Appeal - Whether adequate reasons for decision as to findings of fact regarding causation - Findings as to credit and medical issue - Findings open on the evidence - Adequacy of reasons considered in context of limited extent of disputed evidence and submissions made by appellant at trial - No denial of justice - Appeal dismissed - Workers Rehabilitation and Compensation Act 1986.

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Barber v South Australia Police Department [2000] SAWCT 185

The Smith's Snackfood Company Ltd v Zienkiewicz [2002] SAWCT 48

Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48; (2003) 200 ALR 447

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430

Conroy's Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd [2007] SASC 76.

Park v Brothers [2005] HCA 73

Edge v North Western Adelaide Health Service (Lyell McEwin Campus) [2004] SAWCT 36

Lavers v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (RW Miller & Co (SA) Pty Ltd) [2004] SAWCT 44

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 96 ALR 354

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29

Dahl v Grice [1981] VicRp 50; (1981) VR 513

State of New South Wales trading as New South Wales Department of Agricultural v Allen [2001] NSWCA 141

EMI (Australia) Ltd v Bes (1970) 2 NSWLR 238

Pham v Workers Rehabilitation and Compensation Corporation and Wingfield Heat Treaters [1995] SASC 5056

Gardiner v Land Agents Board (1976) 12 SASR 458

McCUSKER DPJ:

1 I have had the advantage of reading the decision of the majority. I agree with their conclusion that the appeal must be dismissed. I agree with much of their analysis. But I wish to add further reasoning for my conclusion.

2 The learned Deputy President found that the worker's employment contributed to or advanced the state of his cervical myelopathy (judgment par 26). Her Honour's conclusion was predicated upon two findings. The first was a preference for the worker's evidence as to his work activities and the repetitive strain thereby placed on his spine. The second was the preference for the expert opinion of Professor Nigel Jones (judgment pars 8, 13). It is over these two issues that parties most often disagree in cases concerning causation in the workers compensation jurisdiction. I mean by that there is nothing particularly remarkable about what had to be resolved in this case.

3 Appeals to this Tribunal are limited to questions of law (s 86(1)). The appellant contends only one question of law. That is a failure to provide adequate reasons for decision. The inadequacies are stated in the appellant's Outline as:-

"8.1 Given the complexity of the medical issues, and the breadth of the evidence, the reasons are too brief.

8.2 The reasons state arbitrary findings as to credit and the preference of witnesses.

8.3 The reasons do not deal with the evidence in any meaningful sense, ie whether certain evidence is to be accepted or rejected.

8.4 The reasons fail to provide either party with an understanding as to the basis for the decision."

4 It is agreed that a failure on the part of a tribunal exercising judicial functions to give reasons for its decision will constitute an error of law. This is equally so where the right of appeal is limited to questions of law: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In that case McHugh JA stated (at 278):-

"... it is no longer correct to say that a judge has no duty to give reasons unless there is a right of appeal against his decision. If it was, an ultimate court of appeal would have no duty to give reasons. In my opinion, the duty rests on a wider basis: its foundation is the principle that justice must not only be done but it must be seen to be done."

5 The adequacy of reasons must depend on the particular case. The most important determinant will be the nature and extent of what is in dispute. If at the close of a case there is more than one conclusion open it is usually necessary to give some explanation for the preference of one conclusion over another. However in the case of disputed medical evidence, to fulfil a minimum legal standard the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: Soulemezis at 273 - 274 (Mahoney JA), 281 - 282 (McHugh JA). That is save in the case of a particularly controversial issue where a more expansive explanation would be required: viz Barber v South Australia Police Department [2000] SAWCT 185.

6 When examining a trial judge's reasons for decision, the Full Tribunal is required to adopt a constructive approach: - The Smith's Snackfood Company Ltd v Zienkiewicz [2002] SAWCT 48. "A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case": Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48; (2003) 200 ALR 447 at par 62.

As observed by Meagher JA in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444, examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. The statement of reasons must be looked at as a whole and the material inadequacies identified and considered: see also Conroy's Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd [2007] SASC 76.

7 The adversarial method provides the framework indicating the matters about which the parties are in contest. That goes to submissions and concessions by counsel, explicit and implicit: Park v Brothers [2005] HCA 73 at par 34. These observations are consistent with the previous statements of this Full Tribunal. They are hardly controversial: see Edge v North Western Adelaide Health Service (Lyell McEwin Campus) [2004] SAWCT 36 at pars 42, 58 - 63; Lavers v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (RW Miller & Co (SA) Pty Ltd) [2004] SAWCT 44 pars 33 - 36, 80. All these matters require consideration when determining the adequacy of reasons.

8 The appellant attacks the learned Deputy President's reasons for preferring the evidence of the worker as to his work activities. That was important because Professor Jones' opinion was predicated on the reliability of what the worker said: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844. The learned Deputy President made the following findings in this regard:-

"8 I have no hesitation in accepting Mr Deo as a truthful witness. I have preferred his evidence over the witnesses for Woolworths because only Mr Deo was able to say what duties he did perform, rather than what duties he was supposed to perform as prescribed by the occupational therapist, Ms Pattison and the warehouse manager, Mr Young.

9 Mr Richter argued that Mr Deo's real complaint was about the unfair treatment he received from two of his immediate supervisors. It is clear from the evidence that Mr Deo was unhappy about the treatment he received but this does not affect the validity of his workers compensation claim or the truthfulness of his evidence regarding his duties."

9 Her Honour implicitly rejected the contention the worker's primary motive for his complaints was due to difficulty he had with his immediate supervisors. Her Honour's preference was because the worker was in her view more likely to know what he did at work than others who may have had to depend on limited occasion or impression. Also in final submissions before the learned Deputy President the appellant's counsel appears to concede there may have been neck extension occurring in the workplace (tr 317) though he did not concede the extent of it and there was also clearly similar activity occurring in the domestic environment. He also submitted the majority of the worker's time was in what was called "high rise". The worker had not been used in the whole range of duties within the distribution centre. In particular he very rarely worked in liquor (tr 317). Finally he submitted the type of duties carried out in the warehouse were those described in Exhibit A3 (tr 318). These he contended do not reveal a sufficient picture of repetitive neck extension as required by Professor Jones' hypothesis (tr 322). The gravamen of the appellant's case at trial was that the available evidence of work contribution should be viewed as insufficiently persuasive and the condition was just as likely to have "happened spontaneously" and being a secondary disability the worker had failed the causal link required by s 30 (tr 325, 336, 337). But as will be appreciated the appellant's case was dependent on rejection of the worker's evidence or at least making allowance for exaggeration.

