Booth v Fourmeninapub Pty Ltd

1. [1]

   BELL P: I agree with Leeming JA.

2. [2]

   LEEMING JA: Ms Lynnette Booth appeals, pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) from the decision of the Workers Compensation Commission, constituted by its President, itself allowing an appeal from the determination of an arbitrator: Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25. Her appeal is as of right, but is confined to one that is “in point of law”.

3. [3]

   Ms Booth worked as a bar attendant in the respondent’s hotel at Kyogle in northern New South Wales from 1997. On 7 November 2002, a patron smashed a glass on his head and tried to slash his throat. During the aftermath, some of the patron’s blood got on her body. She became concerned that she might have contracted an infectious disease. She returned to work two days afterwards, and witnessed another fight between different patrons. After the latter incident, she ceased working at the hotel, on 19 November 2002.

4. [4]

   It is not in dispute that Ms Booth suffered a primary psychological injury, manifesting itself as Post Traumatic Stress Disorder (PTSD), as a result of the 7 November 2002 incident. What is in dispute is whether Ms Booth’s bipolar condition, which first manifested itself some two years after the incident, is one which engages the definition of “injury” in s 4 of the Workers Compensation Act 1987 (NSW) (WC Act), in the form it took prior to 2012 (being preserved in relation to injuries received before 19 June 2012 by cl 20 of Pt 19H of Schedule 6 of that Act), as follows:

5. [5]

   This appeal concerns the application of the second limb of the definition, in paragraph (b)(ii).

6. [6]

   Although the essential facts are straightforward, the litigation has a very lengthy history. In a suite of proceedings brought by Ms Booth over the last 15 years, various claims have been made. It is not necessary to summarise those proceedings (the President did so at [6]-[23] of his determination), although that background explains the narrowness of the issue arising in this Court.

7. [7]

   Moving forwards to 2018, by letter dated 3 April 2018 Ms Booth’s solicitors gave notice of a claim for lump sum compensation in respect of a 26% whole person impairment, relying upon the evidence of Dr Mark Scurrah, together with claims for weekly benefits and medical expenses. Dr Scurrah’s report (of 23 November 2017) supported that level of impairment, on the basis that the Bipolar Affective Disorder arose due to the use of anti-depressant medication. His report included this passage:

8. [8]

   That claim was disputed by letter dated 23 April 2018, on a variety of bases, including aspects of earlier determinations. These need not be summarised.

9. [9]

   A further letter from Ms Booth’s solicitors, dated 16 July 2018, advised of another claim. The letter was in identical terms to that of 3 April, save that (a) no claim for weekly benefits was made, and (b) a further report of Dr Scurrah, dated 2 July 2018, was relied upon. That report is central to this appeal.

10. [10]

    Dr Scurrah’s 2 July 2018 report commenced with his understanding that “the opinion is in the context of whether Ms Booth’s WorkCover accepted Depression and Post Traumatic Stress Disorder which occurred after the work incident in 2002 ‘aggravated, accelerated and/or exacerbated this underlying disease condition (bipolar)’”. After stating that the appellant had not been reviewed for this opinion, but rather the report was based upon his earlier reports and a review of his case notes, and summarising the materials with which he was briefed, the entirety of the substance of the report was as follows.

11. [11]

    The insurer issued a notice pursuant to (former) s 74 of the WIM Act disputing liability for the claim. Former s 74(2)(a) required the insurer’s notice to contain “a concise and readily understandable statement of the reason the insurer disputes liability and of the issues relevant to the decision”. So far as is presently relevant, responding to Dr Scurrah’s 2 July 2018 report, the notice stated the following:

12. [12]

    Those exchanges led to proceedings being commenced in the Commission. The matter proceeded to conciliation/arbitration, during the course of which Ms Booth confined her claim to one of lump sum compensation for permanent impairment.

