Northern Iron and Brass Foundry Pty Ltd v Workers' Compensation Regulator
[2016] ICQ 19
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- Northern Iron and Brass Foundry Pty Ltd v Workers' Compensation Regulator[2016] ICQ 19
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Northern Iron and Brass Foundry Pty Ltd v Workers' Compensation Regulator[2016] ICQ 19
Northern Iron and Brass Foundry Pty Ltd v Workers' Compensation Regulator[2016] ICQ 19
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Northern Iron and Brass Foundry Pty Ltd v Workers’ Compensation Regulator [2016] ICQ 019 |
PARTIES: | NORTHERN IRON AND BRASS FOUNDRY PTY LTD (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2016/8 |
PROCEEDING: | Appeal |
DELIVERED ON: | 7 September 2016 |
HEARING DATE: | 15 August 2016 |
MEMBER: | Martin J, President |
ORDER/S: | Appeal dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where an employee at the appellant’s foundry successfully claimed workers’ compensation in respect of a neck/spinal injury sustained at work when the employee was preparing moulds to be used for casting metal parts – where the appellant’s case was that the injury was a result of boxing training – where the appellant relied on notes from a treating doctor referring to the employee’s boxing training in the context of his injury, but not to his work – where the appellant relied on evidence from another worker ostensibly inconsistent with the evidence of the injured employee as to the work activities said to have caused his injury – where the appellant relied on the employee having answered ‘No’ to one its staff members when asked whether the injury was work-related – where the Commission dismissed the appellant’s appeal – whether the Commissioner erred in accepting the employee’s version of events and rejecting ‘admissions against interest’ said to have been made by him to his doctor – whether the Commissioner drew an incorrect inference in preferring evidence of the injured employee to that of the other worker about the work activities said to have caused the injury – whether the Commission erred by failing to adequately deal with the evidence about the employee having said the injury was not work-related |
CASES: | Browne v Dunn (1893) 6 ER 67, cited Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, cited Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478, cited |
APPEARANCES: | A McLean Williams instructed by Human A.S.S.E.T. Solutions Pty Ltd Incorporated Legal Practice for the appellant D Callaghan directly instructed by the Regulator for the respondent |
- [1]Northern Iron and Brass Foundry Pty Ltd (the appellant) employed Scott Brown at its foundry in Innisfail. Mr Brown claimed that he had been injured at work and successfully sought compensation. The appellant failed in its appeal to the Commission against the Regulator’s decision[1] and now appeals from that decision.
- [2]The appellant contends that Mr Brown’s condition is unrelated to his employment and that the Commissioner erred in three respects:
- (a)He wrongly accepted the evidence of Mr Brown about the events on the relevant day in the light of admissions made against interest by Mr Brown concerning the cause of the injury.
- (b)He drew an incorrect inference from the evidence of Mr Ghietti or misconstrued or misunderstood that evidence.
- (c)He “failed to adequately deal with an admission against interest” made by Mr Brown to Ms Rees on 10 February 2014 that the injury was not work-related.
- (a)
8 February 2014
- [3]On the day in question, Mr Brown was working on one of the moulding lines at the foundry. The work involved creating moulds and the boxes which were used weighed between 200 and 250 kilograms when full.
- [4]He had considerable experience in the task and another worker (Mr Ghietti) asked him to help. Mr Brown said he was attempting to move one of the boxes when he felt pain “very close to the neck”. He continued to work for a little while but the pain got worse. He told Mr Ghietti that he could not continue and then spoke to the foundry foreman (Mr Chioatto) telling him that there was something wrong with his neck and he went home.
- [5]On the following day he woke with a seized neck and back and sought assistance at the Innisfail Hospital. After some preliminary treatment he saw Dr Frazer, a general practitioner attached to the hospital. Dr Frazer’s evidence of that consultation plays an important part in the appellant’s case.
Grounds of appeal
- [6]The appellant reframed the grounds set out in the application to appeal and both parties proceeded on that basis. I will do likewise.
Ground 1
“The learned Industrial Commissioner has fallen into error by wrongly accepting the evidence of the worker concerning the events of 8 February 2014, in circumstances where there were clear admissions against interest by the worker regarding the cause of his injury.”
- [7]The “clear admissions against interest” were said to be what Mr Brown had told Dr Frazer.