10 The worker's counsel contended even if the worker's domestic activities contributed to the deterioration of the cervical myelopathy there was still the question of whether the employment also contributed (tr 328). Regarding the nature and extent of the duties performed by the worker, counsel submitted the Tribunal should prefer the worker's evidence where it conflicted with Young and Pattison, though he submitted there was not a great degree of conflict in the various accounts (tr 331). However he pointed to the complaint made to Dr Agarwal, the worker's family doctor, of having difficulty with performing his work leading to the letter to the warehouse manager from that doctor dated 27 May 2003. That is more than six months before the incident of 20 January 2004. Most of the complaints were about the difficulty of above chest arm movements, a feature of the warehouse tasks (AB Vol 2 p 362). This was important contemporaneous evidence. He also pointed to "central handout" task which of necessity as the height of the boxes reduced to the bottom of the pallet required the worker to engage in extension. It was a task he had done every day since 1997, (tr 332). He pointed to the fact that Mr Young was in charge of 250 employees and was not in practical terms able to allocate the worker's tasks on a day-to-day basis. Lastly it was undisputed the worker was of small statue (5ft 4in).

11 The majority decision sets out the relevant parts of the testimony of Pattison and Young (pars 34 - 42). I will not repeat them. As described therein Ms Pattison did not in fact challenge the worker's description of his duties. She was not in a position to do so. Mr Young also conceded the worker's description of his duties on three other occasions. Yet the appellant says the reasoning provided in the judgment denies it an understanding of the preference for the worker on the issue of credit. The context of this contention is important. At the outset of the appeal the appellant did not disagree with the proposition that the learned Deputy President's findings were open to her. It did not seek to argue the findings were without the requisite basal evidential material. I have set out the above to describe the basic circumstances and context so that what the learned Deputy President was being asked to decide can be understood.

12 It is true the learned Deputy President dealt with the issue of credit shortly. And it is clear that the worker's credit was at least to some degree being challenged. But courts recognise forming a judgment on credit involves somewhat inscrutable factors and is influenced by matters of broad impression and assessment. As the majority said in Edge's case (par 52) often assessments of truthfulness and reliability are the result of the accumulative effect of a number of perceived incongruities and perceived contradictions. There is certainly no single touchstone for courts to guide them in deciding questions of credit. That is save the employment of a critical faculty in respect to all witnesses. In that there is no more reason to assume that the exempt employer's witnesses are telling the truth than that the worker is not. The fact that the task of making findings of credit is beset with uncertainty is borne out by learned discussion: see Evidence, Proof and Probability, Richard Eggelston (1978) Chapter 12. The subtle influence of demeanour beyond easy articulation cannot be forgotten or ignored in the appreciation of this process: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 96 ALR 354 per McHugh J at 363, though this must be understood with the limits placed on reliance upon demeanour stated by the Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at par 31. The learned Deputy President could have dwelt longer on the issue but on the key question of the worker's activities her duty to explain her reason was satisfied by what she said. A distinction needs to be made between a conclusion of fact and the reasons for drawing that conclusion. Here the conclusion was the reliability of the worker's evidence on the issue of what work he did. The reasons for drawing that conclusion implicitly involved the impression the worker's presentation in the witness box made on her Honour, as well as the fact he was in the best position to know what work he did.

13 I turn to Her Honour's preference for the expert opinion of Professor Nigel Jones. I reiterate the observation of the judges in Soulemezis that in respect of disputed medical evidence the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment. In his evidence Professor Jones described the condition of cervical myelopathy. He described the condition as affecting the spinal cord and related either to degenerative change in the neck or an acute disc prolapse pressing on the cord (tr 260). That pressure causes damage within the spinal cord and that in turn creates problems below the level of the damage in the nature of numbness or weakness, stiffness in the legs or if higher up the arms, and difficulty with fine movements, numbness and clumsiness. Most of the time it is of gradual onset but sometimes it can come on more acutely. This is particularly so if there is a disc prolapse or an injury, especially something that causes extension of the neck because extension of the neck further narrows the spinal canal. The neck extension can affect the cervical myelopathy in two ways. Firstly by minor neck extensions repetitive over a long period of time eventually adding to a significant problem. Secondly an acute episode of excessive extension commonly seen if someone has a fall or maybe hits their chin.

14 Professor Jones then gave the following testimony (tr 261):-

"Q Mr Deo has given evidence that, in his day-to-day work as a storeperson at Woolworths from 1997 through to early 2004, he was required to do a lot of lifting of boxes and product from shelves, lifting product from pallets - weights would be variable from very small weights of five kilograms up to heavy weights of perhaps 20 kilograms - and that part of his duties from time to time involved stooping down to pull across low boxes in low-lying areas, and sometimes he would be required to raise his arm above shoulder level to take product of variable weights from shelves but also to extend his arm out to move boxes forward and twist and to place boxes onto tables. All of those movements that he was required to perform, what impact would they have on the degenerative process in the cervical spine and, in particular, the cervical myelopathy condition?

A As far as the degenerative process goes, that goes on with life. You know, degeneration tends to get worse as you get older, mostly regardless of what you're doing. So I think it's unlikely that that sort of action would have made a significant difference to the degree of degeneration in his neck. As far as the cervical myelopathy goes, certainly lifting heavy weights can increase the pressure in a disc, make it more likely that a disc can prolapse, but probably neck extension would be more relevant than any of the others. So that if in his work he's required to do a lot of things above shoulder height, so he'd be extending his neck or low down where he has to bend over and extend his neck to look into cupboards to get things out, doing that over and over could certainly aggravate cervical myelopathy in the presence of an underlying stenosis or narrowing of the spinal canal."

15 Professor Jones then dealt with the acute aspect of the matter in the following terms (tr 261, 262, 263):-

"A I saw him in July 2005 for the first time, and at that time his MRI scan ... showed narrowing at C5-6 and at C6-7. ... it also showed signal change within the spinal cord. What that means is that there has been some damage to the spinal cord. Once we see signal change in the spinal cord itself, that's a reflection of some permanent damage in the spinal cord. I thought that the signal change in the spinal cord was excessive for the amount of the narrowing that he had, and the signal change was opposite the C5-6 disc space. On the MRI scan the C5-6 disc wasn't protruding significantly, but it was my impression that some time prior to that he had suffered a C5-6 disc prolapse which had caused compression of the spinal cord at that level, resulted in the signal change in the cord and then the disc prolapse had gradually resolved, as they do - it tends to shrink as the water in the disc gets reabsorbed - resulting in the appearance on the MRI that I saw with a disc that's not protruding significantly but a fairly large dense area of signal change in the cord directly opposite the disc. ... My recollection of Mr Deo's scan was that the signal change looked to be chronic, reflecting permanent injury in the cord.

