Chalk v WorkCover Queensland [2002] ICQ 50 (2002) 171 QGIG 327

8 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 327 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate Wendy Ann Chalk AND WorkCover Queensland (No. C73 of 2002) PRESIDENT HALL 29 October 2002 DECISION On 29 January 2001 WorkCover rejected the appellant’s application for compensation under s. 158 of the WorkCover Queensland Act 1996. The appellant sought a statutory review of that decision. The decision of the Review Unit of 28 May 2001 was adverse to her. Pursuant to s. 498 the appellant appealed to the Industrial Magistrate at Maroochydore against the review decision. The appeal was unsuccessful. The appellant now seeks relief in this Court. It is not in dispute that the appellant’s spouse, Robert Charles Chalk, was at all material times a “worker” within the meaning of Chapter 1 Part 4 of the WorkCover Queensland Act 1996 and that St Vincent de Paul Society was his “employer” for the purposes of the legislative scheme which there appears. It is also common ground that the appellant was a dependant within the meaning of Chapter 1 Part 4 of the Act. It is common ground that on or about 10.30 a.m. on Monday 10 January 2000 whilst engaged in his employment and driving his employer’s motor truck on the Sunshine Motorway, he felt a pain in his chest. Shortly thereafter he collapsed and died. There is no dispute that Mr Chalk died of an acute coronary artery occlusion. What has at all times been in dispute is whether, within the meaning of s. 34(3)(d), Mr Chalk’s employment was a significant contributing factor to the death which constituted the injury. The resolution of the conundrum turned on whether the infarction causing death occurred on Friday 7 January or on the Monday following. Fundamentally, whether the appellant, who carried the onus of proof, had brought the case within s. 34(3)(d) was one for the Industrial Magistrate to determine upon the appeal by way of hearing de novo as a matter of mixed law and fact. However, as not infrequently occurs, the proceedings developed into a medical trial. Essentially, the Industrial Magistrate had to choose between the evidence of a Dr Galea and a Dr Hossack, both of whom were experts and both of whom gave evidence by telephone. The Industrial Magistrate chose to prefer the evidence of Dr Hossack who had concluded that Mr Chalk’s employment was not a significant contributing factor to the death which was the result of longstanding coronary artery disease attributable to a constellation of well-recognised risk factors for coronary artery disease. On the appeal the Industrial Magistrate’s decision to accept the evidence of Dr Hossack in preference to the evidence of Dr Galea was attacked on the ground that His Worship had failed to give adequate reasons for his decision. The criticism seems to me to be misplaced. In Housing Commission (NSW) v. Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 381 Hutley JA (with whom Samuels JA agreed) said: “The extent to which a Court must go in giving reasons is incapable of precise definition. A Court must not nullify rights of appeal by giving no or nominal reasons, but there is no duty to expound reasons so as to facilitate appeals. This applies particularly to the situation where a Judge has to decide between conflicting witnesses, including experts. The choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning.”. -- 1 of 2 -- QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 November, 2002 328 That passage seems to me to have been accepted by the majority, McPherson and Davies JJA in Cypressvale Pty Ltd v. Retail Shop Lease Tribunal [1996] 2 QdR 462 at 484. One may accept that the passage may not be elevated to a statement of general principle but reasons need never be given for preferring one expert witness to another in the event of conflicting opinions, ibid, at 477 per Fitzgerald P. However, here, the Industrial Magistrate expressly said at page 4: “In my assessment I found Dr HOSSACK the more impressive and convincing witness who gave his evidence on medical issues in a very creditable, detailed and confident manner.”. The appellant submits that the evidence of the treating general practitioner was that in his experience there was a category of case in which an infarction would be asymptomatic or “silent”. That evidence was supportive of Dr Galea’s evidence. It was said to follow that the Industrial Magistrate should have elaborated on his preference for Dr Hossack. The short answer is that in re-examination the general practitioner said that this was not such a case. The Industrial Magistrate was reduced to relying upon impression. That approach is unsophisticated, but it was open to the Industrial Magistrate and having declared that he was forced to make such a judgment His Worship was required to go no further. The appellant complains also of the use which the Industrial Magistrate made of evidence which fell from her in re-examination on 13 May 2002. The evidence, one should add, was not responsive to the question which the appellant had been asked. No objection was taken to the answer, but since neither counsel placed any reliance upon the evidence that should have been a matter of inconsequence. To understand the nature of the complaint now made it is sufficient to set out the relevant extract from the decision of the Industrial Magistrate at pages 3-4 (which includes the passage of evidence which, on the appeal, was the subject of some scrutiny): “To the question from Mr Diehm – ‘For what reason did you go home at about 2.00 pm?’, Mrs CHALK answered ‘Well, because it was a Friday and Rob wasn’t feeling well and he’d said so before he left in the morning before he got on the truck. When he came back still feeling that pain, the lady there said to me to take him home and see a Doctor. Well, we couldn’t see him on the Friday.’ [my underlining]. Neither counsel made any comment or submission on this evidence by Mrs CHALK. Her answer would clearly appear to show that Mr CHALK was not feeling well in the morning before he got in the truck and when he came back he was still feeling the pain. A reasonable conclusion would be that Mr CHALK was unwell and feeling pain before he delivered furniture on the Friday afternoon.”. The first criticism made is that since each party had conducted the case on the basis that Mr Chalk’s underlying condition was asymptomatic until certain lifting incidents in the course of his employment on Friday 7 January, and since all of the medical reports had been furnished on the basis that the condition was asymptomatic until the lifting incidents, His Worship erred in utilising the evidence to make a contrary finding and in acting upon that contrary finding. Reliance is placed on the unreported decision of the Western Australian Full Court in McMahon v. Griffin Coalmining Co Pty Ltd (16 May 1997) SCWA 144/96. With respect, it seems to me that when His Worship’s decision is read as a whole it is plain that it was as a consequence of the evidence of Dr Hossack that His Worship found that the appellant had not discharged the onus of proof. The passage seems to me to indicate no more than displeasure on the part of the Industrial Magistrate that His Worship had not had the advantage of an argument which would have enabled His Worship to support a decision based on opinion evidence by reference to some objective facts. The expressed reference to the circumstance that neither counsel had made submissions upon the evidence seems to me to indicate plainly enough that His Worship was perfectly well aware that the evidence was evidence upon which the Court was not being asked to act. Given that acknowledgement it would be extraordinary for an Industrial Magistrate to act upon the evidence, and nothing in His Worship’s reasons indicates that His Worship did act upon it. The second point taken about the evidence is that it was “all a mistake” and that whenever the appellant had said “Friday” she had meant to refer to the following “Monday” (which was the day upon which Mr Chalk passed away). At common law in civil proceedings (which do not involve the liberty of the subject) a decision would be overturned on the basis of such a submission only if the suggested “fresh evidence” was such that it was “almost certain” or “reasonably clear” that if the tribunal at first instance had had the advantage of the evidence, a different result would have flowed; see Carter v. Rosedale Sawmill and Another [1995] QCA 441 per Pincus JA and Thomas J. This is not such a case. If the Industrial Magistrate had heard the recantation and believed it, His Worship would have understood the facts to have been as the expert witnesses had assumed. There would have been an added reason for treating the matter as a trial by medical opinion. Inevitably, His Worship once again would have relied on Dr Hossack. Further, although His Worship described the evidence of the appellant as credible, His Worship did notice that on the issue of what happened after the heavy lifting on the Friday her evidence was not consistent with the evidence of the co-worker who had assisted Mr Chalk, and that on the issue of what occurred during a visit to Mr Chalk’s treating general practitioner on the Saturday her evidence was not consistent with that of the general practitioner. It is not inconceivable that, if the appellant had recanted during the course of the proceedings in the Industrial Magistrate’s Court, His Worship would have put her evidence to one side. The common law rules cannot apply automatically to the statutory discretion at s. 509(3) of the WorkCover Queensland Act 1996 to restrict the express statutory discretion which is, in any event, expressed by reference to “additional” evidence rather than “fresh” evidence; compare CDJ v. VAJ (1998) 197 CLR 172 at 185 per Gaudron J. However, the subject matter of s. 509 is an appeal from hearing de novo by a court required to observe procedural rules calculated to achieve justice between the parties. Further, such an appeal is available only where the administrative review by the Statutory Review Unit has failed to bring the dispute to a satisfactory resolution. The issues are entirely analogous to the issues in civil litigation at common law. It would, I think, be anomalous if a more generous view were taken of the circumstances in which the decision of the tribunal at first instance should be upset on the basis of recantation of evidence. I dismiss the appeal. I reserve the question of costs. If the parties are unable to agree about the matters of cost they should contact my Associate to establish a regime for dealing with the matter by way of written submissions. Dated 28 October 2002. D.R. HALL, President. Released: 29 October 2002 Appearances: Mr G. W. Diehm, instructed by Butler, McDermott & Egan, Solicitors, for the appellant. Mr B. Thomas, instructed by WorkCover Queensland, for the respondent. -- 2 of 2 --