This man was seen [by me] at the request of his local medical officer ..

He stated that he had had an accident at work in May 1980 (sic) when he was run over by a steer. He suffered concussion and hurt his right knee at the time and was off work for a few weeks.

Following this he has had pain on both sides of the right patella and has noted that the fairly constant pain is accompanied by clicks in the knee.

On examination I noted that he had some pain on compressing the right patella from above and that the right knee, and in fact the left to a lesser extent, had a fair amount of crepitations on movement. All his ligaments appeared to be intact.

Some X-rays I saw, including an arthrogram were all normal.

I consider that he has chondromalacia patellae which can occur following such an accident. At this stage I feel that physiotherapy in the form of quadriceps strengthening exercises should be employed. It may be necessary, if he experiences sufficient disabling pain in spite of advanced muscle development, to consider surgery (emphasis added).[12]

1. In the context of his report, I understood Dr White's statement about "a fair amount of crepitations on movement" of the right and left knees to be him hearing noises on moving the applicant's knees.
2. Chondromalacia patellae is, as I understand it, a condition involving the softening and breakdown of cartilage under the kneecap which can lead to pain.
3. In a report dated 3 November 1980, the applicant's general practitioner, Dr Castagna, wrote to the applicant's employer as follows:

I was first consulted by this patient on the 1st May, 1979 after he had been knocked over by a bullock and had injured his right knee. his initial complaint was mainly of headaches, but over the ensuing months he began to be plagued by ever increasing knee pain.

I reviewed him in August, 1980 and he stated that the knee had gradually got worse and that he had also had "cracking" knees. On examination he had crepitation in his right knee and I ordered repeat knee X-ray and Arthrogram of that knee. The results of both were normal failing to show any bony or meniscus injury.

A provisional diagnosis of chondromalacia of patellae was made and he was commenced on Butazolidin, which he states eases his symptoms.

He has been reviewed by Dr. David White who agrees with the diagnosis.[13]

1. On 12 February 1981, the applicant suffered a further injury to his right knee in the course of his employment when kicked by a calf. The injury report states:

Whilst inspection (sic) calves and vealers at ... he was kicked on the right knee by a vealer.[14]

1. In his witness statement dated 8 July 2019, the applicant described the further accident on 12 February 1981 as follows:

Early one morning while working .. on 12 February 1981 I was inspecting the calves at the abattoir. I was kicked in the right knee by a calf. I do not recall having any time off for that injury. I was still having the pain and discomfort around my right knee at that time.[15]

1. Whilst there were initial indications of recovery, the applicant's right knee continued to cause him pain notwithstanding medical intervention. This led Dr Castagna to refer the applicant to another orthopaedic surgeon, Dr Ashwell, for review. I did not have the letter of referral, but it was likely sent in late 1985 or early 1986.
2. In a report dated 31 January 1986, Dr Ashwell wrote to Dr Castagna about his examination of the applicant's right knee. Dr Ashwell relevantly wrote:

[Following the injury], his discomfort gradually increased in frequency and severity and in 1980 he underwent arthrogram of his knee which was apparently normal. He is now moderately disabled with pain occurring anteriorly in his knee constantly and this is worse with walking up steps, kneeling or walking uphill more than 50 yards. He also complained that his knee was stiffening and occasional swelling of his knee with activity. There has not been any locking or giving way. He takes Voltaren and digesic tablets for the pain ..

On examination of his right knee there is no evidence of wasting of the quadriceps .. and there is no evidence of effusion. He has tenderness on the under surface of the patella and over the fatpad. .. He had full range of knee movement with minimal discomfort. .. There was no evidence of a meniscal lesion.

He has anterior knee pain in his right knee which is most likely due to retropatella chondritis as a result of the injury in May 1979. I have suggested that he undergo an EUA and arthroscopy and patella shave to try and ease his discomfort and I will organise this in the near future (emphasis added).[16]

1. On 11 February 1986, Dr Ashwell performed an arthroscopy on the applicant's right knee (the first arthroscopy). In his report dated 11 February 1986, Dr Ashwell wrote:

I performed an EUA and arthroscopy on this man's right knee today. He had an area of degenerative cartilage on the medial facet of the patella which I trimmed and drilled. The purpose of this is to allow a new growth of fibrocartilage. The remainder of his knee joint was essentially normal (emphasis added).[17]

1. On 7 January 1988, Dr Ashwell again saw the applicant in response to the applicant experiencing right shoulder/neck pain and ongoing discomfort in his right knee. As I understood it, this occurred on referral from Dr Castagna. In his report to Dr Castagna, Dr Ashwell wrote about the applicant's shoulder and neck and the treatment provided, but there is no mention of anything seen or done or recommended in relation to the applicant's right knee. The only comment about the right knee was as follows:

His right knee discomfort is still troubling him intermittently but he can cope provided he stays off hard surfaces.[18]

1. On 3 March 1988, Dr Ashwell again saw the applicant. Dr Ashwell reported that since the last review the applicant "has been in hospital with a bleeding peptic ulcer." Dr Ashwell reported on improvement of the applicant's right shoulder discomfort. The only comment about the applicant's right knee was as follows:

His left wrist has also been sore recently and his knees have been aching.[19]

1. Dr Ashwell recommended physiotherapy in relation to the applicant's shoulder, but made no mention of anything seen or done or recommended in relation to the applicant's right knee.
2. The applicant submitted I should find the peptic ulcer was caused (at least in part) "due to the strong analgesics [the applicant] was taking for his right knee injury."[20] I make no such finding. The only mention of medication of any kind in Dr Ashwell's report is the applicant treating himself with Voltaren tablets, as I understood it to help with his back pain, five weeks prior to onset of the ulcer.
3. That said, I accept the applicant was taking analgesics to assist with the discomfort to his right knee but there is no evidence connecting the analgesics with the ulcer.
4. In a report to the respondent dated 31 October 1989, Dr Castagna "certified" that the applicant was still affected as a result of the injury on 1 May 1979. Dr Castagna wrote:

Mr Simeoni sustained an injury causing swelling, bruising and concussion of his right knee, which resulted in Retro-patella Chondritis.

It has been necessary for Mr Simeoni to take strong analgesia to relieve his pain and this has been the principle form of treatment over the last three years.

Mr Simeoni was seen on the 25.07.89 after a particularly severe flare up of his knee condition. This was not preceded by any trauma therefore there has been no aggravation of the original injury.

At this time he was prescribed further analgesia and treatment with non-steroidal anti-inflammatory agents such as Voltaren along with heat and rest for the joint.

There has been marginal relief since this treatment, but no real improvement of his condition.[21]

1. On 18 January 1990, Dr Ashwell again reviewed the applicant's right knee. In his report of that date, Dr Ashwell wrote:

This man returned today for review of his right knee. He is still having discomfort at the front of his knee and particularly if he sits in the one position or gets up from the crouching position. He always has a dull ache in his knee and on examination he had tenderness around the patello-femoral joint with no muscle wasting and full movement. He has recurrence of his right anterior knee pain due to chondromalacia patellae and I have recommended and (sic) EUA and arthroscopy and lateral release (emphasis added).[22]

1. On 30 March 1990, Dr Ashwell performed a second arthroscopy on the applicant's right knee (the second arthroscopy). In his report of that date, Dr Ashwell wrote:

I performed and (sic) EUA and arthroscopy on this man's right knee today with chondrectomy of the under surface of the patella, a lateral release and division of a synovial suprapatella plica. He had partial almost complete chondral damage on the lateral facet of the patella which required trimming. There was no exposed bone. There was a synovial suprapatella plica extending half way across the knee joint which I divided. A lateral release was performed with drain inserted for 4 hours. There was a small frayed area on the inner edge of the posterior horn medial meniscus which I trimmed.[23]

1. The applicant gave evidence, which I accept, about the ongoing problems with his right knee between May and June 1990:

By late May 1990 I had only been back at work for a few days and I was already finding it difficult to cope. My right knee symptoms were persisting, and the swelling was re-occurring when I was standing for prolonged periods whilst at work. I noticed that my knee right (sic) was not as stable after the surgery. The stability of the knee was an ongoing problem post this surgery.

Dr Ashwell around the end of May 1990 recommended that I undergo physio and that I take a month off work (emphasis added).[24]

1. The applicant's evidence is consistent with a report dated 24 May 1990 from Dr Ashwell to Dr Castagna in which Dr Ashwell states:

This man's right knee symptoms are persisting with a limp and swelling with prolonged standing at the end of the day's work. He has only been back at work 3 days and already found difficulty coping.

On examination there was no effusion but he had slight loss of full nerve. I have referred him back for physiotherapy and advised him to take at least a month off work.[25]

1. On 21 June 1990, Dr Ashwell again saw the applicant regarding his right knee. In his report to Dr Castagna of that date, Dr Ashwell reported the applicant was still experiencing discomfort in his knee although "discomfort has been improved with patella taping". Dr Ashwell recommended ongoing physiotherapy and opined the applicant could return to light duties in about 2 weeks' time at about 3 hours a day for a further 4 weeks.[26]
2. On 5 August 1991, Dr Prochazka, a senior medical officer with the applicant's employer, wrote a report regarding the applicant's fitness for duty. Regarding his right knee, Dr Prochazka wrote:

In 1979 injured by a runaway steer on the slaughter floor. He was concussed, bruised and right knee was injured. The knee ached and became stiff (no locking or giving way).

Clinically some loss of muscle definition in the right knee with 1-2 cm loss of circumference. There is full range of movement, no effusion (today), knee is stable.

Mr Simeoni cannot run, he has difficulties walking up steps or inclines or standing on cold concrete floors for lengthy periods of time.

He is fit to continue at present with his duties. He has symptoms with most activities but copes. He cannot be expected to continue doing his current duties should his condition deteriorate. I cannot forecast with confidence that he will be fit for more than 6 months. He will eventually need to be re-trained into a largely sedentary occupation. I doubt that surgical intervention will alter his work capacity, as far as meat inspection duties are concerned (emphasis added)[27]

1. On 27 March 1992, the applicant accepted a voluntary redundancy and left his employment with the Commonwealth.[28]
2. The applicant gave evidence that he accepted the voluntary redundancy, "due to the issues with my right knee and the view of the doctor that I would not be able to manage full-time duties long-term".[29]
3. The applicant gave evidence, which I accept, that after leaving his employment with the Commonwealth, he attempted to manage his farm but was "unable to be very hands-on and most of the heavy work or physical work was contracted out to other people." The applicant stated his capacity "to do any meaningful work was restricted heavily due to my knee injury" and that he was "not able to make a personal income in comparison to my income as a full-time meat inspector."[30]
4. The applicant gave evidence, which I accept, that in 2002 he returned to work as a meat inspector on a relieving contract basis but found that if he did more than one or two days in a row "it significantly aggravated the pain and discomfort and swelling in my knee". The applicant stated he worked for a few hours, 3 or 4 days a week if work was available, and did this work until 2011.[31]
5. On 20 September 2005, at the request of his new general practitioner, Dr Currie, the applicant underwent an x-ray of his right knee. The report of that date from the radiologist, Dr Dyer, to Dr Currie following his examination of the x-ray states:

There is mild osteoarthritis of the right knee joint, especially involving the medial tibiofemoral compartment.[32]

1. As best I can ascertain, this is the earliest record of osteoarthritis in the applicant's right knee.
2. In November 2005, at the request of his new general practitioner, Dr Currie, the applicant saw Dr Pearce, another orthopaedic surgeon, in relation to the ongoing concerns with his right knee.
3. By letter dated 14 November 2005, Dr Pearce wrote to the applicant's general practitioner, Dr Bird,[33] regarding his examination that day of the applicant's right knee and left foot. Regarding the right knee, Dr Pearce wrote:

He has recently had a lot of medial sided knee pain and tenderness. There is no specific injury but he has had problems in the past. He is a very active farm worker. Clinically he shows some evidence suggestive of a medial meniscal tear. I think it is only reasonable, given his level of symptoms, to offer to perform an arthroscopy (emphasis added).[34]

1. I was not taken to any medical record, but accept the applicant's evidence that on 29 November 2005, Dr Pearce performed an arthroscopy on the applicant's right knee (the third arthroscopy).[35]
2. By letter dated 12 December 2005, Dr Pearce wrote to Dr Bird regarding the outcome of the third arthroscopy. He wrote:

This pleasant fellow underwent a knee arthroscopy recently. We noted a fair degree of degenerative changes, particularly of his medial femoral condyle. There was also a degenerative tear of his medial meniscus. These areas were debrided.

