Briffa v Q-COMP [2005] ICQ 37 (2005) 179 QGIG 70

[Extract from Queensland Government Industrial Gazette, dated 2 September, 2005, Vol. 180, No.1, pages 70-71] INDUSTRIAL COURT OF QUEENSLAND Workers’ Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate Robert Martin Briffa AND Q-COMP (No. C24 of 2005) PRESIDENT HALL 19 August 2005 DECISION By an Application for Damages Certificate dated 18 November 2002 and filed on 20 November 2002, the Appellant sought compensation for a neck injury said to have been sustained in the course of his employment. WorkCover rejected the application on the ground that the Appellant’s employment was not a significant contributing factor to any injury to his neck. The Appellant sought a Statutory Review. The Review Officer confirmed the decision of WorkCover Queensland on the basis that the injury did not arise out of, or in the course of the Appellant’s employment. There was a further appeal to an Acting Industrial Magistrate at Southport. On that appeal, which was by way of a hearing de novo, the Appellant carried the onus of proof. The critical issues, were: whether one applied s. 32 of the Workers’ Compensation and Rehabilitation Act 2003 (as the acting Industrial Magistrate did) or s. 34 of the WorkCover Queensland Act 1996 (as the Acting Industrial Magistrate should have done); whether there was a physical injury to the Appellant’s neck; whether any such physical injury arose out of or in the course of the Appellant’s employment; and whether the employment was a significant contributing factor to the injury. The Appeal failed. Mr Briffa now exercises his right of Appeal to the Industrial Court of Queensland. The Appeal to this Court is by way of re-hearing on the record. “Re-hearing” is here used in the sense elaborated upon in Warren v Coombes (1979) 142 CLR 531 and Fox v Percy (2003) 214 CLR 118. This Court if required to decide on the proper inference to be drawn from facts which were undisputed at first instance or which, having been disputed, are established by the findings of the Trial Judge. Whilst paying due deference to the very real advantage enjoyed by the tribunal of first instance in hearing and observing the witnesses, this Court is not to hide behind that advantage and is to consider whether incontrovertible facts or uncontested testimony demonstrate that findings which appear to be (or are even stated to be) based on credibility, are erroneous. All of that falls well short of a mandate to treat the Appeal as a re-trial on the record. The caveat is that appeals are about the correction of error and that this Court should not interfere with inferences which are easily open on the evidence at first instance on the ground (merely) that this Court would have preferred a different view. The Industrial Magistrate accepted on the evidence of Dr Tomlinson, a neuro-surgeon, that on 25 March 2003 (when Dr Tomlinson examined Mr Briffa for the purposes of providing a medico-legal report) Mr Briffa was suffering a physical injury to his cervical spine. No issue was taken about that finding by either party to the Appeal to this Court. What is challenged is the further finding by the Acting Industrial Magistrate that the physical injury was not caused by an incident which occurred somewhere between August and September 2001 at or about 1.00 p.m. to 2.00 p.m. whilst the Appellant was at work. Before going to the detail of the challenge, I should record that the evidence about the incident given by Mr Briffa was not consistent with the evidence of a work mate (Mr Callum) who was present at the scene. The Industrial Magistrate described Mr Callum as a “witness open, clear and reasonably detailed in respect to his conduct, conversations and observations involving Mr Briffa.”. The Acting Industrial Magistrate also commented on the credibility of Mr Kelinitz, the relevant employer representative. After a somewhat critical review the acting Industrial Magistrate ultimately concluded that the gentleman was an “honest witness”. The Acting Industrial Magistrate was less charitable about the Appellant’s evidence. Although at one point His Honour observed: “I found Mr Briffa answered questions in a reasonably clear and detailed manner, and provided general explanations as to certain issues of conflict as raised by Mr Sapsford in cross-examination.”. But His Honour went on to say; “there appears to be a number of areas of clear concern in respect to Mr Briffa’s evidence”. The decision expressly voices concern about “the issues involving his conduct on the day of the injury, and of his level of communication in relationship with his employer”. Later in the decision His Honour referred to “Mr Briffa’s personal conduct in failing to directly and correctly report the incident to the site safety officer” and the “general lack of particularity to Q-COMP, including the failure to specifically nominate the correct date of the alleged incident”. The Acting Industrial Magistrate’s concerns have a legitimate basis. The Appellant’s failure to report the alleged incident to the on-site “safety officer”, though a breach of his obligation to his employer, is not in itself a matter of moment. It becomes significant because there is an issue about whether any injury occurred on the day of the incident at work. An obvious reason for not reporting an “injury” is that the injury did not occur. The Appellant’s very considerable delay in seeking appropriate medical assistance may also be explained on that ground and there is a clear conflict of evidence between Mr Callum and the Appellant about the incident which occurred. The Appellant gave evidence that as he was descending a ladder, at or about the fourth or fifth rung from the ground, he missed one of the steps, fell back, adopted a “tucked up” position and hit the slab. He said that his neck was -- 1 of 2 -- 2 wrenched straight back and he felt pain in the region of his coccyx and a slight pain in his neck. The evidence of Mr Callum was that the Appellant had been working at or about the fifth rung of the ladder from the ground. In descending he slipped at or about the third or fourth rung, came down clumsily, landed on his feet and staggered before falling. There was also the evidence of Mr Callum that at the time the Appellant did not complain that anything serious had happened. It must be accepted that immediately after the accident the Appellant took a short period of time off work. But there is an abundance of evidence that he then resumed very arduous labour including work on a construction site at St Lucia where he carried 20kg bags of grout on his shoulders up fifteen stairs. On Mr Callum’s evidence, admittedly denied by the Appellant, the Appellant had also wrestled with Mr Callum and the Appellant’s step-son during a period in which they shared accommodation whilst working on a project on the Sunshine Coast. Counsel for the Appellant contends forcefully that the strength of the Appellant’s case is the evidence of Dr Tomlinson that the Appellant’s injury is consistent with the incident described by the Appellant. That is certainly the evidence of Dr Tomlinson. Dr Tomlinson did not go further than that. Moreover, advantage was not taken of the opportunity to test with Dr Tomlinson whether, if the injury occurred on the date advanced, it would have been possible for the Appellant to return to arduous work and, for example, to carry the bags of grout, or whether those activities might have aggravated an injury originally caused by the incident. Neither was Dr Tomlinson examined about a swimming incident which occurred on or about 2 February 2002. In cross-examination the Appellant described the incident as follows: “…witness me walking out in the water with them, standing in chest deep water and just rolling on a wave, just like breast stroking on a wave. And that was in between the flags at Miami and then lifting my head backwards and then rearing in pain and leaving the beach automatically. And not being there for six or seven minutes, yes.”. Whether that incident too was consistent with the injury observed by Dr Tomlinson will never be known. (There is an earlier, August 2001, swimming incident which related to the Appellant’s hip which is totally irrelevant). Neither will it be known whether the incident may be explained as an aggravation of an earlier injury. On the whole of that evidence the Acting Industrial Magistrate’s conclusion that: “I find there appear to be too much conflict in the evidence to make a finding in favour of Mr Briffa.”, was plainly open to him. The ultimate conclusion that the Appellant’s employment was not “a significant contributing factor” to any physical injury inevitably followed. I dismiss the appeal. I reserve all questions as to costs. Dated 19 August 2005 D.R. HALL, President Released: 19 August 2005 Appearances: Mr D. Kelly instructed by Parker, Simmonds, Solicitors for the Appellant. Mr S.P. Sapsford for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --