WCC Expert Evidence

In Dick’s Diesel Pty Limited v Caddaye (above) Acting President Roche also considered the issue of expert evidence in the Commission and application of the principles in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305.

The Appellant argued that the Arbitrator was wrong to accept evidence from a medical expert who did not have a complete and accurate history of pre-existing bowel and bladder complaints and who did not provide a proper medical explanation in relation to the nature and cause of those complaints.

The Acting President rejected the Appellant’s submission, stating:-

“…the Appellant’s submission has ignored  the correct approach to expert evidence in the Commission, as explained in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43 (Hancock).  As Beazley JA (as Her Honour then was) stated at [83] in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”.  What was required for satisfactory compliance with the principles governing expert evidence is for the expert’s evidence to set out the “facts observed, the assumed facts including those garnered from other sources such as the history provided by the Appellant, and information from x-rays and other tests”.

The Acting President decided that the expert’s conclusion that the worker had “corticospinal tract damage with occasional bladder and bowel incontinence” was adequate and that there was no requirement to provide any further explanation.  He considered it was sufficient for the expert to rely on the history of urinary incontinence, examination of radiological reports and the expert’s experience and expertise as a General Surgeon.