Q Is that consistent with ongoing weakness in the legs?

A Absolutely.

...

Q As I understand your evidence so far, you believe that there was an acute event at some point in the past that has caused the damage to the spinal cord?

A That's my feeling. From the MRI findings and the examination, I think it's the most likely thing. I can't say how long in the past, but sometime prior to when the MRI scan that I saw on 12 July was done.

Q Mr Deo's evidence is that on 20 January 2004 he went to work and he was involved in some work moving boxes. He was picking orders - it was a hot day - on the floor. It involved him moving boxes of product. He said that after doing that in the morning, before the morning smoko, he was going to smoko and required to travel up some stairs to the smoko room when he felt the onset of weakness in his legs. He went to the smoko room and went to get up from sitting down at smoko, and experienced the onset of pain in his neck, back, the weakness in his legs, the feeling of going to fall over and weakness in his arms. Is that history consistent with a disc prolapse of the cervical spine?

A Yes.

Q Is that history consistent with chord damage of the nature that you've considered to be present with Mr Deo?

A Yes.

Q The work that he was doing that morning of moving boxes, involving moving boxes from the floor, moving boxes with his right arm, is that work likely to have contributed to the onset of a disc prolapse at that time?

A It's possible. Just about anything can contribute to a disc prolapse. It may be a fairly minor thing that finally causes a disc to prolapse, so I can't say, yes, it definitely was or it definitely wasn't."

Professor Jones thought complaints of low back pain would not be related (tr 264).

16 Professor Jones went on to accept it was the manner in which the spine was used that affected this condition. Any number of activities would fit the bill including a list of domestic activities put to him by counsel (tr 266). He stated:-

"Q Going even further, would I be right in saying, doctor, that that MRI, not only is it longstanding degenerative changes but they were particularly severe?

A Yes, I think it would be reasonable.

Q And that given its lengthy nature and its severity, it could become symptomatic without any type of trauma?

A That depends a bit how you define trauma. I think it probably needs repetitive mild trauma to the spinal cord, which could just be day-to-day activities or a more significant acute injury."

17 In final submissions the appellant's counsel conceded that the medical witnesses were in agreement about most things (tr 318). Counsel then further conceded Professor Jones was the one, "true expert in this field" of the doctors appearing in the case. And he was the one witness "who appeared before you who can speak authoritatively on matters in relation to this" (tr 320). What counsel ultimately submitted was that the evidence about the worker's condition, when understood and evaluated in the way he suggested, was equally balanced between it having been employment contributed as it was with being a degenerative condition unaffected by the work. He referred to a statement from Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 that where the whole of the evidence of contribution by employment does not rise above the level of possibility, either alone or cumulatively, such the inference of causation is not open (pars 79, 80).

18 This is not however an apt description of the state of the evidence before the learned Deputy President. Professor Jones' evidence was to the effect that the link in the nature of an aggravation of the condition could be found in the circumstances described to him. This conforms with the sense in which the word "possible" is employed. In Dahl v Grice [1981] VicRp 50; (1981) VR 513 at 522 Gobbo J stated:-

"The review of the authorities leads me to reject the appellants' argument that in matters of bodily health, even outside common experience, it is incumbent on a plaintiff to prove the causal connection to the requisite degree of probability by evidence from the expert. It is plain that in such matters the courts have recognized that a possible cause may be elevated to a probable cause. There are a number of reasons why it is undesirable that the opinion as to causal connection be stated in terms of probabilities. In the first place, this is the role of the tribunal of fact and the ultimate task rests with the judge or jury, as the case may be. Secondly, it is inadmissible in the ordinary course for an expert to give evidence in a form that takes up the very ultimate issue that is the responsibility of the tribunal of fact. Though there are many exceptions in practice to the general rule as to not asking questions that by their terms call for an answer to the ultimate issue, it is a rule that is soundly based in its endeavour to reserve to the tribunal of fact the actual responsibility for the resolution of the ultimate issue. A third consideration is that there is inevitably much difference in the views of expert witnesses as to what constitutes a probability as opposed to a possibility, whether in terms of a particular case or simply as a matter of logic. There is the obvious danger that an expert when asked to provide an opinion as to whether a causal link exists may do so in terms of scientific proof that may be altogether too exacting for the degree of satisfaction necessary in a legal proceeding."

19 The preference for Professor Jones in the circumstances needed minimal explanation. It was as much as invited by the appellant. In those circumstances it was adequate for the learned Deputy President to merely note her preference for Professor Jones as she did (judgment par 13). Had she not preferred him in all these circumstances there may have been some more adequate explanation needed. There was no denial of justice or such as to leave the appellant ignorant of how the conclusion could have been reached on either of the key findings in the case. This was not a "complex" case in all the circumstances. It warranted reasons commensurate with that fact. I conclude each of the attacks in par 8 of the Outline must be rejected.

20 The appeal is dismissed.

GILCHRIST DPJ:

LIESCHKE DP:

21 This appeal concerns the adequacy of the reasons published in connection

with a decision to reverse a determination rejecting a claim for compensation.

22 The case was one that is not unusual in this jurisdiction. It concerned a worker who had a medical condition that could have been caused by any one of a number of things, including contribution from work and which may have been caused by nothing at all. Invariably in such cases medical opinions differ as to what extent, if any, work has played its part. These cases bring into focus the difference between causation in law and causation in medicine. See: State of New South Wales trading as New South Wales Department of Agricultural v Allen [2001] NSWCA 141 at par 2 and 3 per Priestly JA[1].

23 Typically counsel for the worker will remind the Tribunal that in light of this, the medical evidence is not decisive. Reference is often made to the passage from the judgement of Herron CJ in EMI (Australia) Ltd v Bes (1970) 2 NSWLR 238 at 242:-

"...Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try".

24 Sometimes counsel for the worker will impress upon the Tribunal the temporal association between work and commencement of symptoms and will invite it to reflect upon the often cited passage from the judgment of Olsson J in Pham v Workers Rehabilitation and Compensation Corporation and Wingfield Heat Treaters [1995] SASC 5056 at pars 30 and 31. In particular its reference to "the presumptive inference which the relevant sequence of events would naturally inspire in the mind of any common sense person uninstructed in pathology" and its acknowledgement that it is permissible to "then give effect to it in terms of probability, in absence of conclusive medical evidence denying that conclusion."