John's knee is likely to cause further problems in the future. He has osteoarthritis particularly affecting the medial compartment. It is possible that he would benefit from a unicompartmental knee replacement in the future to keep him mobile (emphasis added).[36]

1. In February 2006, the applicant claimed compensation for the cost of the third arthroscopy. This led to the respondent arranging for Dr Bhattacharyya, another orthopaedic surgeon, to examine the applicant's right knee. The applicant attended an appointment with Dr Bhattacharyya on 23 March 2006. Dr Bhattacharyya wrote a report dated 27 March 2006, which relevantly states her findings on examination:

On examination of the right knee there were scars of arthroscopic surgery which were well healed. There was moderate effusion present in the right knee. There was tenderness present over the medial joint line. There was no localised tenderness under the patella on examination today. There was no collateral or cruciate ligament laxity.

The patient brought only one x-ray dated 6.3.06. X-ray of the right knee showed mild degenerative osteoarthritis indicated by mild to moderate medial compartment joint space narrowing and small marginal osteophytes (emphasis added).[37]

1. On 18 September 2006, Dr Ashwell provided a medico-legal report of that date in support of the applicant's third claim for compensation, this time for degenerative tear right medial meniscus discussed below. In his report, Dr Ashwell summarised the medical history following the injury on 1 May 1979. He referred to the third arthroscopy conducted by Dr Pearce and stated he understands "the procedure was a partial medial meniscectomy and chondrectomy".[38]
2. In his report, Dr Ashwell stated the applicant's "present complaints" as follows:

He has constant pain on the medial aspect and the back of his right knee. He has intermittent swelling particularly with prolonged standing. He has difficulty walking and standing on hard surfaces, going up and down stairs or hills. He can spend about one hour on his feet before he requires to stop and rest. He can walk one block. He has difficulty getting out of a chair and also has increased discomfort first thing in the morning.[39]

1. Dr Ashwell provided a summary of investigations and tests, the accuracy of which I accept:

06/03/06 report of x-ray of his right knee showed mild osteoarthritis with mild to moderate narrowing of the medial compartment and small osteophytes. There were no signs of a fracture or loose body.[40]

He has suffered an injury to his right knee at work on 01/05/79 and has gradually developed increasing signs and symptoms of osteoarthritis in his right knee with a subsequent degenerative medial meniscus tear.

His injury is consistent with the history as stated and his employment is a substantial contributing factor.[41]

1. Dr Ashwell added his opinion that in the future the applicant would most likely require a knee replacement.
2. The applicant gave evidence, which I accept, that in early February 2010 he was carrying a side of pork towards a table in his shed. Whilst doing so, he felt his right knee give way which caused his left knee to twist. He experienced pain and discomfort on the inner side of his left knee.[42] The applicant said he underwent x-rays on his left and right knee, following which he saw Dr Pearce.[43]
3. By letter dated 24 March 2010, Dr Pearce provided Dr Currie with a report concerning his examination of the applicant's left knee. Dr Pearce stated the left knee is "exquisitely tender on the medial side of the knee" but "appears stable". He added that the x-ray "doesn't show a lot of changes", but commented that the applicant "seems to have damaged his medial meniscus ... I think we're going to need to do an arthroscopy."[44]
4. In his witness statement dated 8 July 2019, the applicant stated that in August 2010 he was riding his quad bike when it slipped into a rut. He stated "I stuck my right leg out to stop the quad bike from rolling on its side and I fell off the bike scraping my calf against a tree or dried mud. The quad bike continued to move further down the paddock until it stopped about 10 metres from me."[45] The applicant stated -

I do not recall whether it was a week or a longer period from the quadbike incident and my attendance with my GP on 23 August 2010. I attended my GP to discuss my right knee which was swollen and hurting. I recall mentioning to my GP at some time earlier I had bruised my right calf in the bike incident and that my calf felt woody, and I believe that my right knee and calf were conflated into the same incident as being exacerbated by this quadbike accident. .. I do not recall there being an aggravation in my right knee arising from the quadbike incident.

I have seen the notes of my GP dated 23 August 2010, 16 September 2010, 10 November 2010, 18 November 2010, 1 December 2010 and 10 January 2010 (sic). I disagree with his references to me hurting my right knee in the quadbike incident.

My solicitors have shown me the reporting letters and clinical notes of Dr Pearce for 2010. I have seen the entry on 10 November 2010 and disagree that I aggravated my right knee in a quadbike accident. I have also seen the reporting letter of the same date and disagree that I jarred my knee in the incident at home (quadbike incident).[46]

1. In his supplementary statement dated 11 November 2019, the applicant said that on 10 November 2019 he was shown a patient questionnaire dated 8 May 2010, prepared for the purpose of an arthroscopy conducted by Dr Pearce on his left knee on 8 May 2010.[47] The applicant said the questionnaire "assisted my memory" and that the quadbike accident happened around Easter Monday, 5 April 2010, not August 2010.[48]
2. The applicant referred to a comment in the patient questionnaire that states "Patient had a quad bike accident 5 weeks ago, patient still has swelling to (R) knee and no feeling in right (R) knee".[49] The applicant said he would have told the nurse about "the scratch" to my calf sustained in the quadbike accident and that the difficulties in his right knee feeling swollen and numb "was the norm for my right knee and has been for years".[50]
3. In support of his position that no injury or aggravation of an injury of consequence occurred from the quadbike accident on 5 April 2010, the applicant relied on his timesheets that record him coming to work the next day, 6 April 2010, at 7am to perform his duties as a meat inspector.[51]
4. The applicant's position was that he had only one accident, on Easter Monday, 5 April 2010, and that he has "only ever had one in my whole life."[52]
5. The respondent submitted there was a second accident in August 2010, with reference to the medical notes of Dr Pearce and Dr Currie.
6. In a letter dated 10 November 2010 to Dr Currie, Dr Pearce wrote "Recently he has jarred the knee on a quad bike and now he has a lot more pain and swelling. The x-rays confirmed pre-existing changes of the medial compartment."[53]
7. In a letter dated 10 November 2010 to the respondent, Dr Pearce stated the applicant "jarred the knee further with an incident at home. However, this incident has aggravated a pre-existing problem."[54]
8. Dr Currie's handwritten note to "Comcare" states the applicant "was seen on 23.8.2010 after rolling his quad bike on his farm".[55] In his consultation notes dated 23 August 2010, Dr Currie states "rolled quad bike last week on his farm", "limping but mobile".[56] Both notes refer to the applicant suffering bruising and swelling to his right knee. The consultation notes records that on 23 August 2010, an X-ray was taken of the applicant's "right knee" and an ultrasound was conducted on the applicant's "right lower leg and knee".
9. A handwritten letter of referral from Dr Currie to M Hayward, a physiotherapist, dated 16 September 2010 states "John rolled his quad bike a few weeks ago aggravating an old right knee injury".[57]
10. A handwritten letter of referral from Dr Currie to Dr Pearce dated 3 November 2010 commences by stating "Thanks for seeing John who rolled his quad bike a few weeks ago."[58]
11. Dr Currie's contemporaneous medical notes are consistent with the applicant's evidence in his statement dated 8 July 2019 where he states he fell off his quad bike "sometime in mid-August 2010" and that he cannot now recall "whether it was a week or a longer period from the quad bike incident and my attendance with my GP on 23 August 2010."[59]
12. Per the applicant's supplementary statement dated 11 November 2019, it was not until 10 November 2019 when shown the patient questionnaire that the applicant revised his evidence to state the accident occurred on 5 April 2010.
13. I reviewed Dr Currie's notes from April 2010. There is no mention of the applicant seeing Dr Currie at all in April or in May 2010. The first mention of a quadbike accident is the entry made on 23 August 2010
14. Having regard to all the contemporaneous evidence, I am satisfied the applicant had two quad bike accidents: one approximately five weeks prior to 8 May 2010 and another a week or so prior to 23 August 2010. Notwithstanding the applicant's evidence, the clear and repeated notes from Dr Currie in August, September and November 2010 can only be explained by the applicant having a quad bike accident approximately a week prior to 23 August 2010.
15. That said, I do not imply anything untoward about the applicant. I accept him as an honest witness, but mistaken on this point having regard to the extensive contemporaneous evidence.
16. Also, in my view, nothing turns on either of the quadbike accidents.
17. Regarding the accident in April 2010, there is no medical record of any injury suffered. The only record of an injury is the note made of his answers in the patient questionnaire on 8 May 2010 and his answers do not attribute the swelling or lack of feeling in his knee with to the accident. It is also clear the applicant had been struggling with swelling and discomfort in his right knee for years. Also, assuming the accident happened on 5 April 2010, the timesheets for 6 April 2010 suggest the accident was without material consequence.
18. Referring to the second accident in August 2010, I am satisfied the applicant jarred his right knee when he "stuck [his] right leg out to stop the quad bike from rolling on its side" which led to bruising, swelling and aggravation of the pre-existing problem.
19. The more important question, for the reasons that follow, is whether the applicant likely suffered a tear to the posterior crucial ligament (PCL) his right knee when he fell off his quadbike, noting that a few months later an MRI scan conducted on 18 November 2010 revealed "a full thickness tear of the PCL in its mid-portion".[60]
20. There is no direct evidence of a PCL tear occurring in the course of the quadbike accident, and so the question became whether that should be inferred from other evidence.
21. The applicant submitted such an inference would be contrary to the evidence, namely the evidence of Dr Pillemer, an orthopaedic surgeon, who opined that if the applicant suffered a full thickness tear of his PCL on 5 April 2010, he would not have been able to present to work at 7am the following day. The applicant relied also on the evidence of Dr Christian, an occupational physician, who acknowledged that if the applicant was back at work the day after the quad bike accident "you wouldn't be expecting any significant injury to the knee." This evidence is of no value regarding the accident in August 2010.
22. The respondent submitted the inference should be drawn with reliance on the contemporaneous medical notes.
23. After considering the whole of the evidence, I think it possible but highly unlikely the applicant tore his PCL in a quadbike accident on 5 April 2010. Such an injury is inconsistent with the absence of any record of the applicant visiting his GP in April or May 2010. It is also inconsistent with him going to work the following morning.
24. After considering the whole of the evidence, I think it possible the applicant tore his PCL in a quadbike accident in August 2010, but I am not satisfied it is likely.
25. According to the records, Dr Currie examined the applicant's right knee on 23 August 2010 and found bruising and swelling. There is no suggestion of a PCL tear, much less a PCL tear that had been recently suffered. There is no suggestion of the applicant reporting symptoms that Dr Currie might have thought were indicators of a PCL tear. On examination, if the applicant had torn his PCL a week or so earlier, it is more likely Dr Currie would have noted it rather than missed it.
26. According to the records, Dr Pearce, as an orthopaedic surgeon examined the applicant's knee on 10 November 2010 on referral consequent on the quadbike accident. He found the applicant had "aggravated a pre-existing problem" and "now he has a lot more pain and swelling". He recommended a magnetic resonance imaging (MRI) scan "to assess the status of the knee at this stage".[61]
27. On 18 November 2010, the applicant underwent an MRI scan on his right knee. The report dated 19 November 2010 relevantly states:

The complex degenerative tear of the medial meniscus with horizontal, vertical and oblique undersurface components. .. There may also be a near full thickness radial component affecting the posterior horn close to the junction with the posterior root. The lateral meniscus is intact and unremarkable.

The ACL is intact and unremarkable. The MCL is a little thickened and bowed medially due to medial meniscus body extrusion but is generally of normal signal, no definite tear seen. The LCL is of slightly increased signal, suggesting an old low-grade partial thickness tear (strain). There is a full thickness tear of the PCL in its mid-portion.

