Australia: Do the principles of Makita apply to evidence adduced in the Workers' Compensation Commission?

Last Updated: 1 April 2011
Article by Michael Poulos and Terri Hirbod-Bassi

Judgment date: 15 February 2010.

Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11.

NSW Court of Appeal1

In Brief

  • The Court considered that a strict approach to the principles of Makita (Australia) Pty Limited v Sprowles2 (Makita) are not required in evidence adduced in the Workers' Compensation Commission.
  • The Court confirmed that a deficiency in an expert's evidence can be remedied by other material such as further reports or in oral evidence.
  • The principles in Makita are to be closely examined by the High Court of Australia shortly and, accordingly, the New South Wales Court of Appeal's perspective, as illustrated in Hancock, may change.


On 31 October 2005, the appellant allegedly sustained injury to his right knee when he slipped on a cleat whilst stacking timber during the course of his employment with the respondent.

The appellant was off work for a few days after the incident, but shortly returned to work and remained at work, save for various periods of sick leave that were not claimed by him at the time as being due to original injury. It was not until 26 March 2008 that the appellant remained off work on sick leave. On 16 October 2008, the respondent terminated the appellant's employment.

The appellant sought weekly compensation payments from the respondent under the Workers Compensation Act 1987 (NSW) (the 1987 Act) alleging that he suffered permanent incapacity as a consequence of the injuries sustained to his knee on 31 October 2005. The respondent declined the claim.

The appellant commenced proceedings in the NSW Workers Compensation Commission (Commission). The Arbitrator found in favour of the appellant and made an award for weekly compensation payments.

The respondent appealed the decision of the Arbitrator and the appeal was heard by Keating DCJ on the papers. Notwithstanding the fact that his Honour found that the work incident had occurred and that the appellant had injured his right knee as a result of the injury, his Honour concluded that the appellant had failed to discharge the onus of providing that his "incapacity commencing on 26 March 2008 resulted from the injuries sustained on 31 October 2005".

In making his decision, his Honour rejected the evidence of the appellant's treating orthopaedic surgeon, Dr Summersell, by deeming it had no evidentiary weight for the following reasons:

In making his decision, his Honour rejected the evidence of the appellant's treating orthopaedic surgeon, Dr Summersell, by deeming it had no evidentiary weight for the following reasons:

  1. The facts on which the doctors opinion was based did not form a proper foundation for it; and
  2. The doctor's opinion failed to satisfy the second limb of Makita.

The appellant appealed to the Court of Appeal.

Appeal to NSW CA

The Court of Appeal allowed the appellant's appeal and remitted the matter to the Commission for redetermination.

In her leading judgment (with Giles JA and Tobias JA in agreement), Beazley JA considered the application of Makita to proceedings in the Commission. Her Honour noted that in Makita Heydon JA was concerned with the admissibility of evidence under s 79 of the Evidence Act 1995 (Cth) whereas the Commission is not bound by the rules of evidence. In this regard, her Honour referred to s 354 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). At paragraph 82, her Honour stated:

"Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone."

Essentially, the NSW Court of Appeal held the following:

  1. The principle in Makita is that there is no requirement for an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved in the case.
  2. The Trial Judge wrongly concluded that there was a failure to comply with the second limb of Makita given that the appellant's surgeon provided a scientific basis for his conclusion that the injuries sustained in the work incident was responsible for the appellant's permanent incapacity.
  3. The question whether there is a scientific or intellectual basis for an expert's opinion must be determined with reference to the entirety of the expert's evidence. A deficiency in one part of an expert's evidence may be made remedied by other material, ie either a supplementary report or in oral evidence.
  4. The Trial Judge's reasoning in relation to the failure to comply with the principle in Makita was central to his rejection of the appellant's surgeon's evidence as having no weight. The Trial Judge's failure to afford the parties with an opportunity to address this issue contributed breach of procedural fairness.
  5. It is not apparent that had the evidence of the appellant's surgeon been dealt with in accordance with correct legal principle and had the appellant been afforded procedural fairness, the result would have been the same.
  6. It is a matter for the primary decision maker as to whether or not to draw a Jones v Dunkel3 inference.


Practitioners are advised that the decision of Heydon JA in Makita is soon to be dealt with by the High Court of Australia in the case of Dasreef Pty Limited v Hawchar4. It is yet to be seen whether the High Court of Australia will prefer to adopt the strict approach of Heydon JA to expert evidence. Further, it will be interesting to see whether the decision of the High Court of Australia will have an effect, if any, on the approach set out in Hancock given that the Commission is not bound by the rules of evidence.

In any event, practitioners are reminded to follow the Makita principles as closely as possible in order to ensure that they are not at a forensic disadvantage.

1. Beazley JA, Giles JA and Tobias JA

2. [2001] NSWCA 305; 52 NSWLR 705

3. [1959] HCA 8; (1959) 101 CLR 298

4. [2010] NSWCA 154

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