25 It will be apparent that in such cases an assessment of the reliability of lay evidence concerning work activities and the asserted sequence of events will be of critical importance because those findings or the inability to make them will be crucial in determining the fate of the case. Cases will fail if the foundation facts cannot be proved.[2]

26 In this case the worker is the respondent, Suchin Deo. At all relevant times he was employed by the appellant, Woolworths (South Australia) Pty Ltd. The medical condition that he claimed to be compensable is cervical myelopathy. This is a spinal condition that relates to degenerate changes in the neck or a disc prolapse that puts pressure on the spinal cord.

27 Mr Deo's case was that either as a result of an incident that happened at work on 20 January 2004 or as a result of his employment generally the condition was caused or contributed to by his work such that his present incapacity for work and his need for medical treatment can be said to result from a compensable disability for the purposes of the Workers Rehabilitation and Compensation Act 1986.

28 In support of his claim Mr Deo gave evidence and called oral evidence from his general practitioner, Dr Shyan Agarwal, Dr David Cullum and Dr John Meegan, occupational physicians, and Professor Nigel Jones, a neurosurgeon, to whom he had been referred by a neurologist, Dr Heather Waddy, upon referral to her from Dr Agarwal.

29 Mr Deo, who is 5 foot 4 inches tall and who suffered from polio as a child, resulting in loss of majority use of his left arm argued that his employment duties at Woolworths were arduous and contributed to the progression of the degeneration of his spine.

30 Mr Deo's physical characteristics created some challenges in his work as a store person at Woolworths. In his evidence he spoke of operating pallet dispensers, lifting and stacking cartons and shrink-wrapping orders that had been placed on the pallets. He contended that the shrink-wrapping was awkward work that involved using both of his arms, his head, neck and shoulders. He described loading stock onto shelves. He said that this was heavy work. He explained that the top shelf was above shoulder height and that when loading a carton onto it he needed to place the carton onto his shoulder and push it up when the edge of the carton was on the lip of the shelf. He described this as heavy repetitive work. He explained his duties in making up orders, or reaching above shoulder height and away from his body, of squatting and carrying heavy loads.

31 He said that his work caused him aches and pains but initially he did not complain because he was worried that he would be rostered to work on weekends, which he wanted to keep free. He said that he felt that some of his supervisors favoured others at work and that he was given heavier work and less variety than other workers.

32 He eventually did complain to his supervisor and was advised to obtain a letter from his doctor. This culminated in Dr Agarwal writing to Woolworths in May 2003 explaining Mr Deo's difficulties and suggesting that he not be assigned tasks that he found difficult.

33 Mr Deo argued that it was more probable than not that on 20 January 2004 while he was at work he suffered a disc prolapse as a result of the duties that he was then undertaking. He said that he was picking up a number of heavy orders when he experienced pain and weakness in both of his knees, his lower back, and his upper back across the top of his shoulders and neck. He said that he could recall his knees and legs feeling weak. He said that he went to see his supervisor who sent him to first aid and then he went home after finishing work. Following this, he went onto light duties and was placed on a return to work program. He said that he has continued to suffer from lower back pain, pain and weakness in his knees as well as neck and shoulder pain ever since.

34 Woolworths called Ms Marilyn Pattison, an accredited occupational therapist, contracted by it to provide rehabilitation and return to work services, Mr Mark Young a long-standing employee of Woolworths who during the period between 1997, when Mr Deo commenced work with Woolworths and 2003, claimed to have developed a working relationship with him in his managerial role. It also called Dr Mark Awerbuch, rheumatologist. It did not, however, call Dr Robert Hall, neurologist, despite indicating in the Trial Orders some reliance upon his report.

35 In a statement that Ms Pattison filed in connection with these proceedings she explained that Mr Deo has a polio related disability of his left hand that had resulted in significantly reduced function. She said that she understood that he was employed by Woolworths under a scheme to encourage employers to employ workers with a pre-existing disability.

36 Contrary to what Mr Deo had to say, she spoke of her understanding that Mr Deo's supervisors looked after him with regards to the very heavy tasks and had generally not required him to perform heavy repetitive tasks. She had been asked to assess Mr Deo in February 2002 shortly after liquor had been introduced to the warehouse to ascertain whether he was able to perform liquor backfill. She said at the time she advised Woolworths that as liquor backfill could include lifting up to 21 kgs on a repetitive basis she strongly recommended that Mr Deo did not undertake this activity due to his pre-existing condition.

37 The issue of Mr Deo's involvement in liquor backfill was pursued with Ms Pattison in oral evidence:-

"During that period of time when Mr Deo was performing duties from time to time in liquor backfill, did you not notice during that period of time, that four-year period, that he was struggling with those duties?---As I explained earlier, liquor was new in the warehouse and so it had only just come into the warehouse, or had only been in the warehouse for a short time. When Mr Deo spoke to me in 2002 there was no liquor.

Mr Young said today in his evidence that the liquor started to arrive in about 1998-1999, and that by 1999-2000 it was well and truly part of the store work?---Obviously my recollection is incorrect.

I'm just interested to know to what extent you would have been able to observe Mr Deo doing that sort of work, and to intervene, and why that didn't occur in the sense that it was Mr Deo that brought this up - that brought your intervention into place in early 2002?---Yes, certainly. My role in the warehouse with Woolworths was to work primarily with the people who were on workers compensation, so I worked primarily with people who were referred to me, because they had a work-related injury. Workers could come to me - could raise issues with the supervisors, or they could speak to me or speak to the rehabilitation consultant if they were experiencing difficulties, but we didn't, I guess, arbitrarily just go and watch workers working, because we were kind of caught up with the workers comp workers."

...

"When you say that you had the impression that supervisors looked out for him, what formed the basis of your impression? Were you told that they were looking out for him?---That's what Mr Deo told me.

Mr Deo told you?---Mm.

Given that he was being asked to perform the liquor backfill, did you think that despite what Mr Deo told you they were looking out for him?---Sorry? Can you repeat the question?

Well, he was being asked to do liquor backfill. Did that give you the impression, aside from what Mr Deo told you - the fact that he was being asked to do the liquor backfill, did that give you the impression that they were looking out for him?---I think by asking him to undertake that task it may well have been requested, perhaps, without necessarily understanding totally Mr Deo's position, and I think that at that time I would have hopefully given the supervisors the benefit of the doubt, but it was sufficient for me to be concerned to offer that advice." [3]

38 On 25 September 2002 Mr Deo sustained an injury to his back in respect of which he sought and obtained compensation pursuant to the Act and as a consequence, Ms Pattison was engaged to provide rehabilitation services in respect of his low back injury. She said that following her provision of rehabilitation services to Mr Deo in October 2002 she placed restrictions on the work that he could undertake.