Cartilage within the medial compartment is completely denuded with underlying marrow oedema, in keeping with severe diffuse chondrosis. (emphasis added)[62]

1. On 1 December 2010, Dr Pearce wrote to the respondent in relation to the MRI scan. He relevantly stated:

The MRI confirms further damage to the medial meniscus as well as an old posterior cruciate ligament injury, which I think relates to his original work injury. He also has degenerative changes in the medial compartment. He has ongoing discomfort in this knee and at this stage requires a further arthroscopy to see if we can settle it down (sic) the knee (emphasis added).[63]

1. Dr Pearce wrote a similar letter of the same date to Dr Currie.[64]
2. On or about 23 February 2011, Dr Pearce performed another arthroscopy on the applicant's right knee (the fourth arthroscopy) which "confirmed degenerative changes throughout the knee joint worse in the medial compartment."[65]
3. On 6 October 2011, Dr Harrison, another orthopaedic surgeon, saw the applicant at the request of the applicant's solicitor for the purpose of preparing a medico-legal report. Dr Harrison saw the applicant approximately 11 months after the PCL tear was noted on the MRI scan and 12 months prior to a total knee replacement. He wrote a medico-report dated 6 October 2011[66] which I have read.
4. Referring to the second arthroscopy conducted on 30 May 1990 by Dr Ashwell, Dr Harrison stated that Dr Ashwell -

trimmed the inner edge of the posterior horn of his medial meniscus "which was frayed" not apparently realising that he had a posterior cruciate ligament unstable knee.[67]

1. Dr Harrison stated that on his examination of the applicant's right leg -

he has a posterior sag that is confirmed as due to disruption of the posterior cruciate ligament on that side which presumably occurred in the original accident when he was trampled on by the steer.[68]

As a sequel to a frank and significant accident on 1 May 1979 at work when he was trampled by a steer, Mr Simeoni sustained a moderate head injury and a significant injury to the right knee at which time it is most likely that he ruptured the posterior cruciate ligament that has left him vulnerable to increasing patterns of patello-femoral discomfort since then. Notwithstanding sequential arthroscopies (where the operating surgeons initially did not appear to be aware of a posterior cruciate ligament deficiency in well-meaning attempts at lateral capsular release to alter patello-femoral pressure through that knee, he has gone on to experience increasing pain, diminished capacity to stand, walk, move quickly, squat, kneel, travel up and down steps ..

The [1 May 1979] accident and not subsequent consequences of time and the nature of conditions of his work and well-meaning efforts at treatment, is the accident where posterior cruciate ligament disruption occurred that along with other attritional changes, the underlying cause of progressive incapacity he has had in relationship to diminished knee function on that side and a trend to increased symptoms will continue, in my opinion. (sic) (emphasis included).[69]

1. Regrettably, Dr Harrison died prior to the hearing of this matter.
2. On 27 November 2012, Dr Pearce performed a total replacement of the applicant's right knee. A note from the hospital physiotherapist states the operation occurred "as the end stage management of severe degenerative changes in John's knee."[70]
3. On 25 October 2016, the applicant underwent a total replacement of his left knee.

1. By application dated 21 August 1979, the applicant claimed compensation for the injury suffered on 1 May 1979. He described his injury as "injury to head nose and right knee".[71]
2. In response to the question "how did injury occur", the applicant wrote:

While on inspection duty on the slaughter floor I was knocked down by a steer which had escaped from the stunning area.[72]

1. On 27 August 1997, evidenced by an information sheet of that date, the Commonwealth accepted liability for "concussion and bruising to right knee"[73] (the compensable condition) and paid the applicant compensation under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) as then in force.[74]
2. In the information sheet, there is the following entry written by a compensation clerk:

(i) Doctor's Diagnosis - Concussion & bruising to right knee

(ii) Claimant's statement - concussion bruising to (r) knee + nose

1. On 1 December 1988, the 1971 Act was repealed and the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) commenced.
2. On or about 28 August 1990, the applicant made a second claim for compensation, this time for permanent injury to his right knee.[76]
3. In response to the application, by letter dated 27 March 1991, the respondent advised the applicant that if the permanent impairment to his right knee occurred before 1 December 1988 compensation for permanent impairment under sections 24 or 25 of the SRC Act was not payable and "an assessment under section 39 of the [1971 Act] should be made." The respondent added:

Under the 1971 Act persons were entitled to a lump-sum if they were not or likely to become totally incapacitated and if the condition was permanent and static.

Please find enclosed a Schedule of Questions to ascertain the percentage loss for completion by your specialist.[77]

1. On 2 May 1991, Dr Ashwell answered the questions in the schedule. He stated the injury was "permanent"; the percentage permanent loss of efficient use of the right leg in and for the purposes of his employment as a meat inspector was 25%; and the condition became "permanent and static" prior to 13 June 1987.[78]
2. With reliance on Dr Ashwell's answers, on 30 July 1991 the respondent determined compensation was payable to the applicant under s 39 of the 1971 Act and that the degree of loss was 25%. It assessed compensation payable at $9,616.87 which it paid the applicant.[79]
3. In February 2006, the applicant lodged a "Gap in Treatment" form for the purpose of seeking compensation for the cost of the third arthroscopy. Dr Currie noted the degenerative tear to the medial meniscus found by Dr Pearce when conducting the arthroscopy.[80] The applicant's claim led to the respondent seeking a report from Dr Bhattacharyya,[81] who provided her report dated 27 March 2006 noted above.
4. On 28 July 2006, the applicant lodged a third claim for compensation, this time for permanent impairment of his right knee under ss 24 and 27 of the SRC Act for a claimed "degenerative tear right medial meniscus".[82]
5. By letter dated 17 August 2006, the respondent informed the applicant that he was not eligible for compensation at this time because the impairment to his knee had not changed "qualitatively and quantitatively".[83] As best I can ascertain, that claim was not pursued.
6. On 28 May 2014, the applicant lodged a fourth claim for compensation dated 19 March 2014, again for permanent impairment to his right knee.[84] This claim post-dated the applicant's total right knee replacement. This led to the respondent requesting the applicant to attend an examination by Dr Burke, a consultant occupational physician, to help assess the degree of permanent impairment. Dr Burke provided a report dated 29 October 2014 in which he wrote:

Mr Simeoni suffers from a right total knee replacement for degenerative disease of the right knee. The original inciting injury was an injury to his right knee on 01 May 1979.

Prognosis for his current condition is reasonable. He has had a total knee placement. This has been reasonably successful and it is unlikely there will be a significant improvement for the duration beyond its current state.

His original condition has been superseded by a total knee replacement subsequent to the original condition, which was bruising to the right knee.

In my opinion, his employment continues to contribute to his condition. The current symptoms and disability in his right knee are a direct result of the incident which occurred on 01 May 1979.[85]

1. By letter dated 16 December 2014, the respondent informed the applicant it accepted his claim for permanent impairment, notwithstanding its earlier acceptance on 30 July 1991 of the applicant's claimed permanent impairment under s 39 of the 1971 Act, because it was satisfied the applicant had suffered an increase in the level of permanent impairment of 10% or greater.[86] The impairment being 10% or greater overcame the preclusion under s 25(4) of the SRC Act from paying further amounts of compensation for permanent impairment unless the increase in the degree of impairment is "10% or more".
2. Acceptance of the claim led to an assessment of a 26% permanent impairment, a payment of $36,394.50 under s 24 of the SRC Act for permanent impairment and $19,908.78 under s 27 of the SRC Act for non-economic loss suffered as a result of the permanent impairment.[87]
3. By letter dated 25 May 2017 from his solicitor, the applicant made a fifth claim for compensation, this time for "time off work and lost earnings" from 1992 arising out of the injury to his right knee sustained on 1 May 1979.[88] In effect, the applicant was seeking reinstatement of his incapacity payments from 27 March 1992 when he ceased his employment with the Commonwealth (the incapacity claim).
4. In the same letter, the applicant's solicitor foreshadowed a claim for compensation arising from an injury to the applicant's left knee in 2009 or 2010 which, he said, led to the total left knee replacement on 25 October 2016. The applicant's solicitor contended the injury to the applicant's left knee resulted from him favouring his right leg due to his right knee injury and his awkward gait caused by that injury.
5. In relation to the fifth claim for compensation, the respondent sought medical evidence to substantiate that the applicant's incapacity arose from the accident on 1 May 1979. The respondent noted it had paid incapacity payments for many periods between 26 July 1989 and 29 August 1990; that the applicant had engaged in paid employment from 1992; and that the applicant had suffered further injuries to his right knee and ankle (for example an accident on his quad bike whilst working on his farm) subsequent to leaving his employment with the Commonwealth in 1992.
6. The applicant contended all the evidence the respondent needed was already on the respondent's file evidenced by the respondent paying for multiple surgical procedures on the applicant's right knee and compensating him for a 26% permanent impairment in respect of his right knee consequent on the total knee replacement.
7. To help it assess the applicant's claim for incapacity payments, the respondent requested the applicant to attend appointments with Dr Christian, an occupational physician, and Dr Bookless, an orthopaedic surgeon. The applicant attended those appointments and the doctors provided reports which I deal with below.
8. By letter dated 22 May 2018, the respondent informed the applicant that the reports from Dr Christian and Dr Bookless (as previously provided to the applicant) "suggest you do not presently suffer from the effects of your compensable condition" and that compensation for medical expenses under s 16 of the SRC Act and incapacity under s 19 of the SRC Act may not be payable. The respondent invited the applicant to provide any further medical evidence to support his claims by 5 June 2018.
9. By letter in reply dated 7 June 2018, the applicant's solicitor again relied on the respondent's payment for multiple surgical procedures and its acceptance on 16 December 2014 of a 26% permanent impairment. The solicitor contended there "can be little doubt" the applicant is not fit for work and described the further opinions obtained by the respondent that any work-related contribution to the injuries ceased within a few months of the original incident as "simply fanciful".[89] [90]
10. On 19 June 2018, the respondent made two determinations in response to the applicant's claims for compensation.
11. In the first, the respondent determined it had no present liability for incapacity payments under s 19 of the SRC Act from 27 March 1992 (being the date the applicant ceased his employment by the Commonwealth) with reliance on Dr Bookless' report (primary determination No 1).
12. In the second, the respondent determined it had no present liability for medical expenses under s 16 of the SRC Act or incapacity payments under s 19 of the SRC Act from 19 June 2018 (being the date of the determination) with reliance on the reports of Dr Christian and Dr Bookless (primary determination No 2).
13. By letter dated 7 July 2018, the applicant applied for reconsideration of primary determination No 1.[91] The applicant stated he would write separately regarding primary determination No 2, but (as best I can ascertain) I do not have a copy of that application. That said, the applicant's covering email dated 7 July 2018[92] indicates an application for reconsideration of primary determination No 2 was sent at the same time. This seemed to be accepted by the parties and I proceeded on that basis.
14. By letter dated 27 July 2018, the respondent affirmed both determinations (the reviewable decisions).[93]
15. By single application dated 31 July 2018,[94] the applicant applied to the AAT for review of both reviewable decisions.
16. For administrative reasons, as I understand it, the reviewable decision in respect of the first determination became the subject of proceeding 2018/4320.
17. The reviewable decision in respect of the second determination became the subject of proceeding 2018/4525.
18. On 18 June 2020, the applicant's solicitor filed a document headed "statement of claim" in proceedings 2018/4320 and 2018/4525 but, in the document, recast the applicant's case.
19. In the document, the applicant claimed for 'right knee osteoarthritis' as a new injury. He pleaded that prior to 13 April 2007 the applicant developed osteoarthritis in his right knee which was caused by the injury sustained in the accident on 1 May 1979. The applicant claimed the right knee osteoarthritis is an 'ailment' as defined in s 4 of the SRC Act; a 'disease' as defined in s 5B of the SRC Act because it was contributed to, to a significant degree, by his employment by the Commonwealth; and therefore a compensable injury as defined in s 5A(1)(a) of the SRC Act.
20. The applicant pleaded in the alternative, as an injury, that the applicant's body "underwent sudden physiological change" when his right knee was "removed" on 27 November 2012. This, the applicant pleaded, constituted a physical injury suffered as a result of medical treatment of an injury pursuant to s 4(3) of the SRC Act. On this basis, the applicant pleaded compensation was payable in respect of the total knee replacement. As best I can ascertain, this claimed injury was not pursued. Whilst the respondent paid for the surgery as a cost arising from the compensable condition, it was difficult to see how an elected and successful total knee replacement can itself be characterised as a new injury.
21. Regarding the osteoarthritis, the applicant pleaded that he continues to require treatment as a result of his right knee osteoarthritis and therefore continues to incur treatment expenses for which he should be reimbursed by way of compensation under s 16 of the SRC Act.
22. The applicant pleaded that he was partially incapacitated for work from 27 March 1992 (when he left his employment with the Commonwealth) to 27 November 2012 (when his right knee was replaced) as a result of his right knee osteoarthritis and totally incapacitated for work from 27 November 2012 as a result of his right knee osteoarthritis and/or total knee replacement for which he should be paid incapacity benefits under s 19 of the SRC Act.
23. The respondent filed a 'defence' in which it pleaded the matters claimed were outside the AAT's jurisdiction because initial liability for the claims had not been the subject of an initial determination. The respondent also pleaded that the claim for incapacity "is prevented" by s 46(5) of the 1971 Act.
24. The respondent treated the statement of claim as an initiating claim for compensation for right knee osteoarthritis.
25. By letter dated 24 September 2020, the respondent informed the applicant that it was not satisfied there was a causal relationship between the claimed right knee osteoarthritis and the compensable condition, namely "concussion and bruising to right knee" suffered on 1 May 1979. The respondent relied on the reports from Dr Christian and Dr Bookless dated 10 April 2018 and 30 April 2018, respectively, for why the osteoarthritis of the applicant's right knee was age-related and degenerative. The respondent also stated it was not satisfied the replacement of the right knee constituted a new injury[95] (the 2020 primary determination).
26. On 24 September 2020, applicant applied for reconsideration of the 2020 primary determination, contending without any particularisation that the respondent had "failed to consider all the medical evidence on the file."[96]
27. By letter dated 30 October 2020, the respondent affirmed its determination made on 24 September 2020. In its reasons, the respondent accepted the applicant suffered from right knee osteoarthritis, consistent with all medical opinion, but was not satisfied it was significantly contributed to by the injury suffered on 1 May 1979. The respondent maintained that the osteoarthritis arose from underlying degeneration as part of a natural age-related process or change (the 2020 reviewable decision).[97]
28. By application dated 30 October 2020, the applicant applied to the AAT for review of the 2020 reviewable decision. That application became the subject of proceeding 2020/6754.
29. On 5 March 2021, the applicant filed an amended statement of claim in which he noted the 2020 primary determination given on 24 September 2020, the request for reconsideration and the 2020 reviewable decision given on 30 October 2020 but did not change the substance of the claim.
30. On 1 April 2021, the respondent filed an 'amended defence', the details of which I address below in my summary of the respondent's submissions in the 2020 proceeding.

