Federal Court of Australia

Scanes v Comcare [2024] FCA 961

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal by Ms Noelene Scanes under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal to affirm the decision of the respondent, Comcare, that it was not liable to pay her compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) by way of dependency benefits and funeral expenses (the latter not being mentioned in the summary reproduced in the next paragraph). Unless otherwise specified, all legislative references in these reasons are to provisions of the SRC Act.

2    It is convenient to reproduce the following overview summary from Ms Scanes’ written submissions in chief (omitting footnotes):

[1]    The Applicant brought a claim under s.17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) following the death of her late husband, Mr Warren Scanes. Mr Scanes was born on 1 January 1949 and was employed as an officer of the Australian Federal Police (“AFP”), and its predecessors, between 10 May 1971 and 30 June 1995. He died from a myocardial infarction on 12 October 2020.

[2]    As a result of his duties with the AFP, Mr Scanes suffered from a considerable amount of stress, adding to his pre-existing smoking habits. A report by Dr Coles (Mr Scanes’ treating cardiologist) of 20 April 1993 records that Mr Scanes told him that he “smoked up to 60 cigarettes a day while at work, compared to 15 cigarettes a day while at home”.

[3]    On or about 2 March 1993, while in the course of his employment with the AFP, Mr Scanes suffered a total occlusion of his right coronary artery and a consequent myocardial infarction, being an “injury (other than a disease)” for the purposes of s 5A of the SRC Act. He was taken to Woden Valley Hospital, and was later treated by Dr Craigie (GP) and Dr Coles (cardiologist).

[4]    On 4 March 1993, Mr Scanes filed a claim for compensation, pursuant to what is now the SRC Act, in relation to “myocardial infarction and work-related stress”, which was attributed to his employment with the AFP.

[5]    After an initial denial of the claim, it was eventually accepted by Comcare on evidence provided by Dr Coles provided further medical evidence that Mr Scanes’ “reaction to the stress of work was to smoke” and “as his coronary artery disease seemed to be due to his smoking this seemed to form a link with the conditions of his employment”. Based on the above evidence, Comcare accepted on 4 June 1993 that “aggravation of coronary artery disease and resultant myocardial infarction” was a compensable condition.

[6]    Mr Scanes died on 12 October 2020. The death certificate states “cardiac arrest” and “ischaemic heart disease (years)” as the cause of death.

[7]    On 7 December 2020, the Applicant lodged a death claim for compensation with Comcare under section 17 of the SRC Act, on the basis that Mr Scanes’ 1993 “injury” had “resulted in” his death in 2020. Comcare denied this claim in the primary determination and subsequently in a reviewable decision dated 30 July 2021.

[8]    The Applicant applied for review of Comcare’s reviewable decision by the Administrative Appeals Tribunal. At the Tribunal hearing, concurrent evidence was given by three expert cardiologists (Ass Prof Colquhoun and Ass Prof Gutman called by the Applicant, and Dr Hossack called by Comcare). Written submissions were submitted by both sides. The Tribunal then affirmed the decision of Comcare. The Applicant says that the Tribunal’s decision was attended by the errors set out in the “questions of law” itemised in the Notice of Appeal.

3    The three cardiologists provided written reports and gave concurrent evidence. There was also a volume of medical records and contemporaneous reports from treating doctors. The three cardiologists were provided with the following information agreed between the parties, which succinctly framed the issue and was also reproduced in the Tribunal’s reasons at AAT[62] (including footnote, emphasis in original):

Preliminary Guidance Notes

[1]    Compensation is payable under ss.17 and 18 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") “where an injury to an employee results in death”.

[2]    The relevant injury to be considered in this application is an "aggravation of coronary artery disease and resultant myocardial infarction" which was suffered by the Applicant's husband in March 1993[.]

[3]    There may be more than one “injury” which “results in” the death of a worker like Mr Scanes. The class of relevant injuries is also not limited to only the immediate precipitant cause (or causes) of death, but could include any previous "injury", or sequence of injuries, provided that they remain at the time of Mr Scanes' death a "cause in fact" or "an effective or operative cause" of the death.

