Nowra Truck & Farm Equipment Holdings P/L & Brunning Investments P/L & Nubley Bros Service P/L T/as Banoon Pastoral Co v Akers

[2005] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Nowra Truck & Farm Equipment Holdings P/L & Brunning Investments P/L & Nubley Bros Service P/L t/as Banoon Pastoral Co v Akers [2005] NSWWCCPD 60

APPELLANT:  Banoon Pastoral Co

RESPONDENT:  Patricia Anne Akers

INSURER:CGU Workers Compensation (NSW) Limited

FILE NUMBER:  WCC 4131-04

DATE OF ARBITRATOR’S DECISION:          10 August 2004

DATE OF APPEAL DECISION:   1 July 2005

SUBJECT MATTER OF DECISION: Death claim; reasonable inference and weight of evidence; section 9A of the Workers Compensation Act 1987

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant: Moray & Agnew

Respondent: Bamford Marcellos O’Connor

ORDERS MADE ON APPEAL:  (1)       The decision of the Arbitrator is

revoked.

(2)       The Respondent’s claim against the

Appellant is dismissed.

(3)       No order is made as to costs.

BACKGROUND TO THE APPEAL

1. Patricia Anne Akers (‘the Respondent’) is the widow of Eric Gordon Akers (‘the Deceased’) who died on 24 February 2000 whilst at work with Nowra Truck & Farm Equipment Holdings Pty Limited and Brunning Investments Pty Limited & Nubley Bros Service Pty Limited t/as Banoon Pastoral Co (‘the Appellant’).

1. The Respondent claims that the Deceased died as a result of a heart attack arising out of and in the course of his employment as a farm labourer with the Appellant when he was starting a pump motor on farm property owned by the Appellant.

1. On 18 November 2003, the Respondent lodged a claim for lump sum and weekly compensation in respect of herself and two dependant children pursuant to section 25 of the Workers Compensation Act 1987 (‘the 1987 Act’). The insurer denied liability for the claim.

1. On 9 March 2004, the Respondent lodged an ‘Application to Resolve a Dispute’ in the Commission. The Appellant replied that, inter alia, the Deceased’s employment was not a substantial contributing factor to the injury which resulted in his death.

1. At a teleconference held on 23 June 2004, the Arbitrator directed that both parties file written submissions and that the matter be determined ‘on the papers’.

1. On 10 August 2004, a Certificate of Determination with Reasons was issued as follows:

“1.That the Respondent pay the Applicant(s) Patricia Anne Akers, Georgina Celeste Akers and Patrick James Akers compensation under section 25 of the Workers Compensation Act, 1987.

2.That the Respondent pay to the Applicant the sum of $210.00 pursuant to section 28 of the 1987 Act.

3.That a further teleconference be held to address the question of apportionment pursuant to section 29 of the 1987 Act”.

1. On 1 September 2004 the Appellant filed an Application to Appeal against the Arbitrator’s decision. The grounds of appeal are that there was no evidence, or in the alternative, insufficient evidence to support the Arbitrator’s findings firstly, that the Deceased died as a result of injury which arose out of or occurred in the course of employment with the Appellant and secondly, that the Deceased’s employment was a substantial contributing factor to the injury which caused his death.

1. On 30 September 2004, the Respondent filed a Reply to Application for Leave to Appeal and submitted that the Arbitrator gave sufficient reasons, appropriately exercised his discretion and “correctly applied the established and stated law with respect to drawing inferences and making factual determinations on the evidence,” and particularly so in view of the provisions of section 354 of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’).

LEAVE TO APPEAL

1. The Respondent submitted that she did not concede that the quantum of the claim met the requirements of section 352(2) of the 1998 Act, but I think this submission is inaccurate given that the Arbitrator ordered payment of both lump sum and weekly benefits pursuant to section 25 of the 1987 Act. Although not specifying a monetary sum, it clearly exceeds the threshold requirements.

1. The appeal was filed within time. Leave to appeal is granted.

ON THE PAPERS REVIEW

1. Both parties, in their written submissions on appeal, agree that the appeal should be determined ‘on the papers’. Having carefully read all of the documents before me, including both parties’ submissions to the Arbitrator and their submissions on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.

THE EVIDENCE BEFORE THE ARBITRATOR

1. These types of claims are inherently difficult, particularly since obviously no evidence is available from a deceased worker, and in this particular case, there were no eyewitnesses to the event.