1. Given the way these proceedings were litigated, it is preferable first to note the respondent's submissions.

1. In response to the claim for medical expenses under s 16 of the SRC Act, the respondent noted that all claims made for expenses incurred prior to 19 June 2018 have been paid. It submitted no subsequent claim for reimbursement for medical expenses has been lodged with the respondent. The respondent submitted that where a decision has not been made to reject a claim for reimbursement of medical expenses, the Tribunal has no power to review such a claim because it has not been the subject of a decision and/or a reconsideration decision with the consequence that there is no reviewable decision for the Tribunal to review.[98]
2. The respondent also submitted that any medical expenses incurred subsequent to 19 June 2018 are not payable because they could not be "in respect of the cost of medical treatment obtained in relation to the injury", being the injury sustained on 1 May 1979. The respondent relied on the medical expert evidence to the effect that the applicant's injury suffered on 1 May 1979 had resolved within a few months according to Dr Bookless, or "settled" by 2005-2006 according to Dr Christian.
3. Accordingly, the respondent submitted any subsequently incurred medical costs were not "in relation to" the injury.
4. In response to the claim for incapacity for work from 27 March 1992, the respondent submitted that by reason of the applicant receiving a lump sum payment for permanent impairment on 30 July 1991 pursuant to (it was said) s 39 of the 1971 Act, he was not entitled thereafter to receive payments for incapacity irrespective of whether payments would otherwise be payable under s 19 of the SRC Act.
5. The submission was structured as follows.
6. Section 124 of the SRC Act deals with the application of that Act to pre-existing injuries. For an injury that occurred after commencement of the 1971 Act and before commencement of the SRC Act, as the 1 May 1979 injury is, s 124(4)(c) of the SRC Act relevantly provides:

(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment .. being an impairment .. that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:

(c) .. the 1971 Act as in force when the impairment .. occurred (emphasis added)

1. Accordingly, as the letter dated 27 March 1991 from the respondent states, the applicant's claim to permanent impairment to his right knee was assessed under s 39 of the 1971 Act.
2. That the 1971 Act, including s 39, had been repealed at the time the second application for compensation was made (28 August 1990) and at the time it was decided (27 March 1991) is not relevant. In response to a claim for permanent impairment made under s 24 of the SRC Act, s 124(4)(c) required the amount of compensation payable to be the same amount as would have been payable under s 39 of the 1971 Act. Accordingly, the operative provision for determining compensation was s 39 of the 1971 Act, not s 24 of the SRC Act.
3. In support of its submission, the respondent drew on statements of principle from the Federal Court in Hoyle v Telstra Corporation Limited.[99] The statements were noted with approval by the Federal Court, per Finn J, in Comcare v Pantic[100] as follows:

Reverting again to Hoyle, the Full Court's characterisation of the burden of s 124 was that (at 152):

... it is clear that the parliament proceeded on the basis that, where the entitlement to compensation under the [1988] Act has a relevant nexus with a period before the commencing day, the appropriate general principle should be that an employee is not to be deprived of any compensation that would have been payable under the 1971 Act but for its repeal, but is not to be entitled to any greater compensation than would have been payable under that Act.[101]

1. The respondent then relied on s 124(2)(c) of the SRC Act which relevantly states:

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(c) .. under the 1971 Act as in force when the injury, loss or damage was suffered.

1. The respondent then referred to s 46 of the 1971 Act which provided for weekly incapacity payments where an employee was incapacitated for work, as the applicant was in this case. Relevantly, s 46(5) states:

(5) Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination.

1. In Comcare v Pantic, Finn J commented on s 46(5) as follows:

It is important to note for present purposes that the Act was structured so as to create a distinct disincentive for an employee to claim a s 39 lump sum compensation payment for a loss suffered, where the injury occasioning it was one which was likely to result in subsequent periods of partial or total incapacity for work. An employee who had received a lump sum payment could not thereafter receive weekly payments for periods of incapacity for work save in the exceptional circumstances prescribed by s 50 (and, though not presently relevant, s 49).[102]

1. Accordingly, the respondent submitted, where the applicant was paid a lump sum payment for permanent impairment on 30 July 1991 pursuant to s 39 of the 1971 Act, he is not thereafter entitled to weekly payments for periods of incapacity (noting the exceptional circumstances prescribed by ss 49 and 50 of the 1971 Act are not relevant in this case).

1. Regarding medical expenses, the applicant noted that on 5 December 2019 he provided the respondent with receipts for anti-inflammatories for the purpose of showing the applicant has incurred expenses post-dating the respondent's primary determination No 2. The applicant noted there is no suggestion the respondent's reliance on s 46(5) of the 1971 Act applies to compensation for the cost of medical treatment per s 16 of the SRC Act, and submitted therefore his claim for compensation is not otiose in relation to those benefits.
2. In response to the respondent's submissions regarding incapacity, or the respondent's 'knock-out' point as the applicant characterised it, in the AAT the applicant initially acknowledged the respondent's payment on 30 July 1991 "was made under s 39 of the 1971 Act"[103] but submitted this was without consequence. The applicant stated:

It is clear as day that the injury accepted by Comcare was for "concussion and bruising to right knee". It is also clear that the s 39 lump sum awarded by Comcare in 1991 was in respect of that injury. The s 39 lump sum was never paid in respect of an accepted disease of right knee osteoarthritis or aggravation of same.

The Applicant's incapacity for work from 24 March 1992 has arisen from the development of his right knee osteoarthritis and not from "concussion and bruising to right knee".

Accordingly the Respondent's knock-out point is chimerical[104] and must fail. (emphasis added)[105]

1. In short, the applicant did not dispute the respondent's 'knock out' point but submitted it was irrelevant because the applicant was seeking incapacity payments by reference to the applicant's claimed disease, namely right knee osteoarthritis, not the injury for which the 30 July 1991 lump sum payment was made.
2. In 2022, the AAT posed that because the 1971 Act (including s 39 of that Act) was repealed on 1 December 1988, the only power to pay the lump sum to the applicant on 30 July 1991 was s 24 of the SRC Act and that because the payment was not made under the 1971 Act there was no room for the operation of s 46(5) of the 1971 Act. It sought submissions from parties.
3. Understandably, in response, the applicant changed tack. The applicant stated he "acknowledges the Tribunal's query and apologises for not discerning the Tribunal's point earlier". The applicant stated "it would seem that Comcare issued the s 39 determination on 30 July 1991 ultra vires. Accordingly, the determination of 30 July 1991 is a nullity." The applicant concluded by stating he "concedes the Tribunal's point" and "acknowledges the correctness of the Tribunal's proposition".[106]
4. The AAT subsequently ruled the payment on 30 July 1991 was made under ss 24 and 27 of the SRC Act; the respondent had erroneously described the lump sum payment as made under s 39 of the 1971 Act; and s 46(5) of the 1971 Act did not apply because it had been repealed.[107]
5. In these remittal proceedings following the Federal Court's decision to set aside the AAT's decision, the applicant reverted to his position that the respondent's 'knock-out' point is chimerical, but added a submission with reference to the AAT's ruling that "in the absence of an appeal to the Federal Court on this jurisdictional point (which clearly would have been a question of law) [the respondent] is taken to have accepted the reasoning of the former Tribunal on this point and it is not open for [the respondent] to re-agitate that legal point any further.[108]
6. In oral submissions on remittal, the applicant said the Tribunal would also need to deal with the AAT's ruling in some way.

1. Regarding liability to pay for the costs of medical treatment, s 16 of the SRC Act relevantly provides:

Compensation in respect of medical expenses etc

(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

1. For compensation to be payable under s 16, the injury must be an existing condition for which medical treatment is needed. In Woodhouse v Comcare (Woodhouse),[109] a Full Court of the Federal Court said:

For the reasons referred to previously, the existence of an entitlement to compensation pursuant to s 14 in respect of a relevant period of time depends on there being an "injury" from which the employee suffers during that period of time. Compensation is only payable for the period during which the injury retains the relevant causal nexus with employment.[110]

1. The respondent's position was that the applicant no longer suffers from the 1 May 1979 injury, such that medical expenses incurred were not for medical treatment "in relation to the injury" and the respondent is therefore not liable to pay them.
2. Referring to the respondent's first submission, in my view the absence or presence of evidence (for example medical receipts) to support a cost incurred for which the applicant wishes to be reimbursed is beside the point. Primary determination No 2, affirmed on review, was that the respondent is not liable to pay medical expenses with effect from 19 June 2018 consequent on the respondent's finding that such medical expenses were not (or would not be) "in relation to" the compensable injury. Whether an injury has resolved, such that expenses occurred subsequently could not be in relation to the injury, is a question the Tribunal has jurisdiction to consider irrespective of whether evidence of costs incurred after 19 June 2018 has been produced.
3. On the whole of the evidence, I was not satisfied the applicant continued to suffer from the 1 May 1979 injury after 19 June 2018. The compensable injury suffered that day was "concussion and bruising to right knee". Dr Bookless opined that injury resolved within a few months. Dr Christian thought the pain and discomfort did not settle until 2005 or 2006. Whatever be the date, I was not persuaded the applicant was incurring medical expenses for the treatment in relation to his bruised knee after 19 June 2018 where, by that date, his knee had been removed six years earlier. Accordingly, the applicant is not entitled to weekly incapacity payments "as a result of" the 1 May 1979 injury.
4. I turn to liability for incapacity for work.
5. When describing the respondent's so-called knock-out point as chimerical, the applicant was not denying the correctness of the point. Rather, he was focusing on the fact (which I accept) that the lump sum payment made on 30 July 1991 was in relation to the 1 May 1979 injury, not the applicant's right knee osteoarthritis, such that the payment is irrelevant for the purpose of determining incapacity for work as "a result of" the right knee osteoarthritis.
6. Whether the respondent is liable for incapacity payments arising from the respondent's osteoarthritis is better dealt with in the context of that claim in proceeding 2020/6754, which I deal with below.
7. Referring to the applicant's second submission regarding the absence of a ground of appeal, the applicant did not take me to any authority in support of it nor have I previously encountered such a submission. The respondent appealed on many grounds, but the Court thought it necessary only to deal with one. The matter has been remitted to be decided "according to law". In my view, that the AAT's ruling about the applicable legislation was not one of the grounds of appeal is irrelevant: my obligation to decide the matter "according to law" remained.
8. Referring to the applicant's third submission, I acknowledge the AAT's ruling should still be dealt with.
9. I begin by respectfully disagreeing with the respondent's characterisation of the applicant's claim for weekly incapacity payments as question of jurisdiction. The claim was made under s 24 of the SRC Act. A decision was made and confirmed on reconsideration to reject the claim. The Tribunal has jurisdiction to review that decision. In doing so, the Tribunal was obliged to apply the applicable law which is a task within jurisdiction.
10. Pursuant to s 124(4)(c) of the SRC Act, by reason of the date of injury (1 May 1979), the applicant's claim for incapacity payments under s 24 of the SRC Act needed to be assessed (as occurred) by reference to the amount payable under s 39 of the 1971 Act. The fact that s 39 had been repealed on 30 July 1991 did not change that obligation. With respect, I disagree with the AAT's view that the lump sum payment was made under s 24 of the SRC Act where incapacity payments under that section would have produced different amounts by reference to different criteria contrary to s 124(4)(c).
11. The question was whether the applicant was precluded from receiving weekly incapacity payments consequent on him receiving a lump sum payment on 30 July 1991 calculated according to s 39. Pursuant to s 124(2)(c), the applicant was not entitled to compensation under the SRC Act in respect of the injury suffered on 1 May 1979 if compensation was not payable under the 1971 Act. Pursuant to s 46(5) of the 1971 Act, compensation in the form of weekly incapacity payments was not payable where a lump sum had been paid under s 39. Applying the principles in Hoyle and Pantic, where the lump sum payment made in July 1991 was assessed by reference to s 39 of the 1971 Act, s 46(5) of the 1971 Act is engaged. It follows, pursuant to s 124(2)(c), that the applicant was not entitled to weekly incapacity payments under the SRC Act in respect of the injury that occurred on 1 May 1979.
12. For these reasons, the reviewable decisions in proceedings 2018/4320 and 2018/4525 will be affirmed.