[4]    The term “results in” in s.17 and 18 does not require the “significant contribution” test in s.5B of the SRC Act to be applied to the earlier injury. In this case, it is sufficient that it was accepted by Comcare that the 1993 aggravation and myocardial infarction occurred while Mr Scanes was “in the course of his employment”.

[5]    In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 the NSW Court of Appeal outlined at pp.463-464 the following statement of principles, which are relevant to this application:

The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.1

[6]    The decision in Kooragang Cement was subsequently approved by the Full Federal Court in Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1, where the Full Court said (in a case dealing with incapacity rather than death):

The only additional general comments we consider it necessary to make are these. First, where the causal chain reveals multiple and sequential (or cumulative) injuries that are alleged to provide causes for an incapacity, before an earlier stage injury can properly be said to be an injury for the purposes of [the legislation], it must be able to be said that it remained an effective or operative cause of the incapacity. Secondly, as is well recognised, the sustaining an injury and the onset of incapacity resulting from that injury need not, and commonly does not, occur simultaneously: Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd at 526-527.

[7]    The comments of the Full Court relating to "incapacity" apply equally to "death".

Questions

1. In light of the above, do you consider that the accepted “aggravation of coronary artery disease and resultant myocardial infarction” in March 1993 “resulted in” Mr Scanes' death in October 2020?

2. In this regard please consider the following aspects of Mr Scanes' medical history:

(a)    the period before Mr Scanes’ 1993 myocardial infarction;

(b)    Mr Scanes' 1993 myocardial infarction;

(c)    the period occurring between the 1993 myocardial infarction and the 2020 myocardial infarction;

(d)    Mr Scanes 2020 myocardial infarction.

    _______________________________

1. In the SRC context, Re Kooragang Cement was applied by Drummond J in McAuliffe v Comcare [2002] FCA 769 at [11] and by DP Humphries and Member Fricker OAM in Connelly v MRCC [2021] AATA 702.

4    The closing submissions of the parties to the Tribunal were only made in writing.

5    The live issue before Comcare and subsequently the Tribunal was whether the aggravation of coronary artery disease and resultant myocardial infarction – that is, the heart attack in 1993 (1993 injury) – remained an effective or operative cause of Mr Scanes’ death in 2020. There was no dispute that Ms Scanes was a dependent of Mr Scanes, as the term is defined s 4, and the Tribunal was satisfied of the same: AAT[11]. Dr Hossack’s opinion was that the 1993 injury was not an effective or operative cause of death. The opinions of Associate Professor Colquhoun and Associate Professor Gutman were that the 1993 injury was an effective or operative cause of death. The Tribunal preferred the opinion of Dr Hossack, concluding as follows (footnotes omitted):

[121]    The Tribunal accepts the opinion of Dr Hossack regarding the history of Mr Scanes’ cardiac health and its role in his death in 2020. As outlined above in these reasons, it was evident that Dr Hossack had conducted a thorough and detailed analysis of Mr Scanes’ medical history and had a strong grasp of its affect on his health and the circumstances that led to his death in 2020. For the reasons set out above, Dr Hossack’s evidence is therefore given more weight than that of Associate Professors Colquhoun and Gutman in this proceeding. While it may be accepted that Mr Scanes’ injury predisposed him to another myocardial infarction, based on the medical evidence, the Tribunal does not accept that this increased risk is sufficient to find that the accepted injury resulted in his death some 27 years later. The existence of risk does not maintain any causal chain from the 1993 injury to Mr Scanes’ death in 2020.

[122]    The Tribunal accepts the research of Dr Hossack regarding Mr Scanes’ longstanding untreated and abnormally elevated cholesterol levels. As set out above in these reasons, under cross-examination at the hearing, both Associate Professor Colquhoun and Associate Professor Gutman ultimately agreed with Dr Hossack’s opinion regarding the important role Mr Scanes’ cholesterol played in his death and that it was due to ruptured plaque from atherosclerosis which led to the occlusion of his left-sided coronary artery. Based on the accepted evidence, this physiological process was separate and distinct from Mr Scanes’ 1993 infarction, or the accepted ‘injury’. In short, the Tribunal accepts Dr Hossack’s thesis regarding the singular role played by Mr Scanes’ untreated high cholesterol over many years which led to a portion of plaque shedding and resulted in the fatal occlusion of his left-sided coronary artery in 2020. Accordingly, on the balance of probabilities, the Tribunal finds that Mr Scanes’ history of untreated high cholesterol was a novus actus interveniens which, even if there was a causal chain from the 1993 injury, snapped that chain of causation.

