Cuskelly v Workers' Compensation Board of Queensland [1993] ICQ 19 (1993) 143 QGIG 589

588 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [6 August, 1993 6 August, 1993) •l r QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 589 #################################################### QUEENSLAND INDUSTRIAL COURT WORKERS' COMPENSATION ACT 1990 Industrial Relations Act 1990 s. 9.2(3) - appea l from decision of industr ia l mag i strate Heather Cuskelly AND Workers ' Compensation Boa rd of Queensland (No. C4 of 1993) JU ST ICE MACKENZIE, PRESIDENT 26 Ju ly 1993 Appeal - Industrial Magistrate - Time Li m its - In j ury - Tick B_, te . - Workers ' Compensation - Evidence - Credibility - Fmd,,:ig of ~act Based on Credibility of W i tness - Appeal D ism i ssed w,th Costs. JUDGMENT -- 1 of 2 -- 590 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [6 August, l 993 Th is Is an appeal from a decision of an Industrial Magistrate al Brisbane in which he found that the respondent had suffered an injury within the meaning of s. 2.1 of the Workers' Compensation Act 1990 by reason of being bitten by a tick in the course of her employment as a night filler in a Coles Supermarlcet. A ground of appeal concerning the Magistrate's decision to waive the time limi ta tion for clai ming compensation was abandoned before me. The Board's case rest ed on two premises:- (a) that the Industrial Magistrate ought not io have found that the tick bite occurred at work; and (b) that he ought not to have found that the all eged inju ry was a personal injury resulting from a tick bite and arising our of or in the course of the respondent's employment. The al leged injury occurred on 3rd January 1987. Th e Magistrate, who accepted that the respondent was "an hon est witness who gave her evidence to the best of her recollection, bearing in mind, of course, the time span involved", found th at Mrs C us kelly had tak en an em pty crate from a cold room where vegetab les were stored for the purpose of sitting in it whi le she filled the shelves. After about 15 to 20 minutes she felt a prick in the right hand side of her waist. She rubbed it thinking it was either a price ta~ or a safety pin or some other object sticking into h er. After a while the pain got worse and she felt nauseous. She lifted her shirt and saw th at she had a tick in the centre of a swelling. She immediately compl ain ed to a su pervisor who allowed her to finish work immediately. While she was waiting outside the store to be picked up by her husband she squeezed the tick and pull ed it from her body. She retained it until she was trea ted at QE II Hospital where the insect was identified as a tick. Prior to 3rd January 1987 she had en joyed excellent health. In the days following the bite she felt ill and had a large lump in the area of the bite. She returned 10 work after three or four days, but found that as soon as she bent over sh e felt unwell. Thereupon she tende red her re sig nati on. It is sufficient to say fo r the moment that in the weeks that fol lowed she suffered headaches and a stiff neck wh ich seemed to be getting progressively worse. Possible causes were investi gated but with negative re sults. She suffer ed from extreme ti redness and further examinations in var io us fiel ds failed to produce any results. In Sep tember/August 1989 she saw a television programme in which a condition with similarities 10 her own condition was described. The woman involved had been bitten by a tick and had been diag nosed as suffer ing from lyme disease. Extensive testing for the disease was c ar ri ed out but with n e~al ive resu l ts. Further medic al inv est igation of h er condi tion continued. In January, 1992 she suffered from skin lesions. The doctors who were called to give evidence differed as 10 whether she was suffering from lyme disease or something else. In the end the Industrial M agistrate summaris ed the posi tion as he saw it in t he following terms:- " Bas ically, it was a case of the medical profession trying to match a va riety of unclear symptoms of the patient to textbooks reports on li me disease and I don't say that in a derogatory sense . They ce rta inly were do ing their utmost and their best.". He went on to find that the respondent's condition was •unlikely to be the text book described lime disease. However, the doctors call ed on behalf of the respondent Board were not in a position to dispute that she was suffering and suffers from a debilitating condition which debars her from being fit for work.". A critical find i ng is in the following terms :- . a lot of emphasis has bee n pla ced on 'what is th e name' of the disease or condition which cause d her to ta l inability to work. However I have no hes itation in finding that the disease is and was an inj ury wi thin the meaning of the Act ... and that it was not necessary for the applicant to place a spec ific name to the condition". He also found that she was left with a debilitating disease or condition which he was sati sfied on the balance of probab il ities was associated with the 11ck bite at her place of employment. He fou nd specifically that the tick had come from t he crate within the premises on the night in question. The Industrial Magistrate has found as a fact that the ti ck attached itse lf to the respondent a1 herJlace of work. The proper approach, where a finding of fact base on credi bi lity is sought to be overturned has been the subj ect of numerous authorit ies. In R. v. Free (1983) 2 Qd.R. 183, 190 McPherson J. sa id the following:- • ... although the power of the appellate court to 'rehear' and revi ew extends to fi ndings involving credibility as