1. There was no dispute, and I find, that the applicant suffers from right knee osteoarthritis. There was also no dispute that the osteoarthritis is an 'ailment', as defined in s 4 of the SRC Act, meaning relevantly "a physical ailment, disorder or morbid condition."
2. The question was whether the osteoarthritis, as an ailment, was also a disease as defined in s 5B of the SRC Act, which relevantly provides:

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

"significant degree" means a degree that is substantially more than material.

1. Referring to s 5B(1), I agree with the applicant that the central question was one of causation: is the applicant's osteoarthritis an ailment "that was contributed to, to a significant degree, by the employee's employment by the Commonwealth."?

1. In summary, the applicant submitted that to a significant degree the osteoarthritis arose from a PCL rupture or tear that occurred when the applicant was knocked down by the steer on 1 May 1979 in the course of his employment by the Commonwealth.
2. In support of that submission, the applicant relied primarily on the evidence of Dr Pillemer, an orthopaedic surgeon, but also on the reports of Dr Pearce and Dr Harrison.
3. The expert evidence was wide-ranging, but for the purposes of the applicant's case I focus on the evidence relevant to the question whether the applicant likely suffered a PCL rupture or tear on 1 May 1979 and, if so, whether it contributed to the osteoarthritis so that it could be said the osteoarthritis was contributed to, to a significant degree, by the applicant's employment.
4. Dr Pillemer wrote two medico-legal reports dated 28 November 2018[111] and 4 July 2019,[112] respectively, for the purpose of these proceedings which I have read.
5. In his first report, Dr Pillemer states -

Looking through contemporaneous medical reports it seems that his main symptoms were related to the patellofemoral joint and early arthroscopies did not show any medial compartment osteoarthritis. Most importantly, I note that an MRI on 1 December 2010[113] showed a posterior cruciate ligament injury as well as damage to the medial meniscus and degeneration of the medial compartment. I also note from the report of Dr J Harrison of 6 October 2011, that on examination '... he has a posterior sag that is confirmed as being due to disruption of the posterior cruciate ligament on that side which presumably occurred in the original accident when he was trampled by the steer.'

As noted Mr Simeone has had ongoing problems with his right knee ever since his injury on 1 May 1979 with the symptoms being aggravated in February 1981 [when kicked by a calf]. Symptoms became progressively worse with time, eventually leading to a total knee replacement.

It would seem clinically and on investigations Mr Simeoni has a tear of his posterior cruciate ligament as well as patellofemoral damage, and noting on a very careful history taking, there have not been any other injuries to his right knee, and it is very reasonable to suggest that he tore his posterior cruciate ligament in either the injury in 1979 or 1981. There would also be no doubt that with a torn cruciate ligament and patellofemoral arthritis, the early development of osteoarthritis in the knee is predictable, and although the early arthroscopies did not show any damage to the medial compartment, by the time he had his x-rays in March 2006 he had evidence of mild to moderate narrowing of the medial compartment, with small osteophyte formation, indicating a considerable period of time in the development of the arthritis.

In my opinion the most likely explanation is that Mr Simeoni in addition to damaging his patellofemoral joint, also tore his posterior cruciate ligament at one or another of his original two injuries. This is evidenced by the findings on the MRI and the clinical findings of the orthopaedic specialist.[114]

1. In his second report, after re-examining the applicant that day, Dr Pillemer noted his opinion in his earlier report that the applicant's "ongoing knee problems were due to his original injury in May 1979" and that he was "guided by" the report of Dr Harrison.[115] Dr Pillemer then stated:

_Please note that early arthroscopies did not show any damage to his medial compartment and by the time he had x-rays in March 2006, he had evidence of mild to moderate narrowing of the medial compartment, indicating the development of osteoarthritic change in the knee. This would certainly be in keeping with the injury to the knee with posterior cruciate ligament damage (_sic).

1. Dr Pillemer concluded by stating his opinion "remains basically unchanged". He stated -

it would certainly seem very likely that at that stage [1 May 1979] he tore his posterior cruciate ligament as evidenced by the findings of Dr J Harrison as well as the MRI carried out on 18 November 2010.

1. Dr Pillemer answered questions posed to him as follows:

In my opinion Mr Simeoni sustained his knee injury on 1 May 1979 at which stage he would have sustained a tear of his posterior cruciate ligament with the subsequent development of osteoarthritic change in his right knee requiring a total knee replacement.

In my opinion Mr Simeoni's knee problems date from his original injury in May 1979 which was the cause of his ongoing problems

in my opinion at most, the quadbike incident in August 2010 would have been an aggravation of his underlying problem and not a substantial contributing factor to his need for a knee replacement.

1. Supplementing his reports, Dr Pillemer gave oral evidence at the AAT hearing.
2. The applicant submitted it is "well-recognised in orthopaedic circles" that a PCL tear can lead to osteoarthritis or at least the early onset of it. He submitted that the "material contribution" test is a question of fact for the Tribunal, and it therefore does not matter that Dr Pillemer did not give his opinion on whether the contribution of the PCL tear to the osteoarthritis was material.
3. The applicant submitted the "real question" is the anterior question, namely "did the applicant tear his right PCL on 1 May 1979" which, as he submitted, is a question of fact for the Tribunal to decide.[116]
4. With reliance on the opinion of Dr Pillemer, the applicant submitted that "by a process of elimination the accident on 1 May 1979 is the best contender for the cause of the PCL tear."[117] The applicant relied on Dr Pillemer's opinion as a highly respected orthopaedic surgeon who has practised for about 45 years and performed hundreds of knee arthroscopies. The applicant noted Dr Pillemer's evidence is supported by the evidence of Dr Harrison and Dr Pearce. The applicant submitted Dr Pillemer's opinion was "not based on speculation but on many decades of experience and learning."
5. The applicant submitted the Tribunal should not give weight to the submission that the PCL tear was degenerative. He relied on Dr Pillemer's evidence that this can occur occasionally as part of a whole chronic arthritic condition and that a PCL tear "doesn't occur purely from degeneration in isolation."[118]
6. The applicant acknowledged he sustained a patella injury on 1 May 1979, which was noted, but submitted he also sustained the PCL tear that was not noted and that, as a consequence of the PCL tear, he suffered osteoarthritis in his right knee "years before he had to". He submitted that where the PCL tear aggravated the osteoarthritis, and where, for that reason, the osteoarthritis was contributed to a significant degree by the applicant's employment, the osteoarthritis is a disease and therefore a compensable injury.

1. In summary, the respondent made three main submissions.[119]
2. First, it contended the SRC Act "does not apply" in relation to the applicant's osteoarthritis because the applicant became aware of it in 2005 but did not notify the respondent, as the "relevant authority",[120] until 2020. In this regard, s 53(1)(a) of the SRC Act provides that the Act "does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority" ... "as soon as practicable after the employee becomes aware of the injury".
3. The respondent acknowledged the latitude in this requirement, per s 53(3), but contended latitude should not be given because of the prejudice the respondent has suffered as a consequence of the late notice. In particular, had the applicant notified the respondent of his claim that the PCL materially contributed to the osteoarthritis, the respondent could have arranged an MRI scan in 2005 rather than when it was done in 2010 which might have shown the absence of the PCL tear and so ruled out the applicant's claim that the tear was suffered in 1979.
4. Second, the respondent contended the Tribunal cannot be satisfied the osteoarthritis is a disease, as defined in s 5B(1), because there is no or insufficient evidence to establish the osteoarthritis "was contributed to, to a significant degree" by the applicant's employment. The respondent noted Dr Pillemer never gave evidence, nor did anyone else, regarding the degree of causal contribution of the alleged PCL tear to the development of osteoarthritis in the applicant's right knee. The respondent submitted that without evidence to establish the necessary degree of contribution, the osteoarthritis cannot be regarded as a disease and the claim must fail.
5. Third, in respect of the accepted patella injury suffered in the accident on 1 May 1979, the respondent noted no claim was made of a causal relationship between that injury and the subsequent osteoarthritis and that the patella injury resolved prior to the clinical onset of the osteoarthritis.
6. Turning to the evidence, the respondent arranged for Dr Christian, an occupational physician, to examine the applicant for the purpose of obtaining his opinion (in summary) of the causal connection (if any) between the applicant's injury on 1 May 1979 and his current condition.[121]
7. The respondent provided Dr Christian with a substantial number of medical reports from medical practitioners who had treated and performed surgery on the applicant's right knee from 1 May 1979 through to 2 December 2014, including as best I can ascertain all the medical reports referred to above.
8. The examination occurred on 28 March 2018, following which Dr Christian provided three reports dated 10 April 2018, 4 April 2019 and 11 October 2019 which I have read.
9. In his report dated 10 April 2018, Dr Christian set out his review of the medical history. He noted the 1979 accident led to a patella injury at the right knee and that the evidence suggests it had settled by 2005 or 2006. Dr Christian explained why he did not think the patella injury led to osteoarthritis in the knee. Dr Christian did not touch on the question whether the applicant also suffered a PCL tear in the 1979 accident or whether, if so, it contributed in some way to the osteoarthritis.
10. In his further report dated 4 April 2019, Dr Christian commented on Dr Pillemer's opinion that the applicant sustained a PCL tear in the 1979 accident or the 1981 accident and that the tear led to arthritis. Dr Christian disagreed. He noted the period of "some 25 years" between the 1979 accident and the first clinical findings of osteoarthritis in 2005. He noted the absence of osteoarthritis in the reports concerning the first and second arthroscopies in 1986 and 1990, seven to ten years post-accident which, he said, "does, to my mind, go strongly against an accident in 1979 or 1981 as being a primary cause of the osteoarthritis."
11. The respondent provided Dr Christian with a copy of Dr Bookless' report dated 30 April 2018 (mentioned below) and Dr Pillemer's report dated 28 November 2018 for further review. Dr Christian acknowledged "at least a possibility" that the applicant sustained a PCL tear in the 1979 accident, but referred to evidence "against that". He noted the absence of any clinical evidence of a PCL tear until noted on the MRI scan in November 2010. He noted Dr Pearce's finding of a medial meniscus tear in 2005, and suggested that if there was also clinical evidence of a PCL tear Dr Pearce would have indicated that.
12. Dr Christian opined that where there was no evidence of the PCL tear until 2010, it was "at least plausible" that it occurred in a prior accident, post 1 May 1979, for example the quadbike accident where the applicant jarred his knee.
13. For these reasons, Dr Christian opined the 1979 accident "is a most unlikely primary cause of the osteoarthritis."
14. In his report dated 11 October 2019, Dr Christian stated he had read the further reports from Dr Bookless dated 24 July 2019 and Dr Pillemer dated 4 July 2019 and the applicant's statements dated 10 April 2018 and 4 April 2019. He stated the new information did not alter his conclusions.
15. On remittal, the respondent relied on the Federal Court's summary of Dr Christian's evidence and its observation that "Dr Christian's evidence was a central part of Comcare's case. If his evidence was accepted by the Tribunal, it would have been dispositive."[122]
16. The respondent sought a similar report from Dr Bookless and likewise provided him with the medical reports evidencing treatment and surgery on the applicant's right knee from 1 May 1979 to 2 December 2014.[123]
17. Dr Bookless examined the applicant on 19 April 2018 and provided a report dated 30 April 2018.[124] In his report, Dr Bookless wrote:

It appears that Mr Simeoni had a soft tissue injury affecting his right knee as a result of a fall in 1979. From your accompanying file it appears that his ongoing symptomatology which would appear to have been related to chondromalacia patellae has been accepted as a direct result of this injury. All subsequent treatment and surgery on this joint would appear to have been paid for and accepted .. It is evident that over the last four years he has also developed osteoarthritis on the uninjured left knee which came to a total knee replacement in 2016. There is no history of specific trauma to this joint. As a result of these findings it would appear that Mr Simeoni has had a constitutional predisposition to medial compartment osteoarthritis of his knees.