[123]    Having regard to all of the evidence, the Tribunal is not satisfied that Mr Scanes’ 1993 injury remained an ‘effective or operative cause’ of his death in 2020. The Tribunal finds, on the weight of medical evidence, that the effective or operative cause of Mr Scanes’ death was the occlusion of his left-sided artery in the heart due to atherosclerosis as a result of untreated high levels of cholesterol over a sustained period of time, which process was not related to the accepted injury in 1993. Accordingly, Comcare is not liable to pay compensation to Ms Scanes under sections 17 and 18 of the SRC Act.

6    The asserted questions of law and the grounds of appeal in the supplementary notice of appeal (NOA) are too detailed to warrant reproduction in these reasons, but can be sufficiently summarised as follows, adjusted to reflect the way in which there were ultimately argued by Ms Scanes in written and oral submissions:

Grounds 1 and 3:    The Tribunal erred in law by failing to engage with and either dispose of or accept a central contention of Ms Scanes’ case, and as a result misunderstood her case.

Ground 2:        The Tribunal erred in law by relying on the bare assertions of Dr Hossack (the NOA uses the maxim ipse dixit) which were speculative and unsubstantiated by evidence.

Grounds 1 and 3 – Ms Scanes’ central contention

7    Ground 1, and consequently ground 3, turns on a comparison between a key portion of Ms Scanes’ closing written submissions, including an excerpt of the evidence Ass Prof Gutman reproduced in those submissions as the source of the contentions she submits were not addressed, and the Tribunal’s reasons addressing the contentions that were made.

8    In her written submissions to the Tribunal, Ms Scanes reproduced the following portion of Ass Prof Gutman’s evidence:

Look, I disagree with Dr Hossack. There’s a lot of patients who have occlusions in the left anterior descending or left circumflex coronary arteries and survive. They’re less likely to survive if the occlusion also involves another artery such as the distal right coronary artery giving you more damage to the heart. The more damage you have at the time of a heart attack, the more likely you are to not survive the heart attack. And the fact that he had the right coronary artery occlusion in 1993, not the degree of damage in 1993 – we all agree that was small. The fact that he had an occlusion of the right coronary artery now means – see, the right coronary artery supplies the inferior wall. If now the right coronary artery is occluded and the left coronary artery supplying the left ventricle – you know, either the anterior wall or the – or the posterior wall which is the circumflex – also involves the inferior wall, you’re going to get more damage. The more damage – there’s so many studies about this. The more damage you have, the greater the extent of the heart attack and the damage, the more likely you are not to survive. And you know, you can say that if he had a blocked LAD he may not survive. Some people die of having a small – an artery with a – a small artery with a blockage and don’t survive. But the more damage you have, the less likely you are to survive. And the fact that he had damage now not only to the left sided artery but also to the right coronary artery which was supplied by collaterals from that left coronary artery, as Dr Hossack explained and I quoted him from that letter, the less likely you are to survive. So the right coronary artery occlusion from 1993 contributed to his death in 2020, okay. It wasn’t the damage; it was the blocked artery. And I believe that all – risk factor modification would’ve made a difference, but that’s not to say that the original right coronary artery occlusion did not contribute to his death and had no role to play in his eventual demise.

9    Ms Scanes submits that the above evidence, and certain identified parts of the accompanying written submissions, constituted the central contention that the Tribunal failed to address. The part of Ms Scanes’ closing written submissions before the Tribunal that are now relied upon for appeal ground 1 and via that ground, appeal ground 3, appearing after the above quote in those submissions, are as follows (omitting footnotes):

[35]    The Applicant submits that the expert evidence is clear enough, on the balance of probabilities, to conclude that the chronology of Mr Scanes’ journey to his eventual death unfolded in the way summarised in the following paragraphs.

[36]    Mr Scanes’ coronary artery disease had resulted in increasing stenosis in the right coronary artery over time prior to March 1993. The stenosis was aggravated by the rupture of a plaque and development of a thrombus which then occluded the right coronary artery completely, and caused a myocardial infarction.

