any discussion of valuation principle or other reasoning, and this impacts on the weight and cogency of his evidence: Makita...; ASIC v Rich [2005] NSWCA 152; (2005) 218 ALR 764 at [106]-[110]. However, Mr Wood was an expert valuer, and in my opinion his opinion was admissible; and although the weight of the evidence may be considered slight because of the lack of reasons, it was nevertheless material capable of rationally supporting a conclusion." 85In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 Beazley JA, noting that the Commission was not bound by the rules of evidence and referring to s 354 and r 15.2, cited a passage from Edmonds at [127]: Hancock at [79]-[81]. Beazley JA then stated: "[82] Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. .... [83] In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA." 86In the present case, the weight to be given to the medical opinions was self-evidently affected by the factual assumptions on which they were based. However, the opinions clearly linked the injury with heavy lifting and it was not in doubt that the work undertaken by the respondent in the course of his employment with the appellant involved heavy lifting over a number of years. It could not be said that there was no material capable of supporting the inference that the injury was suffered in the course of that employment. 87The limits on judicial review of findings of primary fact generally preclude review directed to the assessment of evidence which does not otherwise demonstrate legal error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 359-360 (Mason CJ); Sinclair v Mining Warden at Maryborough [1975] HCA 17; 132 CLR 473 at 481 (Barwick CJ) and 483 (Gibbs J). A similar approach is required in relation to appeals limited to decisions which are erroneous in point of law. There being material before the Arbitrator capable of supporting the inference drawn by him, there was no decision of the Arbitrator, or derivatively of the Deputy President on appeal from the Arbitrator, which was erroneous in point of law. 88For these reasons, and the additional observations of the President, the orders made at the hearing, dismissing the appeal and requiring the applicant to pay the respondent's costs, were appropriate.

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