I believe the effects of the compensable injury ceased three months after the original injury of bruising right knee in 1979. However it does appear that Comcare has accepted ongoing liability for the troubles associated with this knee. I believe these troubles relate to idiopathic degeneration within the knee which has continued throughout his life. He had subsequently developed idiopathic degeneration in the other knee leading to a knee replacement performed four years subsequent to the right total knee replacement. I believe this and support to the argument that his problems of degeneration in the knee are idiopathic.[125]

The initial trouble with the right name was related to his employment as a Meat Inspector in the Department of Primary Industries. Ongoing troubles with the knee are however related to underlying degeneration as part of the natural ageing process.

Mr Simeoni's initial compensable condition of bruising right knee has been superseded by a degenerative condition affecting the right knee which has gone on to severe osteoarthritis necessitating total knee replacement.

I do not consider Mr Simeoni's employment continues to contribute to this condition. Mr Simeoni's current condition is related to bilateral osteoarthritis knees, managed with total knee replacement.

1. Dr Bookless, like Dr Christian, made no mention of the PCL tear or any causal connection between it and the osteoarthritis. As I understand it, that was because the claimed causal connection had not been raised at the time.
2. The respondent later provided Dr Bookless with a copy of Dr Pillemer's report dated 28 November 2018, a copy of Dr Christian's report dated 10 April 2018 and the summonsed records of Dr Pearce. In a supplementary report dated 26 March 2019, Dr Bookless stated the enclosed material did not cause him to change his opinion as previously expressed. Drawing on the report from Dr White dated 17 October 1980 who found all ligaments appeared to be intact; the report from Dr Ashwell who examined the applicant and performed an arthroscopy in 1986 and did not report any evidence of a PCL tear; and the second arthroscopy in 1990 where "once again there was no suggestion there was a posterior cruciate ligament injury", Dr Bookless stated he could not support a contention that the applicant suffered a PCL rupture in 1979 when trampled by the steer.[126]
3. The respondent later provided Dr Bookless with a copy of Dr Pillemer's supplementary report dated 4 July 2019 and the films produced by the MRI scan. Dr Bookless provided a further report dated 24 July 2019.[127] Dr Bookless stated that after reviewing the films, he agreed there is evidence of a PCL tear "of the right knee associated with the medial compartment degenerative changes". Dr Bookless noted Dr Harrison and Dr Pillemer examining the applicant after the date on the MRI scan. Dr Bookless also noted the applicant suffered injuries to his right knee subsequent to the 1 May 1979 accident. Dr Bookless concluded -

It is impossible to say with any certainty as to when the rupture of the posterior cruciate ligament took place.

I note the plain x-rays on the right and left knees performed in February of 2010 showed evidence of severe medial compartment osteoarthritis of the right knee and moderately severe osteoarthritis of the left knee.

I would not deny the possibility of long-standing posterior cruciate ligament rupture precipitating osteoarthritis in the knee. However, the fact that both knees have significant osteoarthritis in the same compartment does add significant weight to the contention that there are significant underlying constitutional factors precipitating this arthritis.

In view of this, I am not inclined to change my opinion as previously expressed.

1. Regarding the respondent's first submission, I was not persuaded the SRC Act does not apply in relation to the applicant's osteoarthritis because (it was said) notice of it was not provided pursuant to s 53.
2. The earliest clinical record of osteoarthritis is in 2005, and the respondent knew of its existence by 2006: it was mentioned in Dr Bhattacharyya's report dated 27 March 2006 that was prepared at the respondent's request and provided to it for the purpose of assessing a claim for compensation.[128]
3. I acknowledge the applicant did not characterise the osteoarthritis as a new work-related injury or claim compensation for it until 2020, and the respondent might well have dealt with the claim differently and earlier had it known the way in which the claim would later be put, but I do not think that is a proper basis to find the SRC Act does not apply at all pursuant to s 53. As the applicant pointed out, the respondent was well aware of the osteoarthritis from the outset.
4. Regarding the respondent's second submission, I do not think the absence of comment by Dr Pillemer on the degree of contribution of the claimed PCL tear to the applicant's osteoarthritis is, itself, fatal to the applicant's claim.
5. Whether the applicant suffered the PCL tear when injured at work on 1 May 1979; if so, whether the PCL tear contributed to the osteoarthritis; and, if so, the degree of the contribution are all questions of fact for the Tribunal to decide on the whole of the evidence. That Dr Pillemer did not comment on the degree of contribution does not mean these questions of fact cannot be answered in the affirmative on the whole of the evidence.
6. Before getting to contribution or the degree of it, the first question - or "real question" as the applicant described it - was whether the applicant suffered the PCL tear when injured at work on 1 May 1979.
7. The applicant did not bear an onus of proof on this question, but the Tribunal needed to be satisfied of that fact on the material before it, per the way the applicant put his case. This need for satisfaction, has been expressed in different ways over time.
8. In Beezley v Repatriation Commission,[129] a Full Federal Court put it this way:

In any case before a merits review Tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides .. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. .. In that sense, as a practical matter, it is not incorrect to say that the person "must satisfy" the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest.[130]

1. In Re O'Callaghan and Comcare,[131] the AAT put it this way:

Firstly, the balance of probabilities test requires reasonable satisfaction in a legal context - it is a departure from scientific assessment. Under the SRC Act it is for a decision maker to apply the legal test of causation and, in so doing, the decision maker must consider and evaluate all of the evidence. Where the language of medical experts does not rise above possibility of causation in medical terms, it is for the decision maker to determine, in consideration of the evidence as a whole, if this possibility amounts to a probable cause in the legal sense.

Secondly, where expert evidence does not provide clarity, the balance of probabilities reasonable satisfaction civil standard of proof may involve the drawing of inferences. But indefinite evidence or indirect inferences are not sufficient. An appropriate degree of confidence based on reason is required .. There is no authority for a decision maker under the SRC Act to simply choose between possibilities - reasonable satisfaction in a legal context requires more than conjecture, based on choosing between possibilities, theories or guesses of equal plausibility or likelihood on the ground that one seems more likely or probable than another. This is so even if a possibility is real rather than fanciful.

... Furthermore, reasonable satisfaction is a positive state arrived at on evaluation of evidence and the application of logic or reasoning. The point was succinctly put by Gyles JA in Sydney South West Area Health Authority v Stamoulis at [39] -

The point remains that, in the absence of scientific clarity, causation may be found in arriving at legal responsibility by inference and with evaluative judgement, provided that actual satisfaction is reached and that, as was made clear in Travel Compensation Fund v Tambree [2005] HCA 69 .. the finding is in accordance with principle and not a "value judgement at large" (per Gleeson CJ at [29]).[132]

1. Applying these principles, to find in favour of the applicant's claim required me to be reasonably satisfied, as "a positive state" arrived at after an evaluation of the whole of the evidence, that the PCL tear occurred or likely occurred when the applicant was struck down and trampled by the steer.
2. The required positive satisfaction of this fact exposed three main problems in the applicant's case.
3. The first was the absence of any contemporaneous evidence of the existence of the PCL tear until the MRI scan was done on 18 November 2010, approximately 30 years after the applicant suffered the injury to his knee on 1 May 1979, notwithstanding numerous examinations and surgeries by different doctors including orthopaedic surgeons during that 30 year period. The applicant did not take me to any such contemporaneous evidence and I could not find any.
4. I also note the following exchange between counsel for the respondent and Dr Pillemer:

Q: What is the evidence that there was a PCL tear, not from what Mr Simeoni told you 40 years later, contemporaneous documents only, evidence of a PCL tear, positive evidence of a PCL tear?

A: I'm basing it entirely on Dr Harrison's report who found it clinically and showed on the MRI that there was a posterior cruciate tear.

Q: Even within 10 years of when it occurred, could you tell me what positive evidence within 10 years with all the orthopaedic surgeons, GPs, scans involved, everything, any piece, a single piece of positive evidence contemporaneously of a PCL tear that occurred in 1979?

A: No, I can't find that in contemporaneous evidence.[133]

1. That was later confirmed in the following exchange:

Q: Yes. Well, perhaps I don't need to go through all of them[134] if you've looked at them and say you're saying the only evidence of PCL tear in 1979 is the fact that the PCL tear was found in 2010 on an MRI, late 2010?

A: Apart from the history given by Mr Simeoni, yes.[135]

1. This led to the second problem in the applicant's case: the value or weight that could be given the two pieces of evidence on which Dr Pillemer's opinion is based, namely Dr Harrison's report and the history given to him by the applicant.
2. Dr Harrison's finding of the PCL tear was uncontroversial: it had been noted in the report of the MRI scan conducted 11 months prior to Dr Harrison seeing the applicant.
3. Dr Harrison's finding on examination of a posterior sag as evidence of a PCL tear, and Dr Pillemer's reliance on that finding because there is "no other cause that would give you a posterior sag this size [other than a] torn posterior cruciate ligament"[136] is also uncontroversial: there is no dispute the applicant had a PCL tear when examined by Dr Harrison on 6 October 2011. That evidence says nothing about when the PCL tear occurred.
4. Dr Pillemer stated that from a medical viewpoint his opinion that the PCL tear occurred on 1 May 1979 was based "entirely" on Dr Harrison's report. In other words, the opinion of the witness, Dr Pillemer, was based entirely on an opinion in a report written by someone else.
5. Dr Harrison referred to the accident on 1 May 1979 and opined "at which time it is most likely that he ruptured the posterior cruciate ligament", but he said nothing as to why he held that opinion. Later, Dr Harrison opined "that accident and not subsequent consequences of time and the nature of conditions of his work and well-meaning efforts of treatment, is the accident where posterior cruciate ligament disruption occurred", but still said nothing as to why he considered that to be so.
6. As for the earlier "sequential arthroscopies", Dr Harrison opined "the operating surgeons initially did not appear to be aware of a posterior cruciate ligament deficiency in well-meaning attempts at lateral capsular release to alter patello-femoral pressure",[137] necessarily implying the PCL tear was there but each of the operating surgeons missed it, but he said nothing as to why it should be concluded they missed it rather than it was not there.
7. Dr Harrison was not available to be asked why he thought the PCL tear occurred in the accident on 1 May 1979, rather than at any other time or in any other circumstance in the following 26 years of the applicant's life before Dr Harrison wrote his report.
8. These circumstances created real difficulty as to the weight that could be given to Dr Harrison's opinion, on which Dr Pillemer relied "entirely".
9. Whether the PCL tear likely occurred on 1 May 1979 is a finding of fact to be made by the Tribunal on the whole of the evidence: it cannot defer to the opinion of a witness - much less the opinion of a witness who has deferred to the opinion of someone else. In Lang v The Queen,[138] the High Court recently commented on the use of expert evidence for the purpose of making a finding of fact. The Court said:

6. Another person cannot usurp the fact-finding function of the tribunal of fact, and an opinion of another person based on nothing more than the common knowledge and experience of that person cannot assist the tribunal of fact in performing that function. The tribunal of fact might at most be assisted in the performance of the function by being apprised of the opinion of another person - an expert - based on that person's specialised knowledge or experience. The probative value of evidence of an opinion that is based on specialised knowledge or experience then lies in the extent, if any, to which the opinion has the potential to assist the tribunal of fact in the process of drawing the requisite inferences for itself.