13. [13]

    An arbitrator determined the application on 6 December 2018. After referring to Dr Scurrah’s evidence, the arbitrator noted that it was “not disputed that Ms Booth had an underlying genetic predisposition to the bipolar condition which emerged in a manic episode in the fourth decade of her life after suffering the primary psychological injury” and that the respondent had adduced no medical evidence to challenge Dr Scurrah’s opinion. The arbitrator then said that:

14. [14]

    Although a footnote cited the High Court’s decision in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 for the reference to “fair climate”, in fact that language, deriving from Culver v Sekulich 344 P 2d 146 (1959), a decision of the Supreme Court of Wyoming, was endorsed by this Court’s ex tempore judgment in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510. The language concerns the degree of accuracy and specificity required when an expert is asked for an opinion on hypothetical facts. In Culver, two men died in a plane crash, and the passenger’s widow sued the pilot’s estate in negligence. Necessarily much of the expert evidence was hypothetical, and in an appeal based on error (rather than rehearing) it was urged that it was wrongly admitted. The passage endorsed by this Court in Paric was at 154:

15. [15]

    It may be noted that it was not disputed that Ms Booth had a predisposition to bipolar disorder, and that she suffered from the condition after the traumatic incident; it is not entirely clear from what the arbitrator said how the proper foundation and “fair climate” tests were in play. The arbitrator continued:

16. [16]

    The respondent appealed pursuant to s 352 of the WIM Act on 19 December 2018, and the appeal was determined on the papers, pursuant to s 354(6) of that Act.

17. [17]

    Much of the appeal (and most of the reasons of the arbitrator) concerns questions of Anshun estoppel and res judicata arising from the complex history of the dispute. All this may be passed over, because it is outside the scope of the appeal.

18. [18]

    Ground 3 of the appeal to the President maintained that Ms Booth had to fail as she was not suffering from a “disease” when the aggravation was said to have occurred. The President summarised the parties’ submissions on this ground and addressed them at [145]-[158] of his determination, commencing with the undisputed fact that Ms Booth suffered from an underlying genetic predisposition to bipolar disorder. After referring to the formulation in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 638; [1964] HCA 34, the President noted that it was appropriate to classify psychological conditions as diseases. His Honour then turned to the reasoning of the arbitrator, which was to the effect that Dr Scurrah’s opinion formed a proper basis to conclude that there was the requisite aggravation or exacerbation. His Honour dealt with that evidence at [150]-[153] as follows:

19. [19]

    On that basis, the President was of the view that it had not been open to the arbitrator to make a factual finding that Ms Booth suffered a s 4(b)(ii) disease. The President said at [156] that that was:

The appeal to this Court

1. [20]

   Ms Booth’s appeal, pursuant to s 353 of the WIM Act, is as of right (the decision of the President is final and concerns an amount in excess of $20,000) but confined to a “point of law”. The form of the three grounds reflects the limitations of this Court’s jurisdiction:

2. [21]

   An appellant cannot convert a challenge which is wholly or partly factual to one which is on a “point of law” merely by including those words in the formulation of a ground: see the authorities collected in Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13], including Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6] and [22]. The insurer maintained that the appeal was incompetent because “[g]round 1 patently raises a question of fact” and “[g]rounds 2 and 3, which put a legal gloss over the above factual issue, cannot be separated from ground 1 (because all grounds go to the single question of whether aggravation of a genetic predisposition is a compensable injury)”. In response, Ms Booth maintained that “[i]n the absence of evidence to contradict the appellant’s expert, the President, in point of law should not have substituted his own opinion for the only expert opinion available in the matter”.

Further evidence of Dr Maclean

1. [22]

   However, the logical starting point must be Ms Booth’s application to adduce further evidence, being a report of Dr Ken Maclean, clinical geneticist. He was briefed with the background, and then given a number of legal propositions, including that “[i]t is not in dispute that a ‘predisposition to a disease’ does not satisfy s 4(b)(ii) of the 1987 Act, because there must be an existing disease capable of being aggravated, accelerated, exacerbated, or deteriorated at the time of the injury”.