1. The appeal focuses on the inadequacy of the evidence to support the Arbitrator’s findings so it is crucial to examine precisely what evidence was before the Arbitrator, particularly in light of section 354 of the 1998 Act.

1. Section 354(3) states:

   “The Commission is to act according to equity, good conscience and the substantial merits of the case…” and section 354(6) “If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing”(emphasis added).

1. Factors to be considered, as set out in Practice Direction 1, include relevantly “whether there is significant conflict… where conflicting reports have been prepared by expert witnesses”.

1. The Arbitrator directed that the matter proceed ‘on the papers’ with written submissions. It was therefore crucial that the Arbitrator had all relevant evidence and sufficient information as required by section 354 of the 1998 Act and Practice Direction 1. The Arbitrator lists at paragraph 14 of his Reasons, the documentary evidence he had before him and took into account in making his determination. The Respondent had filed two medical reports from the Deceased’s treating doctors, Dr Hibbard, Consultant Physician, and Dr Gunasekera, General Practitioner, and a number of documents dealing with the dependency issue.

1. Annexed to an Application to Admit Late Documents filed 25 May 2004 was a statement by the Respondent dated 18 March 2004 and a Statutory Declaration by the Respondent dated 31 July 2003. Whilst these two documents are not referred to in paragraph 14, the three other documents included in that Application are referred to by the Arbitrator, so it would seem clear that he had the statements before him.

1. The Appellant had filed statements from the employer and co-workers, two reports from the Deceased’s treating doctors, Dr Baron and Dr Gunasekera, a report from Dr Slezak, Consultant Physician, and a report from Professor Michael O’Rourke, a specialist cardiologist at St Vincent’s Hospital.

1. Documents had been produced in response to Directions to Produce by Drs Hibbard, Baron and Gunasekera, all treating doctors for the Deceased, with each party granted access. None of that material was before the Arbitrator.

1. The Respondent, in her Application, had listed a number of documents she intended to use but did not have at that time, i.e, 24 February 2004 the date the Application was signed. They included a statement from Peter Simpson as to causation, “currently being obtained”, and a factual investigation report also described as “currently being obtained” and expected to be available by 31 March 2004.

1. From the material that is before me it appears that no such documents were before the Arbitrator.

1. In these circumstances, the available evidence required the utmost scrutiny before arriving at a determination.

1. The Appellant conceded before the Arbitrator that the Respondent and the two children were dependant for support upon the Deceased. The Appellant further conceded that the Deceased died at work on 24 February 2000. It was common ground that the Deceased was working for the Appellant and that in the course of his employment had been directed to start a pump.

1. In accordance with the decision of the High Court in Zickar v MGH Plastics Industries Pty Limited (95-96) 187 CLR 310, it is clear the Deceased suffered injury in the course of employment within the definition in section 4 of the 1987 Act. In view of the provisions of section 9A of the 1987 Act, it is necessary for the Appellant to demonstrate employment to be a “substantial contributing factor” to the injury. That is the crucial issue in this case.

SUBMISSIONS

1. The Appellant’s submissions dated 1 September 2004 are substantially the same as those dated 5 July 2004.

1. The Appellant maintains that there was nothing in any of the evidence served by the Respondent which discharged the burden of proof upon the Respondent to establish, on the balance of probabilities, that the physical activities carried out by the Deceased prior to his death in any way contributed to his death. More particularly, there was nothing to support the assumption made by Dr Hibbard that the Deceased had exerted “physical effort attempting to start a diesel motor”.

1. There was no evidence from the Respondent as to the Deceased’s activities on that day. The statement by the Respondent dated 18 March 2004 refers to the Deceased’s prior “heart condition”, that he had travelled to work from home, and that “up until the day that he died, Eric appeared to me to be well”.

1. The only evidence from the Respondent providing any sort of link between the Deceased’s activities and his ‘injury’ was the report of Dr Hibbard dated 29 July 2002. It is addressed to Mr John Lyons, of Lyons Barnett Kennedy, Solicitors in Tamworth, presumably the Respondent’s prior solicitors. It is important to look at this report in detail. It states:

“Thank you for your letter dated 21 June 2002 re the deceased Eric Akers. I note that he had cardiac disease which was confirmed by coronary angiography at St Vincent’s Hospital with severe obstructions of his left anterior descending and left circumflex artery which were treated with dilation and stenting. Unfortunately, this form of treatment is associated with a 20% - 25% failure  with re-occlusion of the previous obstructive coronary artery.