39 Ms Pattison did not challenge any of Mr Deo's descriptions of the actual duties that he performed.

40 Mr Young spoke of looking after Mr Deo and not assigning him to areas of repetitive lifting. Mr Young's written statement records his awareness of Mr Deo's pre-existing disability and his attempt to look after Mr Deo and to assign him to less physically demanding areas for the majority of the time.[4] Despite this he became aware that Mr Deo reported physical difficulties with some of the back-till tasks relating to liquor and lifting items onto the top shelf. Mr Young described a supervisory structure which included three supervisors who worked under him to control the daily operations for the shift. He spoke of relying upon the supervisors to assist in that regard.[5] Whilst Mr Young expressly said he was aware of an ongoing basis of what Mr Deo was doing[6] he qualified this statement under cross-examination. He would not rule out the possibility that some of his supervisors may have taken a slightly negative attitude to Mr Deo as someone who was not full-bodied capable.[7] Mr Young didn't want it to be seen that Mr Deo was being treated differently to the rest of the workforce.[8] He admitted that whilst he would not have allocated Mr Deo to floor orders he acknowledged that other supervisors might have done so. He then conceded that other supervisors might not have allocated tasks to Mr Deo in the same way he would have preferred them allocated.[9]

41 Mr Young specifically deferred to Mr Deo's description of some duties.

"Q. So just on the allocation of work, whilst you said that you would have preferred or would have used Mr Deo in certain areas and not in others, that is in high-rise and CLS - split case CLS - you wouldn't disagree with Mr Deo's evidence that he was allocated to all areas of CLS, including the batch pick in CLS, central handout, all areas of central handout from time to time, as well as high-rise and on occasions sortation? You wouldn't disagree with that, could you?

A. I couldn't disagree with what Suchin has said there, no. I can only agree with how I was managing Suchin when he was working under me, but I couldn't disagree with what he was saying."[10]

42 After deferring to Mr Deo's version of his actual duties on three further occasions under cross-examination, Mr Young stated that he could not vouch for the other supervisors as being of the same awareness as he had.[11] The appellant called no evidence from any supervisors subordinate to Mr Young.

43 Counsel for the appellant made no submission before the learned Deputy President as to any remaining conflict between the evidence of Mr Young and Mr Deo, which appears to have been appropriate given the concessions made by Mr Young.

44 Woolworths' counsel, when cross-examining Mr Deo, put to him that his duties at Woolworths were not as onerous as he suggested. It was also put to him that it was not pain or discomfort that prompted his obtaining the letter in May 2003 from Dr Agarwal but rather his desire to address conflicts that he had had with some of his supervisors.

45 Over the course of cross-examination it was put to Mr Deo that on various days in 1999 he played soccer and in a diary that he kept there were references such as "body pain because of yesterday's soccer"; "feel tired because of yesterday's soccer"; "didn't go to work because of body ache"; "felt tiredness because of soccer".

46 It seems that Mr Deo's participation in soccer was not an isolated activity. He said that he had been playing soccer for pretty much all of his life and in 1999 was playing in tournaments and he regularly trained. He said that he was a striker and on occasions headed the ball. His participation in soccer continued in 2000, 2001, 2002 and 2003.

47 It will be apparent that Woolworths was challenging Mr Deo's reliability as a witness and was contending that he was overstating the impact of his work upon his body and was understating the impact of non work related activities.

48 The importance of resolving these issues is made clear from the following exchanges with Professor Jones.

49 Professor Jones was asked:-

"Mr Deo has given evidence that, in his day-to-day work as a storeperson at Woolworths from 1997 through to early 2004, he was required to do a lot of lifting of boxes and product from shelves, lifting product from pallets - weights would be variable from very small weights of five kilograms up to heavy weights of perhaps 20 kilograms - and that part of his duties from time to time involved stooping down to pull across low boxes in low-lying areas, and sometimes he would be required to raise his arm above shoulder level to take product of variable weights from shelves but also to extend his arm out to move boxes forward and twist and to place boxes onto tables. All of those movements that he was required to perform, what impact would they have on the degenerative process in the cervical spine and, in particular, the cervical myelopathy condition? ---"

"As far as the degenerative process goes, that goes on with life. You know, degeneration tends to get worse as you get older, mostly regardless of what you're doing. So I think it's unlikely that that sort of action would have made a significant difference to the degree of degeneration in his neck. As far as the cervical myelopathy goes, certainly lifting heavy weights can increase the pressure in a disc, make it more likely that a disc can prolapse, but probably neck extension would be more relevant than any of the others. So that if in his work he's required to do a lot of things above shoulder height, so he'd be extending his neck or low down where he has to bend over and extend his neck to look into cupboards to get things out, doing that over and over could certainly aggravate cervical myelopathy in the presence of an underlying stenosis or narrowing of the spinal canal."[12]

50 Later Professor Jones was asked: "As I understand your evidence so far, you believe that there was an acute event at some point in the past that has caused the damage to the spinal cord".

A. That's my feeling. From the MRI findings[13] and the examination, I think it's the most likely thing. I can't say how long in the past, but sometime prior to when the MRI scan that I saw on 12 July was done.

Q. Mr Deo's evidence is that on 20 January 2004 he went to work and he was involved in some work moving boxes. He was picking orders - it was a hot day - on the floor. It involved him moving boxes of products. He said that after doing that in the morning, before morning smoko, he was going to smoko and required to travel up some stairs up to the smoko room when he felt the onset of weakness in his legs. He went to the smoko room and went to get up from sitting down at smoko, and experienced the onset of pain in his neck, back, the weakness in his legs, the feeling of going to fall over and weakness in his arms. Is that history consistent with a disc prolapse of the cervical spine?

Q. Is that history consistent with cord damage of the nature that you've considered to be present with Mr Deo?

51 In cross-examination Professor Jones was asked about Mr Deo's sporting activities. He was asked:-

"The playing of sport, doctor: is that the sort of thing that could affect this type of condition?

Q. In particular, Mr Deo had a history of playing soccer during the period of 1998 to 2002, and he gave evidence earlier this week that he was a striker and he would from time to time head the ball and he would play games of soccer, either eleven a side or seven a side. Is that the type of activity that could cause the type of trauma you spoke about?

52 He was then asked in cross-examination some questions about the incident of 20 January. He was taken to the worker's account of the incident and was then asked:-

"What I'm effectively asking you, doctor, is: there is no suggestion that this man was for example lifting a box and suddenly went, 'Ouch, my back really hurts. I felt something go.' Absence some specific trauma, you're not in a position to comment authoritatively on the cause of this man's myelopathy?