2. [23]

   Dr Maclean said that “genetic predisposition” was “a latent disease susceptibility at the DNA level” and agreed that the mutation of a gene or a gene sequence was a “physical abnormality of the body”. Dr Maclean added that a “[m]utation of an ‘important’ gene may lead to a phenotype in the presence of environmental or other factors”. Consistently with that answer, he agreed that the physical abnormality of the body could, in conjunction with external factors, manifest mental or physical symptoms (question 3), and that it was capable of being aggravated, accelerated, exacerbated or deteriorated (question 4). His answer to the latter question was explained thus:

3. [24]

   There are large formal difficulties with that report, as Mr Cranitch SC, who with Dr Blount and Ms Wong appeared for the appellant, fairly acknowledged. Much of the report was expressed to be an opinion as to the “proper construction and meaning of the phrase ‘genetic predisposition’ as used in the medical report of Dr Scurrah, consultant psychiatrist, of 2 July 2018”. Little needs to be said to expose the difficulties, in an appeal confined to a point of law, in obtaining an opinion of a geneticist on the meaning of words in a report written by a psychiatrist. But the application to adduce further evidence on appeal ought to be decided at the level of substance, rather than form.

4. [25]

   Section 75A(8) of the Supreme Court Act 1970 (NSW) prohibits the Court from receiving further evidence “except on special grounds”. The applicable principles were stated in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 and recently elaborated in Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 at [169]-[186]. Both decisions confirm that the principles governing the discretion are not formulated in crisply dispositive “rules”. That said, both decisions affirm the significance of two generally applicable preconditions to the exercise of the power, namely that the evidence could not have been obtained with reasonable diligence at trial, and must be such that there is a high degree of probability that there would be a different verdict. Ms Booth does not satisfy either of them.

5. [26]

   First, it has not been established that the further evidence on the understanding of genetic predispositions to disease could not have been obtained with reasonable diligence for use in the Commission. It was said in support of the application that:

6. [27]

   Although no application was made to cross-examine the solicitor who gave that evidence of the solicitor’s subjective belief, it falls well short of establishing the objective fact that the need for further evidence could not have been identified with reasonable diligence. The insurer had maintained throughout 2018 that “we believe Dr Scurrah’s report does not advance any position that has not already been determined adversely to [Ms Booth]” and that “[r]egardless of any pre-disposition, the Bipolar Disorder did not exist prior to 2005 and hence there was nothing to be aggravated/accelerated/exacerbated by employment”.

7. [28]

   Secondly, it has not been established that there is sufficient force to the evidence, in this appeal confined as it is to a question of law, that there is a high probability of a different outcome. How can further expert evidence assist at all in identifying whether a decision made in its absence is wrong in point of law? This was raised during the hearing:

8. [29]

   Mr Cranitch was correct to accept the force of the limitation upon the scope of this appeal. The same difficulty was noted by this Court in Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281 at [25] (Macfarlan JA, Payne JA and Simpson AJA agreeing):

9. [30]

   I am unpersuaded that Ms Booth has established special circumstances. The notice of motion filed 12 December 2019 should be dismissed. It is not necessary to address the further submissions advanced by Mr Robison, who appeared with Mr Jackson for the respondent, on this issue.

Ground 1

1. [31]

   This ground was directed to [152] of the President’s determination, which noted that Dr Scurrah had stated that the appellant suffered from an “underlying disease condition (bipolar)”, but explained that Dr Scurrah had used those words because of the terms in which he had been briefed. His Honour gave reasons for this, namely, “Dr Scurrah’s use of quotation marks and use of the exact words used in the question posed”, as well as the commentary which followed.