It is my medical opinion on the balance of probability that he died from a cardiac event either a myocardial infarction or alternatively, a cardiac arrhythmia which occurred secondary to the physical effort attempting to start a diesel motor pump”.

1. No letter from Mr Lyons accompanied the report so it is impossible to know on what basis the doctor reported that the Deceased engaged in ‘physical effort’ in starting the pump.

1. On the basis of this report, the Arbitrator accepted the Respondent’s submissions that (paragraph 40 of his Reasons) “…the physical act of starting the motor was a contributing factor to the injury which lead to death, and in the absence of any evidence the Deceased did any other act I am satisfied that that contributing factor was substantial within the meaning of the legislation”.

1. He went on to state at paragraph 41, “There is no evidence to suggest that the Deceased’s injury would have happened anyway at or about the same time or at the same stage of the Worker’s life if he had not been at work. He certainly had chronic heart disease but the first inference cannot be drawn from that fact alone”.

1. Much of the Respondent’s submissions both before the Arbitrator and on appeal centered on the contention that it was reasonable for the Arbitrator to infer from the evidence that the Deceased exerted physical effort in starting the pump and that inference, as a fact, was a substantial contributing factor to his death.

1. The Respondent cites a number of decisions looking at the roles of medical experts, particularly, Ramsay v Watson (1961) 108 CLR 642 @ 645, quoting:

“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… They must ask themselves ‘are we on the whole satisfied on the balance of probabilities of the fact’”.

1. It is the Respondent’s submission that the Arbitrator “pursued the logical and correct approach on the application of Dr Hibbard’s opinion…” and that “it is the role of …the Arbitrator to weigh the inferences and conclusions made by the experts…”

1. The Arbitrator himself at paragraph 38 stated “There is a clear difference of opinion between the medical evidence as to whether the physical effort of starting the pump was sufficient to cause the injury… It is well established (Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538) that disputation between medical opinion cannot deprive a lay tribunal of the ability to draw inferences itself from the facts.

1. The Arbitrator however has overlooked his obligation as set out in Wiki v Atlantis Relocation (NSW) Pty Limited (2004) NSWCA 174 to give reasons when deciding as between experts. The court referred to the decision of Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 where Mahoney JA said that:

“A judge is not required to make a finding in respect of every fact leading to the final conclusion of fact… Nevertheless a judge must distinguish between the essentials and the peripherals… Reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted… It is necessary that the essential grounds upon which the decision rests should be articulated”.

1. The Arbitrator has not disclosed any grounds upon which his acceptance of the opinion of Dr Hibbard was based. This in my opinion was crucial, given that there was no evidence as to the basis upon which Dr Hibbard’s assumption was made.  It must also be remembered that Dr Hibbard concluded the physical effort (not physical act) of starting the pump contributed to the injury.

1. But what evidence was there of the fact, as found by the Arbitrator, that the physical activity of starting the motor was a substantial contributing factor to the injury?

1. In the Respondent’s case, only the report of Dr Hibbard. The Appellant had obtained statements from Colin Lord, the managing director of Banoon Pastoral Co, Peter Simpson, the manager of the property Banoon, and Gene Robinson, a co-worker and cousin of the Deceased. It also submitted reports by Doctor Slezak and Professor O’Rourke. None of this material, to which I will refer later, supported that fact.

1. The Respondent submits that “the assumed underlying fact is that Mr Akers attempted to start a pump. It is a finding of fact by the Commission that Mr Akers started the pump in the course of his employment”. That, in view of Mr Simpson’s evidence that he heard the pump going, seems a reasonable inference to draw. But it does not necessarily follow, as the Respondent submits, that “it is therefore logical to draw an inference of fact … that Mr Akers work with the Appellant was the (my emphasis) substantial contributing factor in the injury…” An inference that the activity was a substantial contributing factor required an examination of the concept of ‘substantial’ within the context of this particular case.

1. It is probably an appropriate inference to draw from all the evidence that some, however slight, physical effort was required to start the motor. But no more so, necessarily, than say the auto mechanic who picks up a car battery, or the waitress who lifts a stack of plates, or the gardener starting a lawn mower. Such actions, as ‘physical acts’ may support a temporal connection with an injury, but are not necessarily ‘physical acts’ which of themselves contribute to the injury within the meaning of section 9A of the 1987 Act. Similarly, the mere absence of any other identifiable act does not lead to the inference that the physical act must therefore be a substantial contributing factor.