it does to other findin gs in the court below, the power to interfere with a finding based on credibility will be exercised with great caution and with due regard for what has been called the 'overwhelming' adva ntage enjoyed by the tria l judge, but not the appellate court, of hea ring and observing the wi tnesses themselves: see Watt (or Thomas) v. Watt (1947) A.C. 484, 4 87-488, 492.". In Devries v. Australian National Railways Commission (1993) 11 2 ALR 6 41 , Brennan, Gaudron and McHugh JJ sa i d:- "More t han once in recen1 years, this court h as pointed out that a finding of fact by a trial judge, based on the credibility of a wi tness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly ag ai nst - that finding of fact. If the tr ia l judg e's fi nding depends to any substanti al degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has iailed to use or has palpably misused his [or her] advantage' or has acted on evidence which was 'incons is tent w i th facts incontrovertibly es tablished by the evidence' or which was 'gl ar ingly improbable'.". The appellant relies principally on the evidence of Dr Prociv, an Associ ate Profe ssor speciali sing in medical paras itology, on the question whether the tick bite occurred at work. It was submitted that had due weight been given to his evidence the Industrial Magistrate should not have found that t he tick bite occurred in that way. Dr Prociv gave evidence that typically ticks were found in outdoor areas where there was vegetation. He thought that the scen ario painted by Mrs Cus kelly was an unlikely one but conceded that a tick co ul d survi ve for a long time in a cold room in a dormant state but become motile again if pl aced in an environment where the temperature was normal. H e accepted that if so meone picked a crate up and carried 11 against 1he front of them that person would be "the prime candid ate to be the tick' s host". He gave evidence that it was not in acc ordan ce with his experience that a pe rson felt a ti ck bite when th e tick attached. The typical reaction was a feeling of irritation at some later time. He also said, as did at least one other medical practitioner, that nausea was not a common side effect of tick bite. The issue whether the ti ck attached i tse lf to Mrs Cuskelly at work is one that depended upon the Industrial Magistrate's consideration of the whole of the evidence. The Magistrate considered the evidence to which I have referred, on the one hand from Mrs Cuskelly and on the oth er hand from Dr Prociv, and decided that he accepted that the tick had attach ed i tsel f to Mrs Cuskelly at work. It is true that Dr Prociv thought that the scenario was unlikely but he was not prepared to exclude the possibility of 11 happening. On the state of the evidence the Industrial Magistrate's finding is purely one of fact, an d, applying the principles re ferred to above, ca nn ot be disturbed. The sec ond ground of appeal is that the Industrial Magistrate o ug ht n ot to have found that the alleged injury was a personal injury resulting from a tick bite and arising out of or in the course of the respo ndent's employment. There was evidence from the respo ndent that she h ad suffered a variety of symptoms at inte rva ls dating from the time of the bite. The ex isten ce of these symptoms was not put in issue in cross-examination of her by the Board. Some medical evidence was supportive of the view that, taken together, the sym ptoms were characteristic of lyme disease. Other medical evidence cas t doubt upon that diagnosis and the Magistrate preferred that view. Th e re was some su pport in the evidence for the view that at least the recurrence of the rash was characteristic of an allergic reaction, which persisted, to the ti ck bite. Th e question is whether, on the fac ts, it was open to the Industr ial Mag is tra te to fi nd that t he collection of symptoms which he fou nd 10 exist were a consequence of t he tick bi te even though no specific diagnosis of the way in which they opera ted on her had been made. In the end I think no weighty principle of law is invo lved. It is esse nti al ly a q ue stion, whether, on all of the evi dence, a sufficient circumstanti al case that a tick bite had c au sed the symptoms which cau sed the respondent's inability to worlc , was made out. Once it was accepted that the respondent suffered a ti ck bite, it was open to the Indu str i al Magistrate to find on the evidence that the responden t' s condition was a co nsequ ence of that bite. It is true that once facts have been found and are no longer in contest, an appellate court is, in general, in as good a position as the tri al judge to decide on the proper inference to be drawn from the facts that have been found after giving due weight to the conclusion of th e tri al j udge. (Warren v. Coombes (1979) 142 C LR 531 ). Assuming that this principle appl ies in the circumstances of the case ( wh ich is not beyond argument because I ' 6 Au gust, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE questio_ns of acceptance or reject ion of evidence may be involved 1n this !ssue as_ well), I do not find myself in disagreement wi th the ln?u.s tna l Magistra te s f1n d1 ng on the sufficiency of th e case on this issue. The appeal is dismi ssed with cos ts . Dated thi s twenty-si xth day of Ju l y, 1993. K.G .W . MACKENZIE, President. Appearances:- Mr A.M. Presto n for W orkers' Compensation Board of Queensland. M r J. Murdoch for H. Cuskelly. Operat i ve Date: NIA Judgment - Work ers ' Compensation Boa rd of Queensland and Heather Cuskelly. Released : 26 July 1993 ################## ######## ########################## 591 -- 2 of 2 --