2. [32]

   Ms Booth complained that it had not been put to Dr Scurrah in cross-examination or in any other way that his opinion was other than genuine, or that it “simply gratuitously concurred with the question he was asked”. It was said, in accordance with Rodriguez v Telstra Corp Ltd [2002] FCA 30; 66 ALD 579 at [25] that even a specialist tribunal not bound by the rules of evidence was not justified in basing its conclusion on its own view of the matter which requires evidence.

3. [33]

   Ms Booth contrasted the dispositive reasoning of the arbitrator and the President, obtained by “reading” Dr Scurrah’s report in different fashions. It was submitted that:

4. [34]

   As I shall seek to explain, I agree that Ms Booth’s submission fairly captures the President’s approach, but I do not accept that it is outside the scope of the appeal from an arbitrator’s determination.

5. [35]

   Dr Scurrah, a psychiatrist, expressed an opinion in the first bullet point of his report that “She possibly had a genetic predisposition to it [scil, the appellant’s bipolar disorder]”, and that if it had not been for the trauma, her depression, and its treatment, she would have been unlikely to develop the mental illness “despite being genetically predisposed”. In the second bullet point, he sought to explain this in other words, expressing a view that the relatively late onset suggested that the violent incident or the PTSD or treatment with antidepressants could have been the stressor which caused the illness to occur. The paragraph preceding the two bullet points says nothing more than that understanding the development of a bipolar illness is complex.

6. [36]

   The remaining substantive paragraph in the report is the opening paragraph, which is the focus of this ground of appeal. Of it, the following points may be made.

7. [37]

   First, the opening paragraph is a bald statement of opinion. On its face, and no differently from many expert reports, it anticipates that the reasons for the opinion will be stated in what follows. After all, immediately preceding is a statement that Dr Scurrah agrees to be bound by the Expert Code of Conduct, which obliges an expert, in addition to clearly stating the expert’s opinion, to state, specify or provide “the reasons for and any literature or other materials utilised in support of each such opinion” (cl 3(e)). Plainly enough, the opinion in the first sentence is to be understood in light of what follows. It expresses a conclusion for which reasons will later be given.

8. [38]

   Secondly, the words “aggravated, accelerated and/or exacerbated this underlying disease condition (bipolar)” are in quotation marks. On a fair reading, the quotation marks reflect the fact that the author is referring to the precise terms of the question, which, after all, immediately precedes it.

9. [39]

   Thirdly, it must be said that the question is less than perfectly clear. I see no way of fairly reading the question other than that the reference to “this underlying disease condition (bipolar)” is a reference to “an underlying susceptibility to bipolar disorder”. The word “this” necessarily refers to something earlier stated in the question. The only candidate is the “underlying susceptibility to bipolar disorder” which is the focus of the question. The repetition of the word “underlying” and the fact that the word “(bipolar)” in brackets is at the end tend to confirm the reference to “underlying susceptibility to bipolar disorder”. I did not understand Mr Cranitch to dispute this, which he described as “confusion of words”.

10. [40]

    Fourthly, that analysis exposes the difficulty in the question’s language. The opening words refer to an underlying susceptibility to bipolar disorder, while the closing words refer to an underlying disease condition. That is to say, read literally, the question presupposes that an underlying susceptibility is the same as an underlying disease condition. Once again, Mr Cranitch candidly and properly conceded as much:

11. [41]

    It seems to me that Dr Scurrah was alert to the defective drafting of the question, but doing the best he could, he treated it as an inquiry whether the incident in 2002 and what followed could be understood as causing a genetic predisposition to manifest itself as bipolar disorder. That is the gravamen of the substantive reasoning in his letter. Because Dr Scurrah’s opinion was confirmatory of the poorly drafted question, he commenced the substantive part of his report with an affirmative answer. Because Dr Scurrah appreciated the defects in the form of the question, he was at pains to quote it in his answer, so as to ensure that it was clear that the infelicitous language was not his own, but that of the question he had been asked. He then explained with more precision and in his own words what he meant and the basis for his answer.

