Fielder v WorkCover Queensland [2004] ICQ 8 (2004) 175 QGIG 871

5 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 871 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate Goodman Fielder and WorkCover Queensland (No. C73 of 2003) PRESIDENT HALL 19 February 2004 DECISION Leupena Vaafusuaga lodged an application for compensation on 20 April 2001. It related to an injury alleged to have occurred on 3 April 2001. The application was rejected. Mr Vaafusuaga sought a review. On 14 September 2001 the Statutory Review Unit set aside the rejection and allowed the application. Goodman Fielder (the employer) appealed to the Industrial Magistrates Court against the decision of the Statutory Review Unit. By a decision of 20 May 2003 the decision of the Statutory Review Unit was confirmed by the Industrial Magistrates Court. Goodman Fielder now seeks relief from this Court. It is common ground that the worker was unfortunate enough to suffer from a degenerative back. The case advanced on behalf of the worker was that the degenerative condition was a disease within the meaning of s.34(3)(b) and that it had been aggravated by the incident of 3 April 2001. In those circumstances it was contended that the worker had suffered an “injury” within the meaning of s. 34. The contention of Goodman Fielder has at all times been (a) that the incident of 3 April 2001 did not occur and (b) that in any event employment was not a significant contributing factor to any aggravation of the worker’s degenerative condition which may have occurred. The evidence that the incident of 3 April 2001 occurred came from the worker himself. The Industrial Magistrate accepted the worker as a credible witness and acted upon his evidence. The appellant now attacks the finding of credibility. I accept unreservedly that on an appeal from an Industrial Magistrate, which by s. 509 of the WorkCover Queensland Act 1996 (the relevant Act at all material times) is by way of rehearing, this Court has a duty to intervene if the Industrial Magistrate is shown to be wrong even on questions of fact and questions of credibility. I accept also that ritual incantation about the advantages of seeing and hearing witnesses does not render a decision of an Industrial Magistrate analogous to a decision of a jury. Indeed, in many appeals under s. 509 there will be no advantage because the Industrial Magistrate will have taken evidence by telephone and a tape-recording of the evidence has been taken. However, notwithstanding the warnings about reliance upon observations of demeanour now found in the texts, there will be cases in which a tribunal at first instance will enjoy an advantage because the tribunal at first instance has had the opportunity to see and hear a witness. Here, the Industrial Magistrate did enjoy an advantage in seeing and hearing the worker’s evidence. The worker is a process worker of (very) limited education. He is not a native Australian. His difficulties with the English language are so significant that his evidence was taken through an interpreter. All of that is of some moment. Without descending into the detail, the passages in the worker’s evidence to which I have been taken on the transcript and which were said to demonstrate that the worker was dishonestly tailoring his evidence to advance his case, are overwhelmingly passages which raise issues about whether the witness and the questioner where talking about the same matter and whether the witness understood what he had been asked. The Industrial Magistrate had the opportunity to observe both the witness and the interpreter. His Worship heard the whole of the worker’s evidence and was inevitably in a better position to form a view about the worker’s credibility than this Court, even if the tape recording was played. There is neither judicial blindness nor dereliction of duty in recognising an advantage when there is one. It is the submission of the appellant that the conduct of proceedings in the Industrial Magistrates Court was such that any advantage which His Worship may otherwise have had was lost. The unhappy history of the matter, and the Industrial Magistrate seems to be wholly innocent of fault, was that it came before the Industrial Magistrates Court on 15 August 2002 (when the worker’s evidence was taken) and was adjourned until 19 and 20 May 2003 when certain other evidence was taken. It is submitted that the Industrial Magistrate could not have had a sufficient recollection to enable him to make a finding about credit. If that be so, the Industrial Magistrate did not act judicially in referring to recollection and making findings of credit. His Worship’s observation at commencement on the second day of hearing; “You have to appreciate I have forgotten. This is something to do with a bread place?” seems to me to be feigned judicial ignorance. Whilst the comment would have been better not made, particularly after His Worship had expressed a reluctance to hear the case because of His Worship’s pending retirement, it does not provide any foundation for a finding that His Worship acted on a claimed recollection which His Worship did not have. In any event, His Worship’s recollection must have been refreshed by the end of the trial. Counsel for the appellant launched a detailed and vigorous attack upon the worker’s evidence. Counsel was entitled to do that. Inconsistencies in the worker’s evidence appeared on so many issues and with such frequency on those issues as to give rise for apprehension that it was a case not of honest error but of dishonest deceit. Counsel for the respondent (properly) replied to those submissions. Whatever measure of recall of the worker’s evidence the Industrial Magistrate may have had at the commencement of the second day, the exercise in revision forced upon His Worship was calculated to bring it all back. I have to accept that the one example of honest error by the worker which was given by the Industrial Magistrate demonstrates a misunderstanding of the evidence. The appellant was entitled to a more fulsome decision and more courteous treatment than it received, but that is no basis to go behind a finding about credit based on hearing and seeing the witness in a case in which seeing and hearing the witness was a clear advantage. -- 1 of 2 -- 872 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 March, 2004 The medical evidence is such that one must accept, as has been accepted in other cases, that the degenerative spinal disease had reached the point at which it might be exacerbated and rendered symptomatic by stretching to get something out of a pantry, bending over to tie shoelaces or turning over in bed. What happened to the worker in this case might well have happened to him at his home, on a council bus or at a religious service. However, once the Industrial Magistrate accepted that the incident of 3 April 2001 did in fact occur and accepted that there was proximity of time between the incident and the onset of a pain it was, in the absence of any evidence about a competing causal incident, inevitable that the Industrial Magistrate would conclude on the balance of probability that the worker’s employment had been “a significant contributing factor to the aggravation”. On the state of the evidence any other conclusion would be speculation. I dismiss the appeal. I reserve all questions of costs. Dated 19 February 2004. D.R. HALL, President. Released: 19 February 2004 Appearances: Dr G. J. Cross, instructed by Abbott Tout, Lawyers, for the appellant. Mr S. P. Sapsford, directly instructed for the respondent. -- 2 of 2 --