A. No. I mean, I've got no magical way of looking in the past and seeing what happened. I can only comment on what I see there."[16]

"And as far as getting myelopathy is concerned, a person who has degenerate change and who does active things, like lives a fully active life such as sport, mowing lawns, doing all those domestic things, can get a myelopathy quite readily.

A. Quite readily. Yes, anybody can get cervical myelopathy from degenerate change. You don't have to have done anything in particular. You don't have to have any specific injury. It can just gradually come on."[17]

54 The learned Deputy President dealt with Mr Deo's credibility and the conflict between his evidence and that of Mr Young and Ms Pattison as follows:-

"Mr Deo gave evidence about the range of packing and picking duties he performed at the Woolworths distribution centre. He was required to do repetitive bending, reach above shoulder height, reach away from his body, squat and carry heavy loads. He used his weak left arm to support and balance as he handled the goods with his right arm. In May 2003 he consulted his general practitioner, Dr Argawal, who provided him with a letter to Woolworths regarding the difficulties he was experiencing with some of his work.

I have no hesitation in accepting Mr Deo as a truthful witness. I have preferred his evidence over the witnesses for Woolworths because only Mr Deo was able to say what duties he did perform, rather than what duties he was supposed to perform as prescribed by the occupational therapist, Ms Pattison and the warehouse manager, Mr Young."[18]

55 On the issue concerning Mr Deo's outside of work activities she wrote:-

"I accept that Mr Deo's physical activities outside of work would also have aggravated his condition. That does not of itself prevent his claim from succeeding. In my view it is more likely than not that those activities such as playing social soccer games, cleaning his car and other household tasks contributed to his condition to a lesser extent than his work as a storeman. As a full time worker from 2001 he would have spent more time engaged in his work than he did engaged in those other activities."[19]

56 As to the incident of 20 January 2004 she wrote:-

"Mr Deo had completed two heavy picking orders, and then during the third order he experienced aches and pains in his body before his smoko break. It was a hot day. He felt the onset of weakness in his knees and legs as he walked up the stairs to the smoko room. When he went to get up after the smoko break he experience the onset of pain in his neck, back, the weakness in his legs, the feeling of going to fall over and weakness in his arms. This was the first time he experienced the feeling of weakness in his legs.

In my view, in light of the evidence of Mr Deo and the medical evidence that I have referred to it is more likely than not that the moderately heavy picking and packing work he performed over a period of years as well as the specific duties he performed on 20 January 2004 contributed to the disc prolapse noted by Professor Jones.

It is also more likely than not that the cervical myelopathy became symptomatic on 20 January 2004, given the history of store work and the first onset of weakness in the legs that day and the evidence of Professor Jones that "...doing that over and over could certainly aggravate cervical myelopathy in the presence of an underlying stenosis or narrowing of the spinal canal" (tr 261)"[20]

57 This led the learned Deputy President to conclude:-

"In my view, in light of the evidence of Mr Deo and the medical evidence that I have referred to it is more likely than not that the moderately heavy picking and packing work he performed over a period of years as well as the specific duties he performed on 20 January 2004 contributed to the disc prolapse noted by Professor Jones.

It is also more likely than not that the cervical myelopathy became symptomatic on 20 January 2004, given the history of store work and the first onset of weakness in the legs that day and the evidence of Professor Jones that "...doing that over and over could certainly aggravate cervical myelopathy in the presence of an underlying stenosis or narrowing of the spinal canal" (tr 261).

I am satisfied that Mr Deo has suffered cervical myelopathy as a consequence of both the picking and packing work he performed generally at Woolworths, as well as the specific duties he performed on 20 January 2004. I am satisfied on the evidence before me that there is a causal nexus between Mr Deo's cervical myelopathy and his employment as a storeman at Woolworths."[21]

58 The main thrust of the appellant's submissions on appeal is that based upon these passages it does not know why these conclusions were reached.

59 Woolworths' counsel, Mr Manual, complained about the lack of reasons dealing with the apparent rejection of the evidence of Mr Young and Pattison. He said:-

"With respect Ms Pattison who is a well-respected professional as came out in the evidence, her job is to assess duties. Her job is to assess how people go about physically coping. She had specifically dealt with Mr Deo, not just for a day, but she had made return-to-work plans for him. Mr Young - sorry, I think I called him Taylor previously. Mr Young - of course he wasn't there all the time because he had his own job to do, but he was there a lot of the time. His evidence as I recall was that he was there in excess of 70 or 80 per cent of the time, and he was challenged on this by my learned friend quite properly to say, 'Mr Young, don't you have some sort of physical disability yourself which limits your ability to get around the warehouse,' and he says, 'Yes, I do have a physical disability, but it doesn't limit my ability to get around the warehouse.'

So you have two witnesses who are not effectively challenged, but were ignored, and the only reason given for them being ignored is that Mr Deo had been there. That doesn't help when we come to look at Mr Deo's external activities - and they were quite significant - the histories that he had given. It doesn't help because there is a direct conflict between the evidence of these two people - Taylor (sic) and Pattison. There's a direct conflict between their evidence and Mr Deo's as to the accommodations being made for Mr Deo's already apparent polio. We have a conflict there which is important we say which is not dealt with in any meaningful way."

60 Mr Manual complained about the reasoning dealing with the significance of Mr Deo's outside of work activities. He submitted:-

"Insofar as that is an explanation for the earlier findings, with the greatest of respect it just lacks logic. It has never been a test of how many hours versus how many hours. A person for instance who is at a clerical job for 38 hours a week and then goes kickboxing for 10 hours a week and comes up with a neck injury can't just say, 'I did 38 hours in an activity that caused me no difficulty. 10 hours I spent getting beaten around the head. Therefore that's okay.' I have to say that if my reading of that is correct, then that is clearly an error of law. It is a logical flaw in the reasoning process in respect of his external activities.

His external activities were in fact quite significant. There's certainly a lot said in cross-examination about him I think vacuuming the car and doing ordinary household activities. In the ordinary course, we would say to your Honours, well, whether you've got a bad back or a dodgy knee or whatever, you still have to get around with the ordinary activities of living. He was obviously able to still go to work and do a range of functions. Therefore it's hard to be overly critical of him vacuuming his car, giving it a scrub or whatever.

The exception in this case though is his involvement in soccer. Mr Deo it appears was quite a talented soccer player. It's not the classic example of the middle-aged man in a father and son game trying to revisit past glories and generally breaking something when they try to do it. This is a man who regularly competed in competitive soccer. He was a striker. He trained for these games. So it wasn't just a matter of turning up on the Saturday or the Sunday and doing whatever it was that he was required to do. They played what you might call lightning carnivals, so that he played two and three games in a day."

