Cocks v WorkCover Queensland [2000] ICQ 34 (2000) 165 QGIG 11

1 September, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 309 – appeal against decision of industrial magistrate Allan Cocks AND WorkCover Queensland (No. C20 of 2000) PRESIDENT HALL 18 August 2000 DECISION This is an appeal against the decision of an industrial magistrate given at Southport on 29 February 2000. The background facts are now not in dispute and may be shortly stated. The appellant, previously employed as a science and sports teacher at St Michael’s College, Carrara, fell to the floor outside the office of the assistant principal on 8 July 1998. He was observed, immediately prior to the fall, to motion with his hand in the air before turning and falling forward to the ground around the corner from the office doorway. The appellant did not trip and he was not pushed. There had been nothing abnormal in his appearance immediately prior to the fall. Neither of the assistant principal nor a secretary of the college who observed the fall noticed any particular part of the appellant’s body as he hit the floor. They heard a thud and a bang. Subsequently, the assistant principal observed the appellant lying on the floor outside his office with his head and left side up against the door jam where he wriggled and gasped for air for 3 to 5 minutes after the fall. An ambulance was summoned and the appellant was taken to the Gold Coast Hospital. X-ray’s indicated compression fractures of T3, T4 and T7 thoracic vertebrae. It is common ground that the compression fractures were attributable not to the fall but to a seizure or convulsion. On admission, no marks to the appellant’s head were observed and, on the whole of the transcript of the evidence before the industrial magistrate, I think that I must proceed on the basis that a finding that the appellant struck his head when he fell is not open. At one time, the appellant would have had a claim. At one time it was necessary to show only a temporal connection between employment and an injury. Here, given the spontaneous fall, the immediate emergence of the symptoms flowing from the thoracic injury and the known fact of a seizure or convulsion, an inference based on contemporaneity would have been difficult to resist. However, at the material time, s. 34 of the WorkCover Queensland Act 1996 required an applicant for payments by way of compensation to establish not only that the injury was a “personal injury arising out of, or in the course of, employment” but also that the employment was “the major significant factor causing the injury”. To meet the legislative requirement the appellant gave evidence, which on a fair reading of the transcript must be accepted and which is in any event not now challenged, that over the week prior to the fall he had been working excessive hours to mark work submitted by his students in preparation for their return to school from vacation. The case developed was that by 8 July 1998 the appellant was suffering from sleep deprivation and that it was the sleep deprivation which caused the seizure or convulsion. To establish that sleep deprivation was capable of causing the seizure or convulsion and did in fact cause the seizure or convulsion, the appellant relied on the evidence of a consulting neurologist, Dr Jeffery Boyce. In all, Dr Boyce provided three reports, each which was tendered in evidence. On any fair reading of the reports, Dr Boyce asserted that the appellant had suffered from sleep deprivation and that the sleep deprivation had caused the seizure or convulsion. The difficulty commenced when Dr Boyce entered the witness box. It rapidly became apparent that Dr Boyce had at all times had it in his mind that the appellant had struck his head when he fell. I accept the submission of Mr Boulton of counsel, who appears for the appellant, that many of the questions put to Dr Boyce about the effect of the appellant’s head striking either the floor, the steps or the wall, were hypothetical. But the matter of the appellant hitting his head was introduced by Dr Boyce and so introduced as to make it clear that Dr Boyce had formed his opinion on the assumption that the appellant had struck his head. Dr Boyce was cross-examined about the cause of the appellant’s fall. He was clear that he did not know the cause of the fall. At one point Dr Boyce observed “But, you’re asking me what sort of – why on earth did he fall down?” and went on to say “I don’t think anyone can tell you that.”. In answering an earlier and somewhat convoluted question, Dr Boyce had said of the hypothesis that the seizure or convulsion was the cause of the fall “I think it’s possible to say that it probably isn’t.”. However, at the end of the day, Dr Boyce was content to summarise his opinion as follows:– “Yes? . . . what I’m meant there is that if for instance one took Allan Cocks, how might have had the same fall and struck his head with the same force, but didn’t have the sleep deprivation that he had, it’s less likely that he would have had the convulsion. All right. Yes? . . . That’s what I meant. Yes. What if it was the case that – as you’ve heard the – I’ll just explain to you before what some – what the evidence was, leading up to when he started to fall – if it was the case that he didn’t hit his head heavily, but convulsed when he was on the floor, does that change your idea to any – effect your opinion in any way? – I don’t think it does in some much as I accept that there are some unknown factors in this equation. The factor that one can put in relation to this man as to why he would have a convulsion at that time, the most significant factor is in the absence of all other things, whether he struck his head or otherwise, is the lack of sleep.”. I hasten to add that the industrial magistrate made no adverse comment whatever about Dr Boyce’s evidence. It would be impertinent to Her Worship and unfair to Dr Boyce to proceed on the basis that he was defending his earlier opinion. However, I consider that his ultimate opinion may fairly be described as robust. On the facts of the case, to assert that the cause of the fall was unknown, is also to assert the presence of an unknown condition. To assert in the presence of an unknown condition that the sleep deprivation was, not a cause of the seizure or convulsion, but the major significant cause of the seizure or convulsion, is to take a stride rather than a step. For all of that, if Dr Boyce’s opinion, which the industrial magistrate plainly regarded as considered and objective, had been the only material before the Industrial Magistrate’s Court, I consider that Her Worship would have been justified in allowing the claim for compensation. However, Dr Boyce’s evidence was not uncontradicted. Dr Poulgrain, a neurological surgeon, gave evidence that sleep deprivation would not have caused the seizure or convulsion to which the thoracic injury was attributable. I reject the submission that on the question whether the seizure or convulsion was caused by sleep deprivation, Dr Poulgrain was prepared to defer to the opinion of Dr Boyce on the basis that a neurologist was better qualified to answer the question. The issue on which Dr Poulgrain deferred to Dr Boyce was the issue whether sleep deprivation would cause an epileptic to have a fit. (On one view of the evidence the appellant had some tendency to epilepsy, but even on that view of the evidence, it was a very mild tendency towards epilepsy, certainly not meriting a conclusion that -- 1 of 2 -- 12 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 September, 2000 the appellant was an epileptic.) Neither do I accept that Dr Poulgrain’s evidence should be discounted because, like Dr Boyce, he was unable to nominate the cause of the seizure or convulsion. A medical practitioner may well be in a position to assert that a particular factor was not causative of a condition whilst being unable to nominate the cause of the condition. Indeed, in this very matter, both Dr Boyce and Dr Poulgrain were able to assert that the appellant’s consumption of alcohol in the period preceding the fall was not a cause of the seizure or convulsion. Faced with a considered medical opinion that the sleep deprivation was not a cause of the seizure or convulsion and another considered medical opinion, but a robust one, asserting that the sleep deprivation was the major significant cause of the seizure or convulsion, the industrial magistrate was unable to pronounce herself satisfied on the balance of probabilities that the sleep deprivation was the major significant cause of the seizure or convulsion. Her Worship and I are ad idem. The appeal is dismissed. The appellant is to pay the costs of the respondent of and incidental to the appeal assessed as costs would have been assessed if this had been a supreme court matter. Dated this eighteenth day of August, 2000. D.R. HALL, President. Released: 18 August 2000 Appearances:– Mr K. Boulton instructed by Attwood Marshall, Solicitors, for the appellant. Mr G. Jones instructed by WorkCover Queensland for the respondent. ########################################################################################################################## # -- 2 of 2 --