7. That common law conception of the opinion of an expert having probative value only if and to the extent that the opinion can assist the tribunal of fact in forming its own opinion as to inferences to be drawn from evidence was the starting point and the dominant theme of the influential analysis in Makita (Australia) Pty Ltd v Sprowle__s_. The role of expert witnesses was explained at the commencement of that analysis in the following terms:_

"Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury." (footnotes excluded)

1. In Makita (Australia) Pty Ltd v Sprowles, the NSW Court of Appeal commented on the use of expert evidence as follows:

If Professor Morton's report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions.[139]

1. Further in Makita v Sprowles, the Court referred to a statement in Ramsay v Watson regarding the use of expert medical opinion evidence:

One another important aspect of Ramsay v Watson is the following statement at 645:

That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves `Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?'.

The jury cannot weigh and determine the probabilities for themselves if the expert does not fully expose the reasoning relied on.[140]

1. The Court quoted from numerous other decisions consistently pointing out that an opinion is of no value unless the facts or assumptions and reasoning that underpin it is laid out. I quote an example:

In Bollock[141] (sic) v Wellington (1996) 15 WAR 1 at 3 Anderson J said:

"Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts ..."

"As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it ...

None of these requirements is satisfied, when all that the medical expert says is `I have examined this patient and from what I know about plant operation I think he can drive a D10 bulldozer on production work'."

He also said at 4, citing Pownall v Conlan Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370 at 390:

"Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight ... ."[142]

1. These principles apply equally in tribunal proceedings.
2. In Perich and Secretary, Department of Social Services,[143] the AAT said:

48. The question remains as to which doctor's evidence should be preferred. Although ... the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate, the Tribunal is of the opinion that it is appropriate to apply the following principle regarding expert opinion evidence, as summarised by Anderson J in Pollock v Wellington (1996) 15 WAR 1 as follows:

Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight: see Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, esp at 390.[144]

1. In HNGN and Military Rehabilitation and Compensation Commission,[145] the AAT again quoted from Pollock v Wellington which, it said, "provides guidance that is relevant to evaluating expert evidence".[146]
2. I appreciate the Tribunal is not bound by the rules of evidence and can inform itself as it sees fit. However, the principles stated above still govern the weight that can be given to expert opinion evidence. The principles explain why the Tribunal's practice direction regarding expert evidence states:

3.1 An expert's written report prepared for the purpose of a proceeding in the Tribunal must include the following information ..

(c) details of any facts and assumptions that inform the report and the sources for those facts and assumptions;[147]

1. I have no difficulty with Dr Harrison's report forming part of the evidence, as a document before the decision maker that needed to be made available to the Tribunal. However, the principles stated above explain why no weight can be given to Dr Harrison's opinion about when the PCL tear likely occurred. Dr Harrison states nothing as to why he held that opinion and, as Dr Pillemer acknowledged, there is no contemporaneous evidence to support that opinion and no contemporaneous evidence of the existence of the PCL tear prior to 2010.
2. The problem then was that Dr Pillemer based his opinion "entirely on Dr Harrison's report", together with the history the applicant gave Dr Pillemer 40 years later.
3. Dr Pillemer did not question or scrutinise Dr Harrison's opinion about when the PCL tear likely occurred. Rather, he proceeded on the basis that Dr Harrison's opinion was correct and then sought to dispel or discount all the evidence as to why it was not. His responses were not persuasive.
4. The second piece of evidence on which Dr Pillemer based his opinion is the history given to him by the applicant. Here too, the evidence struck difficulty because nothing in the relayed history set out in Dr Pillemer's reports supports the existence of a PCL tear and some of the history is to the contrary.
5. For example, Dr Pillemer accepted as "correct",[148] per a statement in his first report,[149] that the applicant told him his knee wasn't really stable after 1990, 11 years after the 1979 incident, but could not really recall whether he had any instability in his knee before 1990. When it was suggested the applicant's absence of any recall of instability prior to 1990 was inconsistent with the existence of a PCL tear during the previous 11 years, Dr Pillemer contended -

the outcome of posterior cruciate ligament injuries is variable ... The fact that there was no instability prior to [1990] wouldn't surprise me in the presence of posterior cruciate tear.[150]

1. With respect, the existence of a PCL tear without instability in the knee was inconsistent with his earlier evidence that a knee becomes unstable when the PCL is torn. Dr Pillemer stated -

once you tear the posterior cruciate ligament you get what we call posterior cruciate instability which means that the knee now becomes unstable.[151]

1. I accept it is possible for a person to have a PCL tear yet not display knee instability, but (on the evidence) it is probable that a person who does not display knee instability does not have a PCL tear.
2. The third main problem regarding satisfaction that the applicant tore his right PCL on 1 May 1979 was the significant evidence to the contrary. No one was suggesting it was not possible. Rather, the evidence was strongly against it.
3. Dr Bookless acknowledged the applicant's contention that all the applicant's treating clinicians missed it is possible, in the sense that "you can never say never",[152] but described the possibility as "most unlikely",[153] and "a faint possibility".[154] Dr Bookless explained why. He stated that "when you put the whole picture together", and that a "whole series of clinicians" looked at the applicant's knee and did "not come up with" a diagnosis of a PCL tear until it was found on the MRI scan in 2010 it is "most unlikely" that everyone overlooked it. More probably, it was not noticed or diagnosed because it was not there.
4. Dr Christian similarly acknowledged the applicant's contention is possible, but described it as "very unlikely", "remote" and "relatively unlikely".[155] In oral evidence, Dr Christian said:

And I am quite happy just to go through why - I can do it quite briefly, if you like, why my opinion is that a PCL tear is unlikely to have been caused in 1979.

Dr Pillemer has disagreed with some of these things, but I will present my point of view. But in 1980, Mr White wrote that the - all ligaments appeared intact, which to my mind, Dr Pillemer had some things to say about what that "appeared" mean. But to my mind, that's clearly saying the knee was stable. Certainly no evidence of a PCL injury. Dr Ashwell in 1986 writes that there is no giving way, which is a typical symptom for a PCL tear. It doesn't have to happen, so that doesn't mean it wasn't one, but it's certainly not positive for there being a tear. Dr Projeska in 1991 specifically notes that the knee is stable. There is no evidence of a ligament injury. Dr Ashwell in 2006 writes that the knee was stable. Again, no evidence of ligament injury. Dr Bhattacharyya in 2006 writes that there was no cruciate ligament (indistinct). Again, so for there to have been a PCL injury in 1979, he would have had to have four different doctors all getting that wrong. You know, all examining the knee, and every single one missing a PCL tear. That, allied to the fact that the pain for the first ten years at least was at the front of the knee, which is not at all typical for a PCL injury. So apart from any issues around arthroscopy, the fact that four different doctors would all need to have been wrong, whilst it is still a possibility obviously, it surely is very unlikely. And the first doctor to have found on examination a PCL injury was as late as 2011.[156]

1. Dr Pillemer's attempts to diminish the medical evidence that Dr Harrison was incorrect in his opinion about when the tear occurred were not persuasive. At their highest, Dr Pillemer's responses amounted only to explaining why it was possible the tear was repeatedly missed by numerous doctors over 26 years, which does not enable me to be satisfied as a "positive state" that the PCL tear likely occurred on 1 May 1979. I give some examples of the evidence in this regard.
2. Dr Pillemer was taken to Dr Ashwell's report dated 31 January 1986, written seven years after the applicant was knocked down by the steer. He agreed there was no suggestion in the report of "knee instability" and no suggestion of the knee "giving way", which are indicators of a ligament tear.[157] Dr Pillemer then advanced the possibility, by way of answer to Dr Ashwell's report, that the applicant had the PCL tear even though he did not display the symptoms of knee instability because some people "have minimal symptoms. So it wouldn't surprise me if there was no history of giving way."[158]
3. This evidence was difficult to reconcile with his earlier evidence, quoted above, that "once you tear the posterior cruciate ligament ... the knee becomes unstable." In my view, the more probable and straightforward conclusion to be drawn from Dr Ashwell stating "there has not been any locking or giving way" is that there was no PCL tear.
4. The applicant's contention that the PCL tear occurred on 1 May 1979 necessarily means Dr Ashwell missed it twice and Dr Pearce once when conducting the first, second and third arthroscopies. As for why it was reasonably missed, the applicant relied on the evidence of Dr Pillemer that when conducting an arthroscopy, only the top of the PCL can be seen and that a tear lower down the PCL cannot be seen. In my view, that evidence is correct but incomplete.
5. Dr Bookless acknowledged that when conducting an arthroscopy you can "only see the anterior superior portion of [the] posterior cruciate ligament",[159] but said more is done when conducting an arthroscopy. He said -

And when you're having a look, you're actually - you prove the structures with a probe. Just a little hook on the end ... With that probe you can put it behind the ligament, you can pull on the ligament, you can push it and you get a further assessment as to whether that ligament intact.

So it's not just a case of looking .... You can also tag on that ligament and see whether it appears to be intact and, okay, theoretically you can have a ligament that has had a tear and has scarred up such that you may be sort of saying, well, it appears intact but you know, I mean this is a rare event to be in that state. ''And for him to go through all these clinical examinations, these arthroscopies and no one to mention that there was a rupture of the posterior cruciate ligament is, you know, unlikely on the balance of probabilities. Most unlikely.[160]

I was doing arthroscopies in '83. This chap's first arthroscopy was '86 and, obviously, it's becoming a more widespread thing there - procedure. You know, probing ligaments and that was, you know, one of the basic things you did as soon as you start doing arthroscopies. So, whenever you did an arthroscopy you probed it right from the word go. So, to say that wasn't done, I would suggest an unsatisfactory examination.[161]

1. Leaving aside medical incompetence, it is inherently unlikely that Dr Ashwell (twice) and Dr Pearce conducted arthroscopies on the applicant's right knee in response to the applicant's ongoing complaints of knee discomfort and yet, on each occasion, did not conduct what seems to be a simple and obvious test to verify whether the ligaments were intact or, alternatively, conducted the test and missed a PCL tear.
2. I then had the evidence of Dr Pillemer as to how the presence of a PCL tear can be otherwise tested. He referred to the "draw test", also noted by Dr Harrison, where the patient flexes their knee and hip. Dr Pillemer said:

If you've got a posterior cruciate ligament [injury], the tibia falls back on the femur, that direction. And it's a very specific finding. It is very clear. ..

If [the injury is] obvious, it takes you three seconds. If it's not obvious, you may spend 10 to 15 seconds being - to confirm it in your own mind. .. But it's a very straightforward diagnosis.[162]

1. Dr Pillemer acknowledged that in 1980 Dr White examined the applicant's knee and reported "all his ligaments appeared to be intact", which is inconsistent with a PCL tear, but took issue with Dr White's use of the term "appeared". Dr Pillemer stated -

Now, you can't make a statement like that without qualifying it. Your ligaments are either intact or they're not intact. If you're going to say appear to be intact, you've got to say, "there was a little bit of laxity but I wasn't sure, or I didn't compare to the other side". But that's not a statement that you make about ligaments in the knee. They're either intact or they are not intact. The knee is either stable or it's not stable. .. So I would say all his ligaments appeared to be intact means either he's not sure or he didn't spend a lot of time looking at it, or he didn't compare it to the opposite side. But it's not a statement that I would rely on.[163]

