Adermann v Simon Blackwood (Workers' Compensation Regulator) & BHP Coal Pty Ltd [2015] ICQ 15

INDUSTRIAL COURT OF QUEENSLAND CITATION: Adermann v Blackwood [2015] ICQ 015 PARTIES: SAM ADERMANN (appellant) v SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (respondent) BHP COAL PTY LTD (intervener) FILE NO/S: C/2015/4 PROCEEDING: Appeal DELIVERED ON: 22 April 2015 HEARING DATE: 22 April 2015 MEMBER: Martin J, President ORDER/S: Appeal dismissed. CATCHWORDS: WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where the appellant worked at a mine site – where a number of incidents are said to have contributed to the injury – where there was evidence before the Commission that the workplace incidents were of lesser significance than non-workplace related factors – where the appellant sought to overturn findings of fact – whether the Commission erred in finding that the appellant had not discharged his onus of satisfying the Commission that he had sustained an injury within the meaning of that term in the Workers’ Compensation and Rehabilitation Act 2003 – whether the Commission erred in law in finding that the appellant’s injury was not precluded by reasonable management action – whether the Commission acted contrary to the weight of the evidence Coal Mining Safety and Health Act 1999 Workers’ Compensation and Rehabilitation Act 2003, s32(5) CASES: Coulton v Holcombe (1986) 162 CLR 1 Irving v Blackwood [2014] ICQ 30 Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R 476 -- 1 of 5 -- 2 APPEARANCES: S Adermann in person SP Sapsford for the respondent directly instructed by the Regulator GC O’Driscoll for the intervener instructed by Mullins Lawyers [1] In January 2012, Mr Adermann, the appellant, commenced work at the Saraji Mine as a production operator. He ceased work at the mine on 22 September 2012. In December 2014, Deputy President Kaufman dismissed an appeal by Mr Adermann against the decision of the Regulator which had confirmed the decision of BHP Coal Pty Ltd, a self- insurer, to reject Mr Adermann’s application for workers’ compensation. The appellant relies upon three grounds of appeal: (1) That the Deputy President erred in law in finding that the appellant had not discharged his onus of satisfying the Commission that he had sustained an injury within the meaning of that term in the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”); (2) That the Deputy President erred in law in finding that the appellant’s injury was not precluded by reasonable management action as required by section 32(5) of the Act; and (3) That the Deputy President acted contrary to the weight of the evidence in finding that the appellant’s claim was not for acceptance. [2] In his written submissions and in his oral argument today, the appellant refers to a number of the matters dealt with by the Deputy President in his reasons. In particular, he refers to the Deputy President’s extraction of part of something that the appellant had himself said. The Deputy President used it to indicate that it was no surprise to him that the appellant would find himself at odds with fellow workers. I do not think that this is an important part of the case, but I deal with it because the appellant obviously does. [3] The appellant said that the use of the quotation was inappropriate because it did not appear in its full context. Whether that is so or not does not matter because it was not used by the Deputy President to formulate his conclusions. It was an introduction to some of the matters which had been relied upon by the appellant in presenting his case, but, as I will deal with later, it was not part of the reasoning process which led to the decision under appeal. [4] The appellant conducted a case in the Commission which required consideration of a number of incidents which had occurred at work. One was shortly after he commenced employment when he had a disagreement about other workers who were smoking at the worksite. Other issues concerned the operation of equipment. While the appellant has clothed two of the grounds of appeal with a description of “error of law,” the fact is that what the appellant is seeking to do is to overturn findings of fact. [5] In addition to that, the appellant, in oral submissions, also criticised the evidence of some witnesses and their credibility. This was based in part on what the appellant said were -- 2 of 5 -- 3 admitted breaches of safety legislation. That was not argued before the Commission. The witnesses were not cross-examined on those so-called breaches, and there was no submission that as a result of what they said in evidence on that issue, they should not be believed on other issues. [6] The extent to which it is possible in an appeal to this court to overturn findings of fact has been dealt with in decisions of this court including Irving v Blackwood1. At paragraph 16 of that decision, part of what the High Court said in Coulton v Holcombe2 is set out. The High Court said: “To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main arena for the settlement of disputes would move from the court of first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish.” [7] It is well recognised that appellate courts are limited in the manner in which they can deal with findings of fact made by the primary tribunal. The principles which are to be applied were summarised by Justice Muir in Robert Bax & Associates v Cavenham Pty Ltd3, in particular at paragraphs 84 through to 86: [84] In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ, discussing the circumstances in which an appellate court should interfere with a trial judge‘s findings of fact, said: ‘… the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge‘s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.’ 1 [2014] ICQ 30. 2 (1986) 162 CLR 1. 3 [2013] 1 Qd R 476. -- 3 of 5 -- 4 After referring to the nature of an appeal by way of re-hearing, their Honours said: ‘The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.’ [85] In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said: ‘More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge‘s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.’ Gleeson CJ, Gummow and Kirby JJ, in their reasons in Fox v Percy, referred to Devries as one of three cases in which the High Court had reiterated: ‘its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.’ [86] Their Honours observed that those three decisions ―were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.” (citations omitted) [8] There is no dispute that the appellant suffered an injury. The only issue is whether it was an injury that arose out of his employment in circumstances where the employment was -- 4 of 5 -- 5 a significant contributing factor. In considering that question, the Deputy President relied on the expert evidence of a psychiatrist, Dr Nothling. Dr Nothling gave evidence that the smoking issue was an unlikely contributor to the appellant’s injury. [9] I was referred by Mr Adermann to Dr Nothling’s re-examination in which some scenarios were put to him. He was asked whether, if the smoking issue had continued, that would be a stressor. He said that the adjustment disorder would be partly due to the ongoing smoking issue. I note he said “partly due”. In any event, there was no compelling evidence to support a finding that the smoking issue continued after January of that year. [10] Likewise, the issue concerning instructions regarding the operation of machinery were also said by Dr Nothling to be an unlikely contributor. It is important to note that Dr Nothling in cross-examination had a number of matters put to him concerning the physical health of the appellant and the circumstances surrounding the termination of his wife’s employment. Those circumstances were accepted by the Deputy President as having occurred, but there appears to have been no argument about that. Dr Nothling, after being asked to consider those matters, said that the appellant’s wife’s loss of employment was certainly a very significant factor. He said that his ongoing medical problems together with his wife’s loss of employment were significant factors. Now, the other factors – that is, the smoking issue and the dump truck issue and the like – were of lesser significance. [11] It was open then for the Deputy President to accept that evidence, and he did so. The appellant has concentrated on the issues surrounding smoking and the driving of vehicles, but the matter of concern in this appeal is whether or not there was evidence to support the Deputy President’s findings. Dr Nothling’s evidence was available and did support those findings, and there was evidence to support Dr Nothling’s opinion. Dr Nothling’s evidence was not inherently improbable. [12] The appellant also argued today that the Deputy President’s reasons concerning reasonable management action ignored the provisions of the Coal Mining Safety and Health Act 1999. When his Honour dealt with this issue – that is, the applicability of section 32(5) of the Act – he did so briefly because he had already expressed his conclusions as to the major matter in issue. These comments by the Deputy President do not relate to or affect his earlier findings. [13] In further oral submissions, the appellant also criticised the reasons of the Deputy President as being insufficient. That was not a ground of appeal. In any case, while the reasons were brief, they did expose the Deputy President’s reasoning. [14] In those circumstances, the appellant has not demonstrated any error on the part of the Commission, and the appeal is dismissed. -- 5 of 5 --