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.