12. [42]

    That conclusion draws support from Dr Scurrah’s earlier report. It will be recalled that the doctor had said that the “Bipolar Affective Disorder was not a pre-existing illness”. There is no suggestion in his later report (which was based on a review of his earlier reports and notes) that he was contradicting what he had earlier written.

13. [43]

    The complaint in ground 1 reduces to saying that there was error on the part of the President in not accepting the opening sentence of Dr Scurrah’s report as evidence that a genetic predisposition was an underlying disease condition. There is no such error. The fact that Dr Scurrah referred in his answer, in quotation marks, to the imprecisely and erroneously formulated question does not elevate it into evidence of that proposition.

14. [44]

    There is no failure to comply with the matters referred to in Rodriguez v Telstra Corp Ltd. The question in the present case is as to the meaning of an expert report, rather than a question of discounting unchallenged evidence. The task of identifying what the evidence is is logically anterior to evaluating it and determining whether or not to accept it.

15. [45]

    Nor was the approach taken by the President outside the scope of s 352(5), which provides that an appeal from an arbitrator’s determination “is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.” There was error on the part of the arbitrator in reading Dr Scurrah’s report so as to provide evidentiary support for the proposition that a genetic predisposition was a “disease”, when the only part of the report capable of bearing that meaning was the quoting of a poorly framed question which assumed the answer sought.

16. [46]

    The same conclusion may be reached by a different route. If the opinion were to have any weight, it would be necessary to identify a process of reasoning within the area of expertise of Dr Scurrah on the basis of which a genetic predisposition was a disease. But nothing in his report suggests any such process of reasoning. Rather, his report is directed to a quite different point, namely, the possibility that the incident itself, or the PTSD, or the treatment, led to the development of bipolar disorder in circumstances where the appellant was genetically predisposed to that condition.

17. [47]

    The foregoing is in large measure an elaboration of the reasons given by the President. In my view, the President has correctly construed Dr Scurrah’s report.

18. [48]

    There may be a question not free from difficulty whether the error of which the appellant complains would be one “in point of law”. It is not necessary to express a view on that question. I am not satisfied that any error has been made out. The meaning of Dr Scurrah’s report is a matter in relation to which this Court is as well placed as the arbitrator and the President. The President was correct and the arbitrator was wrong.

19. [49]

    This ground should be dismissed.

Ground 2

1. [50]

   This ground was not separately articulated by the appellant, either in written or oral submissions. There is nothing in it, for the reasons concisely put by the respondent.

2. [51]

   As explained in more detail when dealing with ground 3, predisposition to disease is a term used in contradistinction to having a disease. As the respondent said, it does not matter whether a predisposition is a matter of genetics, diet, habits (such as smoking) or otherwise; a predisposition means merely that there is a potential for a future morbidity. It is the absence of a disease. There is no error, let alone error in point of law, in this aspect of the President’s reasons.

Ground 3

1. [52]

   This was treated as the principal point in the appeal. But the question which arises is that posed by the definition of “injury” in (former) s 4(b). The two limbs distinguish between diseases which are contracted during the course of employment and diseases which are aggravated, accelerated, exacerbated or deteriorate by reason of the employment. Where the first limb applies, the worker will not previously have had the disease. Where the second limb applies, the worker will previously have had the disease, but there will have been an aggravation, acceleration, exacerbation or deterioration of the disease to which the employment contributed.