1. The Arbitrator found (paragraph 43) “It is not necessary for me to determine whether the effort required to start the pump motor was great or not. It is merely enough to establish, on the balance of probabilities, that the act of starting the motor was a substantial contributing factor to the Deceased’s injury”. That, in my opinion, ignores the requirements of section 9A of the 1987 Act.

1. The Arbitrator had not in anyway identified the ‘probabilities’ that the act of starting the motor could itself be seen to be a substantial contributing factor.

1. The totality of the lay and medical evidence would suggest that the Deceased’s underlying ischaemic heart disease was the substantial contributing factor to his death.

DISCUSSION AND FINDINGS

The Factual Evidence

1. There is considerable evidence relating to the death of the Deceased which has not been considered by the Arbitrator.

1. It was common ground that the Deceased had a pre-existing heart condition. But there was evidence from Gene Robinson, a co-worker and cousin of the Deceased, not only that “there is a history of heart disease in our family” but further that “I remember a few days before he died he had been back to the doctor because he was getting pain or discomfort in his chest…” Mr Simpson also states “…I recall that in the latter period of his employment he would complain about feeling crook at times”.

1. This information is also recorded in the report of Professor O’Rourke. He states:

“There is reference to a further episode of chest discomfort or pain several days before his death and apparently he consulted his local medical officer on account of this. This episode is referred to by Mr Robinson in his statement of 21 August 2003 and by Mrs Akers in her statement of 22 August 2003”.

1. He goes on to say, by way of opinion, “He had experienced further symptoms several days before his death. His wife said that these symptoms were diagnosed as hiatus hernia by the doctor he consulted”.

1. Dr Slezak also refers to the episode of “further chest discomfort” a few days before death, concluding that, “In hindsight, the history of recurrent chest pain some 3 – 4 days prior to death may well have been relevant”.

1. It is not clear whether the statement of the Respondent referred to by Professor O’Rourke was before the Arbitrator, but it is certainly ‘evidence’ within the guidelines of the Commission as incorporated in the reports of Professor O’Rourke, Dr Slezak and Mr Robinson’s statement, which was either overlooked or disregarded by the Arbitrator.

1. Another piece of evidence which may have some significance is this: Mr Simpson, the manager, stated that the Deceased drove to the dam and “could drive to the wall of the dam, leaving him about 20 metres or so to walk to where the pump was”. Mr Simpson found the body and stated “I then saw him lying in the long grass on the dam wall about 12 feet from the vehicle”.

1. Mr Simpson had previously stated that he could hear the pump going, and, as I have said, it is logical to infer that the Deceased had started the pump. He was found some distance from the pump. The ambulance officers told Mr Simpson (as he records) “… He said from the appearance of the situation Plover [the Deceased’s nickname] had died virtually instantly”.

What happened to the Deceased between the time he started the pump and his body being found must be a matter for speculation only.

1. Mr Lord, Mr Simpson and Mr Robinson all stated that they were aware of the Deceased’s pre-existing heart condition. Mr Lord states, “He did not do heavy or strenuous work particularly in the latter period of his employment once we were aware of his heart condition”. The others agreed with this assertion. Mr Simpson further stated that “the work was not strenuous …”, that in relation to the pump, “the engine was reliable and easy to start, and Plover had done so on many occasions” and “because of his medical condition he did not do any heavy work…”

1. The Respondent seized on that portion of Mr Simpson’s statement where he said “…He was taking longer than I expected to return, and thought that he might have had trouble with the pump” as grounding an inference that there may have been a problem with the pump from which a further inference would be drawn that physical effort was required to start it. In my opinion, this again can only be mere speculation, and again, not supported by other evidence.

1. It is only appropriate to draw inferences from certain facts where the evidence properly and reasonably supports such a conclusion. Mr Simpson was the closest to an ‘eye witness’. His statement, corroborated by Mr Lord and Mr Robinson, as to the everyday nature of the work performed  by the Deceased on 24 February 2000 does not support the assumption, recorded only by Dr Hibbard, but physical effort was required to start the pump.

1. Professor O’Rourke conceded that “it is possible that the effort of starting a motor could have precipitated the cardiac arrhythmia at the time or shortly afterwards. Unaccustomed activity is associated with increased risk of cardiac arrhythmias, sudden death and precipitation of myocardial infarction. The type of work on which Mr Akers was engaged is similar to that to which he was completely accustomed”.