61 Mr Manual complained about a lack of reasoning supporting the conclusion that the incident of 20 January 2004 contributed to Mr Deo's cervical myelopathy. He said:-

"...I'd suggest to your Honours that the medical evidence would indicate that if there was cervical myelopathy at play, then it wasn't responsible for all of the symptoms that Mr Deo experienced on that day. So it was incumbent upon her Honour to say, 'In terms of' - for instance - 'the weakness in the legs, I consider that that was causative of cervical myelopathy and that's caused by work, and then I don't really need to worry about the other things.' They could have been dehydration as I think was suggested by one of the doctors or heatstroke or something else, but all she does is recite it. She doesn't say anything."

62 Mr Manual also complained about the adequacy of the learned Deputy President's reasons in respect of her preference for Professor Jones' evidence.

The adequacy of reasons -Legal principles

63 There is a general obligation upon a trier of fact to explain the basis upon which conclusions are reached.[22]: The cases recognise that it is not necessary for the trier of fact to refer to all of the evidence and that the adequacy of the reasons will depend upon the nature of the case and the importance of the particular issue. Where the evidence is conflicting and it relates to an issue fundamental to the resolution of the case, to be adequate, the reasons need to expose the basis upon which the issue is resolved[23] and that in turn requires the trier of fact to: "... enter into and engage with that evidence and explain why a specific conclusion has been reached."[24] A failure to do this

"... may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal." [25]

However "... if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them",[26] it would not be open to a party on appeal to complain of inadequate reasons.

64 In the context of a Tribunal that only permits an appeal on question of law[27] transparent reasons are especially necessary for the reasons explained by Jennings PJ in Lavers v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (RW Miller & Co (SA) Pty Ltd) [2004] SAWCT 44 at pars 34 to 36, where he said:-

"The Act accords factual findings made by Presidential Member upon a judicial determination a status that is not enjoyed in most other jurisdictions. Findings are not subject to an appeal by way of a rehearing. As the cases that I have previously cited demonstrate, such factual findings can only be reviewed in very limited circumstances.

Far from relieving the fact finder of the need to properly explain why particular facts are found, in my view, this status provides all the more reason to plainly demonstrate that all relevant evidence has been considered and on important issues upon which the evidence is divided, to explain why some evidence is accepted or rejected.

If this is not done, there is a real risk that justice will not be seen to be done, see for example WorkCover Corporation/Royal & Sun Alliance Workers Compensation (SA) Ltd/Adelaide Casino Pty Ltd v Hunter [2003] SAWCT 63."

65 To this general statement we add two qualifications.

66 First, as Meagher JA observed in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444:-

"It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered."

67 Second, "... [w]here there are arguable gaps in the reasoning the presumption favours the judgment." The Smith's Snackfood Co Ltd v Zienkiewicz [2002] SAWCT 48 at par 4. There the Full Bench made reference to the judgment of Walters J in Gardiner v Land Agents Board (1976) 12 SASR 458 at 480 where he said:-

"I recognise the import of the rule that a tribunal 'will be presumed to have found as a fact everything necessary to support its conclusion although the same are not explicitly stated' (Watts v Welch (1950) SASR 289, per Mayo J at p 292). But as his Honour went on to add, there is a proviso to the rule, namely, that 'there be evidence upon which such findings may be satisfactorily based, and in the reasons disclosed there is no indication conflicting with that assumption'. ..."

The adequacy of reasons in this case

68 With these principles in mind we now turn to consider the complaints made on appeal.

69 We commence by identifying the key issues in dispute.

•

Was the degenerative process that was undoubtedly occurring within Mr Deo's spine contributed to by his work at Woolworths and if so was this a contributing factor in the development of his cervical myelopathy?

•

Did the events that occurred at work on 20 January 2004 cause or contribute to Mr Deo's cervical myelopathy?

70 To find that Mr Deo's work at Woolworths was a contributing factor it was sufficient for the learned Deputy President to have been satisfied that Mr Deo's work involved a lot of work at above shoulder height. It would, with respect, have been better for the learned Deputy President to have said that to the extent that Mr Young and Ms Pattison said otherwise she did not accept their evidence and for her to have made reference to Professor Jones' evidence that we referred to at par 49 herein.

71 It does not however follow that the learned Deputy President's reasons were inadequate.

72 Ms Pattison said in her evidence that she saw Mr Deo working in the workplace from time to time in 1998, 1999, 2000 and 2001.[28] It can be safely assumed that learned Deputy President rejected this evidence. This was open to her because when it was put to Ms Pattison that contrary to her view that liquor had not been a feature of the warehouse prior to 2002, Mr Young had had stated that liquor started to arrive at the warehouse in 1998-1999, she acknowledged that her recollection was incorrect.[29] Having been wrong about that it was open to infer that her recollection overall was suspect. Ms Pattison said that Mr Deo had told her that his supervisors were looking after him.[30] Given the learned Deputy President's conclusion it is safe to infer that she rejected this evidence. It was open for her to do so. The conversation was not put to Mr Deo and in light of his evidence of that was performing normal storeman's duties[31], and Mr Deo's denial that his supervisors were looking after him[32]it was open for learned Deputy President to conclude that Ms Pattison must have been mistaken.

73 Mr Young expressly said that he was aware on an ongoing basis of what Mr Deo was doing.[33] Although she did not refer to this evidence it is implicit that the learned Deputy President rejected it. In light of her acceptance of Mr Deo's evidence it was open for her to do so.

74 Consistent with what was said in The Smith's Snackfood Co Ltd v Zienkiewiczn (supra) we approach the criticisms of the learned Deputy President's lack of comprehensive reasons from the premise that we can fill in gaps by making probable assumptions about the process of reasoning. Having done so we conclude that the gaps complained of do not mean that justice has not been or been seen to be done.

75 We now turn to Mr Manual's second complaint. We think that when read in context the learned Deputy President was not saying what he contended. We think the points that she was making were that work and non work activities affected the degenerative process; although the activities were different, the difference between the impact of those activities was not great; that it was notable that Mr Deo spent much more time at work than he did playing social soccer games, cleaning his car and other household tasks and that it was therefore likely that in terms of causation the work activities contributed more.

76 As we said it was open for the learned Deputy President to reject Mr Young and Ms Pattison's evidence about the relatively light nature of the duties that Mr Deo was performing and to accept Mr Deo's evidence that the duties were reasonably arduous. It was therefore open for her to conclude that although non-work related activities probably did contribute to the degenerative process in Mr Deo's spine they should not be regarded as the only cause and that the work related activities were sufficiently significant that they too contributed in a material way. This process of reasoning was sufficient to sustain the conclusion reached.