[37]    The effect of that myocardial infarction was to a significant extent ameliorated by collateral blood vessels, feeding blood from the left system into the distal right coronary artery. These collaterals had developed over some time preceding the occlusion during which the artery was becoming increasingly stenotic. The presence of the collateral blood vessels enabled the function of the right side of the heart to be maintained satisfactorily, and Mr Scanes was able to achieve good cardiac function over the following years.

[38]    However, between 1993 and 2000, Mr Scanes’ coronary artery disease continued to develop, not least because his lipids were not adequately managed over that period, as explained by Dr Hossack. During that period, the blood supply for Mr Scanes’ heart was, on the balance of probabilities, coming exclusively from the left system, both directly on the left side, and indirectly on the right side, through the collaterals feeding the distal part of the right coronary artery. Over the intervening years, the continued development of Mr Scanes’ coronary artery disease compromised the health of the left-sided coronary arteries by the development of plaque, and perhaps also stenosis, as had apparently occurred on the right side. However, a significant difference from the 1993 scenario is that the right coronary artery was not available in 2020 to be relied upon for independent collateral supply of blood to the heart.

[39]    In October 2020, a plaque ruptured in a left side coronary artery, and that was followed by an occlusion.

[40]    The occlusion of the left side artery resulted in a loss of blood flow not just to the left side of the heart, but to the collaterals serving the right side of the heart, and there was then a significant myocardial infarction on the left side, causing cardiac damage resulting in what Ass Prof Gutman described as “pump failure” and that led to death.

[41]    As noted earlier, it is not necessary for the Applicant to prove that the occlusion of the right coronary artery and myocardial infarction in 1993 was the most important cause of death in 2020. However, the evidence does show that the occlusion in 1993 of the right coronary artery, which was still occluded in 2020, effectively ruled out the possibility that damage from a left-sided myocardial infarction might have been reduced sufficiently by collaterals for Mr Scanes to survive, as happened in 1993. On the evidence of Ass Prof Colquhoun and Ass Prof Gutman, that might have been a realistic possibility, but for the pre-existing occlusion of the right coronary artery. With occlusions on both the left side and the right side, there was, on the balance of probabilities, no other viable source of sufficient oxygenated blood to keep Mr Scanes’ heart functioning. In reducing the probability of Mr Scanes’ survival from “possible but uncertain” to “nil”, the right coronary artery occlusion and myocardial infarction in 1993 was an “effective and operative cause” of Mr Scanes’ death in 2020.

[42]    That is sufficient for the Tribunal to find that the aggravation of coronary artery disease, and the resulting myocardial infarction, in April 1993, “resulted in” the death of Mr Scanes in October 2020.

10    The Tribunal addressed the extract of the evidence of Ass Prof Gutman asserted to contain the basis for the central contention that was not addressed, as reproduced in the quote at [8] above, as well as other parts of his evidence, at AAT[104] (footnotes omitted):

At the hearing, Associate Professor Gutman told the Tribunal that ‘the previous myocardial infarction is additive’ and ‘most likely’ to cause ‘cardiogenic shock with a new myocardial infarction’. Associate Professor Gutman also opined that, while the ‘recent event in 2020…caused his death’, it was ‘contributed to by the fact that he had an occluded right coronary artery’. To this end, Ms Scanes relied on Associate Professor Gutman’s evidence at the hearing that ‘the fact that he had damage now not only to the left sided artery but also to the right coronary artery…the less likely you are to survive’. While Associate Professor Gutman told the Tribunal that the right coronary occlusion from 1993 ‘contributed’ to Mr Scanes’ death, he then said it ‘wasn’t the damage; it was the blocked artery’ and that ‘risk modification would’ve made a difference’. This latter evidence was a significant qualification. Ms Scanes acknowledged that the ‘collaterals’ process had commenced before the 1993 infarction as a result of her late husband’s underlying constitutional coronary heart disease, that is, the non-work related coronary disease process which predated his accepted workplace ‘injury’. The Tribunal considers that Associate Professor Gutman’s evidence, when taking into account the totality of the medical evidence before the Tribunal, goes no further than identifying a risk factor, but not the actual circumstances of Mr Scanes’ cardiac health that resulted in his death. In this regard, Associate Professor Gutman went on to note that all of the experts who gave evidence to the Tribunal agreed that Mr Scanes’ ‘untreated cholesterol over many years contributed to his current myocardial infarction in 2020’ and that, significantly, he was not asked to address this issue in his reports. Associate Professor Gutman ultimately also accepted that this and other risk factors were very important in Mr Scanes’ subsequent myocardial infarction in 2020 and, when it was put to him that the starting point in relation to Mr Scanes’ death was his elevated cholesterol, which led to a piece of plaque displacing, he told the Tribunal that ‘yes, I agree that the heart attack in 2020 was due to a ruptured plaque in one of the left-sided vessels’. While Ms Scanes did not resile from her contention that the accepted injury resulted in her late husband’s death, Ms Scanes accepted that his untreated high cholesterol contributed significantly to his myocardial infarction in 2020 and that both Associate Professors Gutman and Colquhoun accepted this position.

11    Ms Scanes submits that it is “indisputable” that the Tribunal failed to address her central liability contentions based on the evidence of Ass Prof Gutman, and supported by common sense, characterising them as worthy of serious consideration as a comprehensive answer to Comcare’s case. She submits that this failure gave rise to a question of law because, on the authority of Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276-7 and Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 77 ALJR 1088 at [22]-[27], it raised as an issue the failure to comply with s 43(2) of the AAT Act (the duty to provide written reasons for a decision), and a constructive failure to exercise jurisdiction. It is not in doubt that a failure to address a serious and central submission or contention may constitute an error of law. But the first hurdle is to establish that the aspect advanced was in fact not addressed for whatever reason. (It should also be noted for completeness that Dennis Willcox does not in terms refer to this as an issue of procedural fairness, but rather says that it brought about a “miscarriage of justice”.)

12    Unfortunately for Ms Scanes, she fails at the first hurdle of demonstrating that the central contentions that she says were not addressed were in fact not considered by the Tribunal. The Tribunal’s reasons at AAT[104], reproduced above, make it clear that the particular evidence of Ass Prof Gutman relied upon, and more besides, was both quoted and carefully considered, a point that is reinforced by the balance of the Tribunal’s reasons. The real problem for her is not that this evidence and those submissions were not considered, but rather that they were not accepted as establishing the necessary causation, with the Tribunal preferring the competing evidence of Dr Hassock.

13    The Tribunal found that the 1993 injury produced nothing more than a risk factor, falling short of meeting the description of being an effective or operative cause of Mr Scanes’ death in 2020. Rather, the Tribunal found, the relevant causative factor was that Mr Scanes had high levels of untreated cholesterol in the lengthy period after his employment with the Australian Federal Police ceased, which led to the accumulation of plaque and the fatal heart attack in 2020.

14    In substance, rather than form, these two grounds of appeal were really seeking a different factual outcome. No real question of law was raised. It follows that ground 1 must fail. Ground 3 is entirely collateral to ground 1 and accordingly it must fail as well.

Ground 2 – Expert assertions without evidence

15    The cornerstone of this ground of appeal is reliance upon a decision of the Supreme Court of the United Kingdom in Kennedy v Cordia (Services) LLP [2016] UKSC 6; [2016] 1 WLR 597 at [48]:

An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or “bare ipse dixit” carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless. Wessels JA stated the matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, 371:

“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”

As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.”

16    Ms Scanes’ argument is made in relation to the evidence of Dr Hossack in cross-examination during the expert conclave. While the notice of appeal isolates two segments of that evidence, it is necessary to go somewhat beyond that for context. The passages are as follows, with the impugned parts emphasised in bold:

(a)    First passage:

MR GREY: Right. So we’ve got an interruption then to the blood supply on the left-hand side, which was the one that was compensating for the fact that the right coronary artery had been occluded in 1993. Correct?

DR HOSSACK: Yes.

MR GREY: So if that blood supply is compromised through another plaque rupture which causes an occlusion in the left-hand side blood supply, that builds on the fact that the original right-sided blood supply was already compromised, doesn’t it?

DR HOSSACK: No, it doesn’t, and I disagree with that because the left – if the left anterior descending coronary artery or the left main coronary artery was the culprit, the size of the myocardial infarction would be so large that it would not be – the outcome would not be influenced by any prior myocardial infarction that occurred in 1993. The myocardial infarction that occurred in 1993 was small, and I think there’s a lot of scientific evidence to indicate that there can be remodelling of the left ventricle and that normal contracting heart muscle can regenerate within the area of the myocardial infarction and cause the left ventricle to function normally.

MR GREY: Is there any such evidence that you can point to in the material before us?

DR HOSSACK: The evidence that I can point to is twofold: one, the ventriculogram that was performed after the myocardial infarction in 1993 was normal; the function was normal; that the electrocardiogram done in 2005 showed no evidence of an inferior myocardial infarction.

MR GREY: Let me just find the ventriculogram – I’ve got it here somewhere – because my reading of it is that it says there was some damage to the inferior left side of the left ventricle

DR HOSSACK: There is a measurement – a measurement called the ejection fraction, and it’s estimated that the normal range for an ejection fraction is 55-70 per cent. The ejection fraction measured at the time of the ventriculogram was 56 per cent, within the normal range.

MR GREY: What do you derive from that?

DR HOSSACK: That the – that the deceased had normal left ventricular function following the myocardial infarction.

MR GREY: Of ‘93?

DR HOSSACK: Correct.

MR GREY: And that’s because of the extra blood being supplied from the left-hand side, isn’t it?

DR HOSSACK: No, it’s because the size of the myocardial infarction was small.

MR GREY: But isn’t that the reverse causation? I mean, it’s small because there was, you say, already a stenotic right artery, and that was producing the collateral developed of blood flow which ameliorated over time, prior to the myocardial infarction, the effects of that infarction. Isn’t that what you’ve said in your report?

DR HOSSACK: No. I’m saying that the myocardial infarction that occurred in 1993 resulted in no residual damage to the left ventricle.

(b)    Second passage, being a question put by the Tribunal member to all three experts, and answered first by Ass Prof Colquhoun, second by Dr Hossack and third by Ass Prof Gutman, before being revisited by Dr Hossack as a comment on Ass Prof Colquhoun’s answer in the passage Ms Scanes relies upon, reproducing just the question and Dr Hossack’s further comment:

MEMBER: …This one is addressed to all of you. Could the acute coronary event suffered by Mr Scanes have resulted from the 1993 myocardial infarction even if he had, in the intervening years, had untreated cholesterol, no ongoing relevant workplace stress, and had ceased smoking since in or around 1995?

…

DR HOSSACK: Thank you. If we look at this a different way and say, a person had a heart attack involving a left anterior descending or the left main coronary artery and had never had a right coronary artery occlusion and never had a small inferior myocardial infarction, what would the outcome have been? And in my opinion, the outcome would have been exactly the same because the myocardial infarction from the occlusion of the left anterior descending or the left main coronary artery would have been the same, and there was so much damage that the outcome would’ve been the same irrespective of the prior myocardial infarction.

17    After reading the above evidentiary passages carefully, Ms Scanes again fails at the first hurdle. This was a conclave of experts. They, including Dr Hossack, expressed opinions based on the material that had been provided to them, and were applying their knowledge and expertise to do their best to answer the questions or propositions put to them. In the context in which he offered them, Dr Hossack’s views are not unsupported, but supported by his analysis of the information before him. The portions quoted above make clear his reasoning.

18    The proper way to address any perceived deficiency, or lack of foundation, for the evidence given is to challenge it squarely at the time it was given. Had that taken place, Dr Hossack might well have been able to explain how the evidence he gave was arrived at, rather than leaving it to the clear, and indeed irresistible, inference that this was what had taken place. This was a dynamic and complicated process, yet the approach taken is to apply a forensic looking glass and to search for error. I am not satisfied that there was any deficiency of the kind asserted in either of the passages relied upon. But even if there was, I am unable to accept that this was an error of law at all, let alone one capable of vitiating the Tribunal’s reasons or conclusion. This ground of appeal must also fail.

Conclusion

19    As all three grounds of appeal have failed, the appeal must be dismissed with costs.

Associate:

Dated:    23 August 2024