1. The statements referred to above all assert that the Deceased was performing his customary duties on the day of his death.

1. However, just because an activity is ‘customary’ does not of itself exclude the possibility that it could be a “substantial contributing factor” to an injury. It is a factor to be weighed with all the other evidence.

1. The Court of Appeal considered the issue in Mercer v ANZ Banking Group (2000) 20 NSWCCR 70 noting that “in applying section 9A it is the strength of the causal linkage between the ‘employment concerned’ and the injury that is in question, …”That it is the work activity in which the worker was actually engaged at the time of injury that is relevant”.

1. Section 9A requires that employment be a “substantial contributing factor” to the injury, not necessarily the ‘cause’. But in one sense, section 9A does give rise to a test of causation. Reference is made in Mercer to the necessity for ‘causal connection’ between the injury and the work that was required to be performed. The employment contribution must be more than minimal, and of some significance, and a discussion of what is ‘substantial’ must of itself look at issues of causation. In Stanton -Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632. His Honour Judge Neilson referred to the necessity for a ‘causal connection’ in considering the application of section 9A.

1. This accords with the stated aim of the legislation to compensate workers who suffer injuries that have a proper link with the workplace rather than those whose injuries have only a remote or tenuous connection with work.

1. The onus is on the Respondent to establish such a link. In the present case, I do not think such a link is established. It is clear the injury occurred in the course of employment, but it was necessary for the Respondent to demonstrate that the Deceased’s employment at the time was a substantial contributing factor to his injury.

1. Here, we do not know what the Deceased was doing at the time he suffered injury. The pump was going, so it could be inferred he started it. But we do not know when he sustained injury or what he was doing at the time. There is no clear evidence that physical effort was required to start the pump. There is evidence, relevantly referred to by the medical experts, that the Deceased had a recurrence of chest pain a few days prior to his death on a background of significant cardiovascular disease. His body was found some distance from the pump.

1. The Respondent in my opinion has failed to establish any reasonable or causal link between the employment concerned and the injury. There may have been a temporal link, but there is no evidence of any particular characteristic of the work or the conditions in which it was performed nor indeed of any particular task that could be shown to be a substantial contributing factor to the injury.

1. The Respondent has cited the decision of Ashford J in Dominguez v Sanchev Constructions Pty Limited (2000) 20 NSWCCR 295 where Her Honour found the worker suffered injury in the course of employment by way of a rupture of an intracranial vessel following an angry altercation with a fellow worker about work performance, finding that activity a substantial contributing factor to the injury.

1. However, in the present case, as I have said, there is simply no, or insufficient evidence of the activity of the Deceased prior to his death which could properly be said to be a substantial contributing factor to his injury.

1. The Arbitrator in my opinion took only a ‘temporal’ view of the evidence before him, rather than an examination of the ‘connection’ of the employment within the meaning of section 9A of the 1987 Act, and in light of the authorities to which I have referred.

The Expert Medical Evidence

1. It is important to examine all of the expert medical opinion in light of the Arbitrator’s findings of fact. The Arbitrator, in paragraphs 35 – 37 of his Reasons, refers to the reports of Doctors Hibbard, O’Rourke, Slezak and Gunasekera. The latter two he dismisses since they do not “address the question of physical effort”. Curiously, in paragraph 34 however, he dismissed the issue of the degree of physical effort as irrelevant to the substantial contributing factor issue, clearly inconsistent with his examination of the medical evidence.

1. He notes Dr Hibbard’s opinion that “on the balance of probability that he died from a cardiac event … which occurred secondary to the physical effort attempting to start a diesel motor pump”. He makes no enquiry as to the basis upon which Dr Hibbard concluded that physical effort was required.

1. The Arbitrator notes in paragraph 36 Professor O’Rourke’s opinion as to the ‘customary’ nature of the Deceased’s work and his opinion that “on balance, I think it is most unlikely that the effort of starting the four/stroke motor was responsible for cardiac arrhythmia” but makes no further comment on that evidence.

1. In ‘disregarding’ Dr Slezak’s report, he ignores that doctor’s conclusion that “on the evidence available to me, it would appear death was due to a cardiac arrhythmia in term relating to underlying myocardial ischemia. In hindsight, the history of recurrent chest pain some 3 – 4 days prior to death may well have been relevant”.

