Brambles Industries Limited v Bell  NSWCA
The NSW Court of Appeal has dismissed an appeal from a
Presidential Member of the Workers Compensation Commission
('WCC'), holding that there was no error
in law by relying upon a medical opinion expressed in a report
which, on one view, did not provide adequate reasons for the
On 20 January 2003 the worker suffered a back injury in the
course of his employment as a truck driver with Brambles. He lost
no time from work but performed suitable duties for a time before
returning to his pre-injury duties. He alleged three recurrences of
a back disability in 2004 and 2005 before leaving the employ of
Brambles in March 2007. In May 2007, he commenced employment with
Morrison, again as a truck driver. On 12 June 2007 his truck
overturned in the course of his employment with Morrison and he
sustained multiple injuries. A claim for compensation benefits was
accepted by Morrison. He did not resume employment with Morrison
but on 31 July 2007 commenced work with another employer as a truck
driver. On 21 September 2007 he awoke at home with a recurrence of
painful back symptoms which prevented him from resuming work. A
claim for compensation was made against Brambles, who disputed the
Workers Compensation Commission
The matter proceeded to a hearing before a WCC Arbitrator who
awarded compensation against Brambles. On 18 June 2009, Brambles
appealed to a Presidential Member.
The Presidential Member reviewed the medical evidence, which was
conflicting on the issue of causation and which included a CT scan
report of 29 January 2003 which showed a disc protrusion at the
L4/5 level and an MRI scan of January 2008, which reported a
'progression' of the disc protrusion as well as disc
pathology at another level.
The Presidential Member found that the worker's incapacity
from September 2007 resulted from disc damage caused by the injury
in 2003. He accepted the opinion of Dr Conrad who, in a principal
report dated 18 December 2007, concluded that the 2003 injury was
the sole causative factor. The MRI scan of January 2008 was
subsequently provided to Dr Conrad who, in a further report dated
31 January 2008, merely stated that it did not change the view he
expressed in his earlier report.
Court of Appeal
Brambles appealed on the ground that the Deputy President erred
in law by accepting Dr Conrad's opinion on causation because Dr
Conrad did not explain why the results of the MRI scan of January
2008 did not alter his previously expressed view. The opinion was
therefore inadmissible and / or of no rational probative value.
The Court of Appeal unanimously dismissed the appeal.
Justice Hodgson noted that the correct interpretation of Dr
Conrad's report was a question of fact, not law. Whilst he
conceded that it would have been preferable if Dr Conrad expressed
his opinion why the later scan was consistent with the natural
progression of the 2003 injury, the omission to provide an
explanation went only to the degree of weight to be given to the
opinion. It did not make the opinion inadmissible.
Justice Tobias noticed that it is not unusual in personal injury
cases for medical reports to be tendered without any oral evidence
being called. The result is that the 'judicial officer
hearing the case is unfairly handicapped by having to do his or her
best with medical evidence which is not always as fulsome and clear
as it might be if care had been taken by the legal representatives
of the parties to ensure that before the reports are tendered, any
gaps, ambiguities or cryptic comments in any report are filled or
clarified. The costs of obtaining a supplementary medical report
will pale into insignificance against the costs of litigation
resulting from a failure to carefully consider the relevant
evidence in a timely and efficient manner'.
The Court of Appeal has given a 'wake up call' to those
who practice in the personal injury area. In jurisdictions such as
the WCC, where the usual practice is to tender medical reports
without calling oral evidence from the author of the reports, it is
important to ensure that the reports are clearly expressed and
supported by complete reasoning. Even if a supplementary medical
report is necessary, the cost of obtaining such reports or applying
to admit such reports as fresh evidence 'pales into
insignificance' when compared with the cost of an appeal. If
gaps in the reports are not filled or clarified a party runs the
risk of an adverse outcome based upon an arguable construction of
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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