1. With respect, I do not interpret the word "appeared" in that way. In my view, the word "appeared" is a reference to what Dr White found on examination with, perhaps, an inference that he was not stating, categorically, that the ligaments were intact: it is what he found. If the draw test is as simple and as clear as Dr Pillemer states, it is inherently unlikely that Dr White, as an orthopaedic surgeon investigating pain and discomfort in the applicant's right knee, would report the PCL appeared intact when it was not.
2. I then had the evidence of Dr Prochazka in 1991 who noted with reference to the accident in 1979 "the knee ached and became stiff (no locking or giving way)", which appears to be a reference to Dr Ashwell's report dated 31 January 1986, and then made his own clinical findings including "knee is stable".
3. I then had Dr Bhattacharya's report on her examination of the applicant's right knee on 23 March 2006 and that "on examination of the right knee ... there was no collateral or cruciate ligament laxity." Dr Pillemer stated he had not previously seen Dr Bhattacharya's report and acknowledged her report of her examination was "inconsistent"[164] with his opinion that the PCL tear occurred on 1 May 1979, but contended PCL laxity can be tested and missed "very commonly" and "quite easily".[165] Dr Pillemer contended that just because no cruciate ligament laxity was found does not mean there was not a torn PCL at the time.[166]
4. True, the absence of cruciate ligament laxity on examination does not mean, categorically, there was not a PCL tear, but in my view it is a very strong indicator that there was no such tear. In my view, in the absence of anything to the contrary, it is likely that Dr White's, Dr Prochazka's and Dr Bhattacharya's examinations of the applicant's right knee were properly conducted and no PCL tear was found because there was no tear to find.
5. The applicant relied also on the report of Dr Pearce dated 1 December 2010 in which he states that the MRI scan confirms "further damage to the medial meniscus as well as an old posterior cruciate ligament injury, which I think relates to his original work injury." There were many difficulties with this evidence, hence the little weight that could be given to it.
6. The report from the radiologist does not state the PCL tear was "old". The basis for why Dr Pearce described it as "old" is unknown. Arguably, he was intending to distinguish it from a new or fresh PCL tear but I do not think any further inference could be drawn. In particular, whether he intended to convey the tear was a few months old, a few years old or longer or whether the time when the tear occurred cannot be ascertained is all unknown. Nothing is stated as to why Dr Pearce thought the "further damage" shown on the scan relates to his original work injury. It is unclear whether Dr Pearce was attributing some or all of the further damage, and in particular the PCL tear, to the original work injury. Dr Pearce did not give evidence in these proceedings.
7. Seemingly in an effort to obtain evidence that the PCL tear likely occurred when the applicant was knocked over and trampled by the steer, the medical experts were asked to comment on the prospect of a PCL tear depending on whether the applicant felt this way of that or the knee was positioned this way or that when he was trampled, but this was of no real value because of the absence of evidence about precisely what happened in the accident.
8. I return to the 'real question': can I be reasonably satisfied on the whole of the evidence that the PCL tear likely occurred when the applicant was struck down by the steer on 1 May 1979?
9. The period between when the applicant was struck down by the steer and when the PCL tear was found spans 31 years. Throughout that time, the applicant led an active life much of it working on his farm where any number of reported and unreported slips, accidents and falls might have occurred some of which might have led to the PCL tear. He might, or might not, have suffered the PCL tear when he fell off his quadbike. I agree with Dr Bookless that it is impossible to determine when the PCL tear occurred.[167]
10. In my view, it is not even possible to determine with any reasonable satisfaction that the PCL tear happened as a consequence of an accident, fall or some kind of trauma. Degenerative osteoarthritis was noted in the applicant's right knee in 2005. The PCL tear was not noted until 18 November 2010. This raised the prospect that the PCL tear was degenerative in the sense that it arose from the osteoarthritis.
11. Dr Bookless thought that was the most likely explanation. He and Dr Christian referred to the osteoarthritis in the applicant's left knee that developed reasonably consistently to that in his right knee leading to knee replacements in both knees (2012 and 2016) to contend the osteoarthritis was degenerative and age-related and the PCL tear occurred as part of that condition.
12. Dr Pillemer disagreed. He opined -

a posterior cruciate ligament tear doesn't occur purely from degeneration in isolation. I did say that if you've got advanced arthritis of the knee you can occasionally find tears of the chronic ligament and that's felt to be part and parcel of the whole chronic condition.[168]

1. As to whether chronic arthritis can cause a degenerative PCL tear or a PCL tear can lead to chronic arthritis, Dr Pillemer described it as "a chicken and egg thing" in the sense that it's "a mixture of the two actually", but opined in this case the PCL tear "made the arthritis come on earlier than would otherwise have been the case".[169]
2. As for why in this case the PCL tear came first and led to the arthritis, the value of Dr Pillemer's opinion collapsed when he acknowledged he was "basing it entirely on Dr Harrison's report".[170]
3. Having regard to the whole of the evidence the important aspects of which I have set out above, I am not satisfied the PCL tear occurred or likely occurred on 1 May 1979. In my view, on the evidence, it is highly unlikely that it did. When and how it did occur is not a finding I could make or needed to make.
4. Consequentially, subsequent questions about contribution and degree of contribution of the PCL tear to the applicant's osteoarthritis do not arise.
5. Where I am not satisfied of a causal link between the applicant's osteoarthritis and his employment by the Commonwealth, the decision under review will be affirmed.

I certify that the preceding 275 paragraphs are a true copy of the reasons for the decision herein of Senior Member McCarthy

........................[SGD]...................................

[1] Comcare v Simeoni [2024] FCAFC 31

[3] Applicant's written submissions dated 20 September 2024 at [3]

[4] Transcript of proceedings, 21 July 2021, page 14, line 14

[8] Applicant's statement dated 8 July 2019 at [6]

[9] Applicant's statement dated 8 July 2019 at [9]

[15] Applicant's statement dated 8 July 2019 at [12]

[20] Applicants written submissions dated 26 November 2021 at [9]

[24] Applicant's statement dated 8 July 2019 at [20] - [22]

[28] T documents, 2018/4320 at T51/71 and T125/273; Applicant's statement dated 8 July 2019 at [27]

[29] Applicant's statement dated 8 July 2019 at [27]

[30] Applicant's statement dated 8 July 2019 at [28]

[31] Applicant's statement dated 8 July 2019 at [30]

[32] Respondent's tender bundle, R4 at 83

[33] The evidence is unclear as to why Pierce wrote to Dr Bird, rather than Dr Currie, but I attach no significance to this as understand Dr Bird and Dr Currie were in the same practice evidenced by their common address

[34] Respondent's tender bundle, R4 at 13

[35] Applicant's statement dated 8 July 2019 at [33]

[36] Respondent's tender bundle, R4 at 14

[42] Applicant's statement dated 8 July 2019 at [38]

[43] Applicant's statement dated 8 July 2019 at [39]

[44] Respondent's tender bundle, R4 at 16

[45] Applicant's statement dated 8 July 2019 at [42]

[46] Applicant's statement dated 8 July 2019 at [43] - [45]

[47] Applicant's supplementary statement dated 11 November 2019 at [4] and [9]

[48] Applicant's supplementary statement dated 11 November 2019 at [6]

[49] Applicant's supplementary statement dated 11 November 2019, Annexure "A"

[50] Applicant's supplementary statement dated 11 November 2019 at [6]

[51] The timesheets were admitted by the AAT over objection and, per above, form part of the evidence before me

[52] Transcript of proceedings, 21 July 2021 at page 56, lines 18-22

[56] Respondent's tender bundle, R4 at page 72

[57] Respondent's tender bundle, R4 at page 81

[58] Respondent's tender bundle, R4 at page 80

[59] Applicant's statement dated 8 July 2019 at [42] - [43]

[62] T documents, 2018/4320 at T 65/120

[63] T documents, 2018/4320 at T 67/123

[64] T documents, 2018/4320 at T 68/124

[65] T documents, 2018/4320 at T 71/127

[67] T documents, 2018/4320 at T76/132 at 133

[68] T documents, 2018/4320 at T76/132 at 136

[69] T documents, 2018/4320 at T76/132 at 136 - 137

[85] T documents, 2018/4320 at T102/200-201

[86] T documents, 2018/4320 at T105/209

[87] T documents, 2018/4320 at T105/215

[88] T documents, 2018/4320 at T109/219

[89] T documents, 2018/4320 at T129/279

[90] The opinion that the injury ceased within a few months of the incident was expressed by Dr Bookless only. Dr Christian considered the knee pain arising from the 1 May 1979 injury continued for many years but had "settled" by 2005 or 2006

[91] T documents, 2018/4320 at T133/286

[92] T documents, 2018/4320 at T132/285

[93] T documents, 2018/4320 at T137/291

[98] Respondent's submissions on jurisdiction dated 6 March 2020 at [1.3]

[99] [1997] FCA 257

[100] [2012] FCA 388

[101] [2012] FCR 388 at [10]

[102] 2012] FCR 388 at [12]

[103] Applicant's written submissions dated 6 March 2020 at [5]

[104] 'Chimerical' is an adjective defined in the Macquarie Dictionary to mean unreal, imaginary, visionary or wildly fanciful.

[105] Applicant's written submissions dated 6 March 2020 at [11] - [13]

[106] Applicant's short written submission dated 13 April 2022 at [1] - [2]

[107] Decision of the AAT dated 1 September 2022 at [22] - [29]

[108] Applicant's written submissions in reply dated 20 September 2024 at [9]

[109] [2021] FCAFC 95

[110] [2021] FCAFC 95 at [109]

[113] The MRI scan was conducted on 18 November 2010, and the report is dated 19 November 2010:T documents, 2018/4320 at T65/120

[114] By 'orthopaedic specialist', I understood Dr Pillemer to be referring to Dr Harrison. That is confirmed in Dr Pillemer's second report dated 4 July 2019 at page 2

[116] Applicant's written submissions in reply dated 19 January 2022 at [63] - [64]

[117] Applicant's written submissions in reply dated 19 January 2022 at [80]

[118] Transcript of proceedings, 22 July 2021, page 92, line 26

[119] Respondent's outline of closing submissions dated 13 December 2021

[120] See Safety, Rehabilitation and Compensation Act 1988, section 4

[121] T documents, 2018/4320 at T118/234

[122] Comcare v Simeoni [2024] FCAFC 31 at [54]

[123] T documents, 2018/4320 at T121/249

[124] T documents, 2018/4320 at T124/265

[125] 'Idiopathic' is a medical term used to describe a disease or condition that does not have a known cause

[128] T documents 2018/4320 at T 53/80

[129] [2015] FCAFC 165

[130] [2015] FCAFC 165 at [68]

[131] [2019] AATA 2511

[132] [2019] AATA 2511 at [83] - [85]

[133] Transcript of proceedings 22 July 2021 at page 93, lines 25-43

[134] The word "them" can be reasonably understood from the earlier passages in the transcript as a reference to all contemporaneous medical reports and test results such as x-rays

[135] Transcript of proceedings 22 July 2021 at page 98, lines 5 - 13

[136] Transcript of proceedings 22 July 2021 at page 90, lines 4 - 5

[137] T documents 2018/4320 at T76/137

[138] [2023] HCA 29

[139] [2001] NSWCA 305 at [59]

[140] [2001] NSWCA 305 at [67]

[142] [2001] NSWCA 305 at [81]

[143] [2018] AATA 963

[144] [2018] AATA 963 at [48]

[145] [2018] AATA 4096

[146] [2018] AATA 4096 at [93]

[147] Administrative Review Tribunal (Expert Evidence) Practice Direction 2024 dated 9 December 2024

[148] Transcript of proceedings 22 July 2021 at page 99, lines 11-15

[149] Dr Pillemer's report dated 28 November 2018 at page 3

[150] Transcript of proceedings 11 November 2021 at page 99, lines 20 - 24

[151] Transcript of proceedings 11 November 2021 at page 68, lines 12 - 14

[152] Transcript of proceedings 11 November 2021 at page 154, line 27

[153] Transcript of proceedings 11 November 2021 at page 154, line 28

[154] Transcript of proceedings 11 November 2021 at page 154, line 34

[155] Transcript of proceedings 11 November 2021 at page 177, lines 18-19

[156] Transcript of proceedings 11 November 2021 at page 184, lines 2 -26

[157] Transcript of proceedings 11 November 2021 at page 95, lines 10 - 21

[158] Transcript of proceedings 11 November 2021 at page 95, lines 25 - 29

[159] Transcript of proceedings 11 November 2021 at page 154, lines 21 - 22

[160] Transcript of proceedings 11 November 2021 at page 141, line 31 - page 142, line 2

[161] Transcript of proceedings 11 November 2021 at page 144, lines 5-

[162] Transcript of proceedings 22 July 2021 at page 84, lines 16 - 33

[163] Transcript of proceedings 22 July 2021 at page 82, lines 20 - 29

[164] Transcript of proceedings 22 July 2021 at page 87, lines 13-16

[165] Transcript of proceedings 22 July 2021 at page 87, lines 25-26

[166] Transcript of proceedings 22 July 2021 at page 87, lines 27- 30

[167] Transcript of proceedings, 11 November 2021 at page 161, lines 33 - 36; Bookless report dated XXX at XX

[168] Transcript of proceedings 22 July 2021 at page 92, lines 25-29

[169] Transcript of proceedings 22 July 2021 at page 93, lines 17 - 22

[170] Transcript of proceedings 22 July 2021 at page 93, line 29