77 As to the complaint about the learned Deputy President's finding that it was more likely than not that the cervical myelopathy became symptomatic on 20 January 2004, with respect it would have been better for the learned Deputy President to have made a statement to the effect that she was struck by the sequence of events. It is however safe to infer that she was and it was open for her to do so.

78 Ideally she should also have made some reference to the evidence of Dr Cullum and Dr Awerbuch. This was so because these doctors provided seemingly credible evidence that raised doubt as to whether the incident of 20 January 2004 was causally related to Mr Deo's cervical myelopathy.

79 On this topic Dr Cullum said: "All I can say is that the history is given, which suggests that he had some physical symptoms at the time. Whether they were long lasting or not, I don't know."[34]

80 It was then put to him:-

"Doctor if you accept the history is that he has continued to have weakness in his legs since the event on 20 January 2004 and that that arose in the circumstances where he had been performing work in the morning as described, and that the onset of those symptoms of weakness in the legs came on whilst he was walking up the steps to go to the smoko room, would you accept that the temporal relationship between the onset of those symptoms and the work that he was doing - that there was a possible contribution to work by the onset of those symptoms?

A. Well the complicating factor is, he's got cervical myelopathy, so the problem is, I don't know. He has symptoms, he has weakness. On the hot day, like I said, he may be fatigued, he may be sort of faint, he may have got an aggravation or it may just be a one-day exacerbation. He's got cervical myelopathy which is of such a severe concern to Nigel Jones that he wants to operate on him. A weakness in his legs could be in part due to that. So the answer is that, you know, it could be that he's deconditioned. I don't know, is the answer." [35]

81 Dr Awerbuch rejected the hypothesis that the incident of 20 January 2004 had caused the disc prolapse. He was asked:-

"Q. You indicated that you are not of the view that the spinal cord compression that must have occurred on the day in question, because of the symptoms that were exhibited on the day of leg pain, or leg weakness - and I think that's Professor Jones's view, that the presentation of leg weakness was indicative of spinal cord compression. Before I ask this question, you accept, do you not, Professor Jones's expertise in the area of cervical spine and cervical myelopathy?

A. Yes I do. I accept it, but it doesn't follow necessarily that I agree with everything that he might say on the subject. But I accept that, yes."[36]

"Professor Jones, in his evidence yesterday, said that it was possible that the presentation of symptoms on the day in question was evidence of a disc prolapse occurring on that day in the neck?

A. Well, I'm not aware that there is any such evidence. I mean, that's a theoretical possibility, but it's improbable in the absence of evidence of that. I mean, there was no acute event. You're not going to get a disc prolapse while you're walking up a flight of stairs."[37]

83 It should be noted that Dr Awerbuch was not aware that Mr Deo was complaining of neck pain on 20 January 2004 and conceded that neck pain with leg weakness was consistent with a disc prolapse.[38]

84 If the evidence of Dr Cullum and Dr Awerbuch had been brought to the learned Deputy President's attention and she had been asked to accept it we would accept that a lack of any reference to it might have caused a real concern that their evidence was overlooked.

85 However that is not what occurred. Woolworth's counsel in making closing submissions said:-

"In relation to the expertise of the medical practitioners, your Honour, it is my submission, as much as he wasn't my witness, that Prof Jones is the one true expert in this field who has appeared before your Honour. Whilst the remainder of the witnesses, in particular the occupational physicians, are experts in a general sense, when it comes to the matter of weighing the evidence and attributing weight to a various individual, it is my submission that Prof Jones is the one witness who appeared before you who can speak authoritatively on matters in relation to this. He was a treating practitioner, he's an active surgeon, he is a professor, he continues to be working in the field and this is his specialty. The occupational physicians, on the other hand, your Honour, are all generalists. I think it was Dr Cullum who said that occupational medicine can be a grab bag of various fields. It was said, not unkindly, by someone, [39]possibly 'jack of all trades and master of none', whereas in my submission Prof Jones is quite clearly the master of the field."

86 The fact that the learned Deputy President made no reference to the evidence of Drs Cullum and Awerbuch has to be looked at in this context.

87 As to her reliance upon Professor Jones she was entitled to be untroubled by Dr Cullum's uncertainty and she was entitled to reject Dr Awerbuch's disagreement with Professor Jones. It is safe to infer that she regarded Professor Jones as an impressive witness and that she thought that he was better qualified to express an opinion on an issue such as this than Dr Cullum and Dr Awerbuch.

Conclusion

88 The learned Deputy President's reasons were brief. With respect it would have been desirable for there to have been a more detailed discussion and analysis of the evidence. However when the reasons are viewed as a whole and considered in light of the submissions that were put to her in closing argument it is our view that they were sufficiently adequate as to not constitute an error of law. The appeal is therefore dismissed.

[1] "The two kinds of proof are quite different in their objects and methods, but are frequently the cause of confusion when medical issues are concerned. In many such cases, experts in the field of the relevant medical science give evidence of their expert opinion concerning the medical issue. Trained in the scientific method of proof, some such experts find difficulty in adjusting themselves, when giving evidence in court, to the lesser requirements of legal proof, which, looked at from their scientific standpoint, they regard as inferior and unreliable. An expert who gave evidence for a party in litigation where there has been an adverse result reached by application of the legal standard of proof is quite likely to advise the party that the result is an unscientific and unsound one. Hence, many appeals by the indignant losing party: the various trials and appeals in Hocking v Bell, (see the decision in the Privy Council [1947] HCA 54; (1947) 75 CLR 125), provide a classic example."

[2] See, for example: Foord v WorkCover/MMI (Brook Engineering Pty Ltd) [2000] SAWCT 28

[13] The MRI was undertaken on 7 July 2005

[18] Deo v Woolworths (South Australia) Pty Ltd [2006] SAWCT 78 at par 8

[19] Deo vWoolworths (South Australia) Pty Ltd [2006] SAWCT 78 at par 21

[20] Deo vWoolworths (South Australia) Pty Ltd [2006] SAWCT 78 at par 10 and 19

[21] Deo v Woolworths (South Australia) Pty Ltd [2006] SAWCT 78 at par 18-20

[22] The obligation was described by Samuels JA, with whom Clarke JA and Hope AJA agreed, in Mifsud v Campbell (1991) 21 NSWLR 725 at 728

[23] North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Soulemezis at 270 per Mahoney JA, at 280 per McHugh JA

[24] Jones v Bradley [2003] NSWCA 81 at par 131 per Santow JA

[25] Mifsud v Campbell (1991) 21 NSWLR 725 at 728

[26] Soulemezis v. Dudley (Holdings) P/L (1987) 10 NSWLR 247 at 270 per Mahoney JA