1. The Arbitrator appears also to have ignored the prognostication of Dr Hibbard that “…This form of treatment is associated with a 20 – 25% failure with re-occlusion of the previous obstructive coronary artery”.

1. Dr Gunasekera, the Deceased’s treating GP, reported, again to Mr Lyons, on 19 November 2000. He refers to the Deceased’s strong family history of ischaemic heart disease. He documents his treatment of him in July and August 1999. He states, “There are two possible reasons why Mr Akers may have developed a further coronary event and these may be due to an obstruction of the stent or a coronary event (plaque rupture) in a non-dilated vessel”. He concludes “I am unable to give you an accurate determination with regard to the connection with heavy work as being a contributing factor to his demise and it is best if you consult a cardiologist in regards to seeking an opinion”.  Again, there is no evidence supporting the reference to “heavy work” and no accompanying correspondence from Mr Lyons which may have shed light on the basis of that assumption. The evidence from the co-workers is completing contrary to this assertion.

1. Dr Baron, the Deceased’s treating cardiologist, reported in September 2003 his treatment of the Deceased in September and October 1999. He had had no contact with the Deceased thereafter, and offered no opinion as to the circumstances of his death.

1. Professor Michael O’Rourke is a senior cardiologist working at St Vincent’s Hospital since 1970. He lists his qualifications at length of paragraph 2 of his report and notes “I have conducted research into clinical cardiology especially ischeamic heart disease for over 35 years and have written several hundred articles and several books on arterial disease…”

1. His conclusion that “I believe that Mr Akers was liable to a sudden cardiac event on the basis of his underlying cardiac condition” is supported by Dr Slezak and to some extent by both Dr Hibbard and Dr Gunasekera who both concede the recurrence of further coronary problems could be due to either continuing underlying coronary artery disease or re-occlusion of the previous obstructive coronary artery.

1. The Arbitrator’s finding in paragraph 41 that “There is no evidence to suggest the Deceased’s injury would have happened anyway…” completely ignores not only the impact of his underlying condition as referred to by the medical experts, but more importantly, the evidence of recurring chest pain a few days prior to his death.

1. As the Appellant points out at paragraph 13 of its submissions dated 1 September 2004, “The opinions of Dr Slezak and Professor O’Rourke were based on all of the available evidence whereas it is unclear as to what, if any, evidence the opinion of Dr Hibbard was based upon”.

1. The acceptance of Dr Hibbard’s assumption that “physical effort” was the precipitant is inconsistent not only with the lay evidence but also with the totality of the medical evidence.

1. The Respondent submits that “any underlying basis of fact or assumption by Dr Hibbard, stated or not, does not interfere with his ability as an expert or specialist, to provide an opinion or the weight applied to it by the commission.” In support of this submission, the Respondent then cites the decision of Myles CJ in Forrester v Harris Farm Pty Limited (1996) 129 FL 431 as follows:

   “It is a trite principle of evidence law that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a substratum of facts which facts are proved by the evidence of the case, exclusive of the evidence of the expert, to the satisfaction of the court…”

2. That is true, but in the present case, contrary to the Respondent’s submissions, Dr Hibbard’s assumption is not supported by any other evidence in the case.

CONCLUSION

1. In my opinion, the Arbitrator drew inferences of fact that were neither reasonable nor supported by the evidence and in so doing erred in law.

1. As he rightly stated at paragraph 28 of his Reasons “… “The real bone of contention seems to be whether that employment was a substantial contributing factor to the injury which subsequently led to the Applicant’s death”. He then quotes section 9A together with the examples of factors to be taken into account. He cites the decision of Mursa [sic] Mercer noting that “substantial” meant “more than minimal, large or great”. He then states, “It is therefore necessary to identify the various factors that contribute to an injury and compare their contribution to determine whether the employment factors are substantial”.

1. Contrary to his stated task, he concludes that “the clear inference from the facts of this case is that the act of starting the pump was the novus actus intervenieus [sic] which caused injury leading directly to death” and that “…the physical act of starting the motor was a contributing factor… (that) was substantial…”

1. There was no evidence to support that conclusion other than the statement of Dr Hibbard, and that statement was flawed because it was based on an assumption which was unsupported by any other evidence.

THE DECISION

1. (1)         The decision of the Arbitrator dated 10 August 2004 is revoked.

(2)         The Respondent’s claim against the Appellant is dismissed.

COSTS

1. Not order is made as to costs.

Deborah Moore

Acting Deputy President

1 July 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE