Cooper (as the legal representative of the late Leslie Cooper) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cooper (as the legal representative of the late Leslie Cooper) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 038 PARTIES: Cooper, Barbara (as the legal representative of the late Leslie Cooper) (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/283 PROCEEDING: Appeal against decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 4 March 2015 HEARING DATE: 6 February 2015 MEMBER: Industrial Commissioner Fisher ORDERS: 1. The appeal is allowed. 2. The decision of the Regulator is set aside and the Commission substitutes another decision that the application for compensation is one for acceptance. 3. Costs are reserved. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - compensation claimed for lung adenocarcinoma injury - whether employment a significant contributing factor to the injury - whether corroboration required - balance of probabilities - whether on the basis of inference rather than conjecture - whether worker regularly inhaled asbestos dust whilst employed in Queensland - determined worker inhaled asbestos dust whilst employed in Queensland - sufficient to establish employment in Queensland as a significant contributing factor to the claimed injury - application for compensation is one for acceptance -- 1 of 7 -- 2 CASES: Workers' Compensation and Rehabilitation Act 2003, s 32(1)(3) MacArthur v WorkCover Queensland (2001) 167 QGIG 100 Jones v Great Western Railway Co (1930) 47 TLR 39 Parfitt v Lawless LR 2 P & D 462 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29, (2000) 49 NSWLR 262 Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101 Q-COMP v Green (2008) 189 QGIG 747 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 Q-COMP AND Darren Bruce Parsons [2007] 185 QGIG 1 APPEARANCES: Mr M. Grant-Taylor, QC instructed by Turner Freeman Lawyers. Mr S.P. Gray, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). Decision [1] Leslie Cooper lodged an application for compensation on 21 December 2012. He was unsuccessful in having his claim accepted by WorkCover Queensland or on review by the Workers' Compensation Regulator. Mr Cooper passed away on 28 February 2013 and his claim is continued by his widow, Barbara Cooper. [2] Compensation was claimed for the injury, lung adenocarcinoma (lung cancer). "Disease" is included in the meaning of injury: s 32(3). It is contended for the Appellant that Mr Cooper's employment with Biggs & Sons on the Gold Coast was a significant contributing factor to the injury. [3] Mr Cooper made a Statutory Declaration on 8 January 2013. It was admitted into evidence by consent. [4] Mr Cooper's Statutory Declaration discloses that he worked with asbestos between 1953 and until the early 1990s. This included a period where he worked in New South Wales as an employee and also when he was self-employed. He moved to Queensland in 1965 and worked for Biggs & Sons until 1975. For a period of approximately 20 years after leaving Biggs & Sons, Mr Cooper was a self-employed contractor for Paul's Flooring and occasionally for other companies. [5] The Regulator concedes that corroboration is not required before the Commission can accept the appeal. The Appellant is required however to establish on the balance of probabilities that Mr Cooper's period of employment with Biggs & Sons was a significant contributing factor to his contracting lung cancer in circumstances where there is no corroboration of the work he performed and the Statutory Declaration provides limited information. -- 2 of 7 -- 3 [6] In relation to whether Mr Cooper's employment with Biggs & Sons was a significant contributing factor, the Regulator submits the Appellant is asking the Commission to infer that Mr Cooper regularly inhaled asbestos dust. However, Mr Cooper did not state in his Statutory Declaration that he had done so nor does he describe anything that may safely lead to an inference that he inhaled the dust. [7] The Commission accepts that the Appellant must establish on the balance of probabilities that Mr Cooper's employment with Biggs & Sons was a significant contributing factor to his contracting the adenocarcinoma. Hall P said in MacArthur v WorkCover Queensland: "The common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish possibility. … The process of determining a matter on the balance of probabilities is neither a sterile exercise in mathematics nor a mechanical application of probabilities. 'The predominant position in Australian case law is that a balance of probabilities test requires a court to reach a level of actual persuasion', Seltsam Pty Ltd v McGuiness [2000] NSWCA29; (2000)49 NSWLR 262 at para 136 per Spigelman CJ and the authorities, monographs and articles there cited."1 [8] Hall P also commented in MacArthur: "There is a clear, though in its application a difficult, distinction between reasonable deduction from evidence and mere conjecture."2 [9] In making that statement, Hall P was drawing on the decision in Jones v Great Western Railway Co where Lord MacMillan said: "The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference."3 [10] It is not necessary for the Appellant to prove every fact or conclusion of fact upon which the issue depends. Legitimate and reasonable inferences can be drawn.4 1 MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101. 2 Ibid. 3 Jones v Great Western Railway Co (1930) 47 TLR 39, 45. 4 Jones v Great Western Railway Co (1930) 47 TLR 39, 45 (Lord MacMillan) quoting Parfitt v Lawless LR 2 P & D 462, 472 (Lord Penzance). -- 3 of 7 -- 4 [11] In Seltsam, Spigelman CJ held that the test is whether, on the basis of the primary facts, it is reasonable to draw the inference5 and referred to a fact being established by a process of combining primary facts like "strands in a cable."6 Can it be inferred that Mr Cooper regularly inhaled asbestos dust while employed by Biggs & Sons? [12] In relation to his employment with Biggs & Sons, Mr Cooper stated: "13. Initially I performed maintenance and repair work on refrigerators, however after a short period I moved into flooring. As noted above, that was where the money was. It was a very dirty, dusty job, and for that reason, no one wanted to do it. Similar to my employment with the company in Inverall (sic), the vast bulk of my work whilst employed by Biggs involved laying asbestos vinyl floor tiles. Biggs generally took on larger jobs, and I recall laying asbestos vinyl floor tiles in shopping centres, hospitals and schools. In shopping centres and hospitals we laid the tiles just about everywhere. In schools we generally laid the asbestos vinyl floor tiles in hallways, science labs and wet areas. 14. As noted above, prior to laying the asbestos vinyl floor tiles we had to cut them so that they were the correct shape. Cutting the asbestos vinyl floor tiles released visible dust into my breathing and working environment. We then sanded the floor and laid the tiles. Similar to my employment with the company in Inverall (sic), I returned home from work at the end of every day covered in asbestos dust. 15. During the course of my employment with Biggs I was also required to rip up old asbestos vinyl floor files in order to replace them with new ones. This was very dusty work, as the old asbestos vinyl floor tiles were very brittle and broke apart easily, releasing asbestos dust and fibre into my breathing and working environment. . . . 20. During the course of my various periods of employment and self-employment outlined above, I generally worked 12 hour days, 6 to 7 days per week. As the vast bulk of my time was spent ripping up and laying asbestos vinyl floor tiles, I often returned home at the end of each day absolutely covered in dust. As noted above, this was very dirty, dusty work. Because of this, no one wanted to do it, which meant it paid quite well." [13] Evidence from Michael Kottek, Occupational and Environmental Health Consultant, was tendered by consent. Mr Kottek's evidence confirms that Mr Cooper would have regularly handled floor tiles which contained asbestos while working in Queensland from 1965 to the early 1990s. 5 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29, [88]; (2000) 49 NSWLR 262. 6 Ibid [91]. -- 4 of 7 -- 5 [14] In my view the evidence establishes the following primary facts - that whilst employed by Biggs & Sons:  most of Mr Cooper's work involved the laying and removing of floor tiles;  he spent a large proportion of his working hours performing this work;  the floor tiles were made of asbestos;  Mr Cooper was required to cut the asbestos floor tiles;  the process of cutting the floor tiles released visible dust;  old asbestos floor tiles broke when being removed and also released dust; and  Mr Cooper returned home from work each day covered in dust. [15] I consider that it is reasonable to infer that the dust referred to by Mr Cooper contained asbestos. [16] Mr Cooper did not provide any description of where he was positioned in undertaking the flooring work. Despite this omission, it is a reasonable inference that Mr Cooper would have been kneeling when laying and removing the floor tiles. Further, in that position, and when cutting the floor tiles, Mr Cooper's head would have been over or in close proximity to the floor tiles. Mr Cooper said that the dust from these activities was released into his breathing environment. The dust was also visible on his clothes. All of this leads to the inference that he was inhaling asbestos as he worked. In the circumstances I consider the evidentiary onus has been met by the Appellant. Was Mr Cooper's employment with Biggs & Sons a significant contributing factor to his injury? [17] Mr Cooper was exposed to asbestos dust during his employment in New South Wales, with Biggs & Sons and for approximately a 20 year period after ceasing employment with that company. Additionally, Mr Cooper smoked for a period, ceasing when he turned 35 years of age in 1972. As the Regulator noted, at least part of the period Mr Cooper smoked coincided with his employment at Biggs & Sons. The Regulator also noted that Mr Cooper did not mention his smoking in his Statutory Declaration. [18] Dr Robert Edwards, Sleep and Thoracic Physician, first provided an opinion on whether Mr Cooper's employment in Queensland would have been a significant contributing factor to his lung cancer. Dr Edwards was provided with Mr Cooper's Statutory Declaration, his medical records and the Death Certificate. Dr Edwards learnt of Mr Cooper's smoking habit through his medical records. He concluded that Mr Cooper had "a significant heavy asbestos exposure while working in Queensland." [19] However, for about 20 years, Mr Cooper was self-employed. Dr Edwards was asked to provide a further opinion relating to Mr Cooper's employment with Biggs & Sons. He again reviewed the Statutory Declaration and concluded that Mr Cooper would have been exposed to a significant amount of asbestos dust in his work with Biggs & Sons. In reaching that opinion he referred specifically to Mr Cooper's work in cutting tiles; that tiles would break when he was removing them creating asbestos -- 5 of 7 -- 6 dust and that such dust would also be released when he was sanding the floor before new tiles were laid. [20] Dr Edwards opined: "He did this for 10 years and would have had medium exposure. 10 years of medium exposure would have contributed to a significant amount of asbestos dust and in my opinion would have fulfilled the Helsinki Criteria of accumulating 25 fibres/mL-years during that period alone. Therefore I consider, on the balance of probabilities, that Mr Leslie Cooper's asbestos exposure during his employment with Biggs & Sons from a date in about 1965 to a date in about 1975 played a significant role in the development of his condition of lung cancer. This is based on the fact that he has an adequate history of asbestos exposure during that period to have made a significant contribution to it in accordance with the Helsinki Criteria." [21] Under cross-examination Dr Edwards said that Mr Cooper's smoking habit was a contributing factor to the injury. However, it was the combination of asbestos exposure that makes the risk from cigarette smoking dramatically worse. He maintained his opinion that even though Mr Cooper was a smoker, the asbestos exposure was a significant contributing factor to the development of the lung adenocarcinoma. [22] Mr Grant-Taylor QC, appearing for Mr Cooper, made the following assumptions:  that Mr Cooper's smoking was a significant contributing factor to his contracting the adenocarcinoma;  that his exposure to asbestos in New South Wales was a significant contributing factor to his contracting the adenocarcinoma; and  Mr Cooper's work in Queensland while he was not a worker, as statutorily defined, was a significant contributing factor to his contracting the adenocarcinoma. [23] In Calder v Simon Blackwood (Workers' Compensation Regulator),7 O'Connor DP relied on the decision of Hall P in Q-COMP v Green8 to state that where the Act speaks of employment being a significant contributing factor in s 32(1), the word "significant" is used in the sense of "important" or "of consequence". O'Connor DP held: "The use of 'a' significant contributing factor indicates that there can be more than one significant factor."9 [24] Whether Mr Cooper's employment with Biggs & Sons was a significant contributing factor to his contracting adenocarcinoma is a mixed question of law and fact10 and 7 Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101, [33]. 8 Q-COMP v Green (2008) 189 QGIG 747. 9 Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101, [34]. -- 6 of 7 -- 7 the Commission is usually guided by medical evidence.11 The Commission has determined that Mr Cooper inhaled asbestos dust whilst employed by Biggs & Sons. Dr Edwards expressed the opinion that Mr Cooper would have been exposed to a significant amount of asbestos dust during his employment with Biggs & Sons and this would have been sufficient to establish his employment at Biggs & Sons as a significant contributing factor to his injury. Although the Commission does not discount the contribution made by the other factors, including smoking, all that needs to be established is that his employment at Biggs & Sons was one significant contributing factor to the claimed injury. I have accepted this has been established on the evidence. [25] The Commission sets aside the decision of the Regulator and substitutes a new decision that Mr Cooper's application for compensation is one for acceptance. [26] Costs are reserved. 10 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48, [40]. 11 Q-COMP AND Darren Bruce Parsons [2007] 185 QGIG 1, 3. -- 7 of 7 --