2. [53]

   The overlapping concepts in “aggravation”, “acceleration”, “exacerbation” and “deterioration” may tend to conceal the sharp distinction between the two limbs of the definition. But the need for what Barwick CJ concisely described as a “pre-existing non-employment disease” in order to satisfy the second limb is established by binding authority as well as being evident from the structure of the definition. In particular, in Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533; [1989] HCA 40, Toohey J said, with the agreement of all other members of the Court:

3. [54]

   The fundamental difficulty with this ground of Ms Booth’s appeal is that a predisposition to a disease is to be contrasted with having a disease. The fact that a person is more likely eventually to suffer from the disease, does not mean that the person has the disease. Indeed, having a predisposition to a disease is used in contradistinction to having the disease. I respectfully agree with Mr Robison’s submission:

4. [55]

   Test the matter this way (what follows draws upon Chief Justice Black’s example of the BRCA2 gene which indicates a predisposition to breast cancer: see M Black, “Genetics in the Courtroom” (2003) 26(3) UNSWLJ 755. A person whose identical twin is diagnosed on Monday with breast cancer may very well be a person who is genetically predisposed to contracting that disease. But the person does not then and there, and for that reason on that Monday have the disease. The person may have a test for the BRCA2 gene, but if it is confirmed that he or she has that gene, it still does not mean he or she has the disease. Nor did the person have breast cancer when he or she was born, even though almost certainly the person had from before birth a genetic predisposition to breast cancer.

5. [56]

   Another way of viewing the position is that nothing which occurred throughout Ms Booth’s employment made any difference to the genes in her cells. Ms Booth’s genes – including such mutation as gave rise to a genetic predisposition – were fixed at conception and remained constant throughout her lifetime. That is after all the point of the almost perfect replication of DNA when cells divide. How then can it be said that there was any aggravation, acceleration, exacerbation or deterioration?

6. [57]

   Ms Booth’s written submissions collected statements from other decisions, and from medical dictionaries, with a view to asserting that “the mutated gene was an asymptomatic disease that was … aggravated or exacerbated by external work related factors causing the symptoms associated with bipolar, depression and mania to manifest”. I do not accept this reasoning. Windeyer J, emphasising the generality of the term “disease”, said in Commissioner for Railways v Bain (1965) 112 CLR 246 at 272; [1965] HCA 5 that “[t]he word ‘disease’ seems to me apt to describe any abnormal physical or mental condition that is not purely transient”. But a genetic predisposition is not a “physical or mental condition” in the sense to which Windeyer J referred. A genetic predisposition is the absence of a physical or mental condition, albeit there is an elevated susceptibility to developing in the future a physical or mental condition.

7. [58]

   The question ultimately is one of statutory construction. The definition is part of a single sentence in the statute, which distinguishes between cases of a disease being “contracted” by a worker in the first limb, and cases of the “aggravation, acceleration, exacerbation or deterioration” of a disease in the second limb. It must follow that in order for the disease to satisfy the second limb, it existed prior to the event in the workplace of which complaint is made. In any event, that has been confirmed by, inter alia, a unanimous High Court in Asioty v Canberra Abattoir Pty Ltd. A genetic predisposition exists from before birth, but it is not a disease in the sense of the second limb because there was nothing manifested which could be aggravated, accelerated, exacerbated or the subject of deterioration. A diagnosis of, say, breast cancer, in a person who is (and has since birth been) genetically predisposed to breast cancer, is not the aggravation, acceleration, exacerbation or deterioration of an existing disease. The person’s genes do not change after the cancer has been detected. While it is true that the person’s genes indicate an increased likelihood of developing the disease, the occurrence of breast cancer does not aggravate, accelerate, exacerbate or deteriorate an existing disease. That is because there was no disease, as opposed to a mere predisposition to the disease.

8. [59]

   Thus, read in context and in accordance with authority, I see no reason to construe “disease” in former s 4(b)(ii) in the manner for which Ms Booth contends.

Orders and costs

1. [60]

   For those reasons, the notice of motion and the appeal must be dismissed. It is not necessary to deal with a notice of contention, which was not sought to be developed in oral submissions. It was accepted that UCPR r 42.1 applied, and nothing was said against the proposition that costs should follow the event.

2. [61]

   I propose that the notice of motion and the appeal each be dismissed with costs.

3. [62]

   WHITE JA: I agree with Leeming JA.