- [8]Dr Frazer examined Mr Brown at about 10.50 am on 9 February. Unsurprisingly he had no independent recollection of Mr Brown and had to rely on his notes made at the time. In those notes, Dr Frazer recorded the following:
“Boxing training++ increased pain left shoulder exacerbated by neck movement. Nil other injuries. Fit and well. NKDA - nil meds.”
- [9]Dr Frazer said that the notation “boxing training++” was his own shorthand for boxing training “to excess”. The appellant makes the point that there is no note made by Dr Frazer about the injury having arisen at work. Dr Frazer said that he would have made such a note had he been told that.
- [10]
“… referring back to my notes, really, there was obviously a major component of discussion around that for me to have documented that [ie boxing] as the cause of his injury. So, for me to have documented that in that way it must have been a fairly prompt response to my questioning him about what’s happened with his shoulder and what’s caused it.”
- [11]Mr Brown was cross-examined upon the notes made by Dr Frazer – notes which he had not seen before his cross-examination – but the assertion by Dr Frazer about the “fairly prompt response” was not put to Mr Brown. In cross-examination, he said that he had spoken to Dr Frazer about when he would be able to return to a training routine. That routine related to boxing.
- [12]In its written submissions, the appellant says that the Industrial Commissioner gave “far too little weight to the admission against interest made by Mr Brown to Dr Frazer that his injury was sustained during strenuous boxing training.”
- [13]This submission cannot be accepted for a number of reasons.
- [14]First, Dr Frazer’s evidence was a reconstruction of what had occurred. He had no independent recollection of the conversation he had with Mr Brown and he has only proffered his view of what he thinks must have been said.
- [15]Secondly, as has been observed, this version of events was not put to Mr Brown. The rule in Browne v Dunn[3] is often referred to or called in aid in matters like this one and it is useful to consider its general application. In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation[4] Hunt J considered the rule and its use in civil and criminal proceedings. He observed:
“A challenge made to the evidence of a witness in the course of a final address may take place in various ways. The opposing party may ask the tribunal of fact simply to disbelieve that evidence; if he has led evidence in direct contradiction of the evidence of that witness, he may then ask the tribunal of fact to accept the evidence of his own witnesses in preference to that of the witness in question; or he may point to other evidence in the case, led by either party, which tends either to contradict the evidence of that witness or to destroy his credit. There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based... In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his witness or to the credit of that witness, and in those circumstances counsel will be able to give his witness the opportunity to deal with that other material in his own evidence in chief. But sometimes quite properly he may not be aware either of the other material or of its relevance; or for quite legitimate tactical reasons he may prefer his opponent to be the first to raise the matter, and then deal with it in re-examination or (if allowed) in his case in reply. But at some stage during the course of the evidence, the witness must be given a proper opportunity to deal with the material to be relied upon for the challenge.”[5]
- [16]The consequence of not observing the rule was considered in Rees v Bailey Aluminium Products Pty Ltd:[6]
“The rule arises from an obligation of fairness to both the witness and the party calling the witness. The cross-examiner must confront the witness whose evidence is to be contradicted by other evidence or to be otherwise challenged. The obligation will also arise where the cross-examiner intends to adduce evidence as to the conduct of the witness which may be a matter of controversy. The rule rests upon notions of fairness and is designed to give the witness and the party calling that witness an opportunity to meet that challenge. The rule facilitates the tribunal’s assessment of the reliability and accuracy of the witness. Consequently if matters in controversy are not “put” to the witness in cross-examination the tribunal’s capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded.” (emphasis added, citations omitted)
- [17]It must be noted that, in examination in chief, Mr Brown said (with respect to Dr Frazer’s examination) that he had “never said that I’d hurt myself at training. I directly said that I hurt myself at work.”[7] But he was not cross-examined on the version of events proposed by Dr Frazer.
- [18]Thirdly, the reconstruction by Dr Frazer does not sit well with the fact that he was, when he examined Mr Brown, in possession of the triage report from Patricia Shinn (a Registered Nurse at the hospital). She recorded in her notes:
“working at foundry yesterday some lifting felt muscle spa[s]m left shoulder blade and left side of neck, today painful to move neck.”
- [19]It was open, in these circumstances, to proceed on the basis that there had not been an admission against interest of the type imagined by Dr Frazer.
Ground 2
“The learned Industrial Commissioner has drawn an incorrect inference from the evidence of Mr Ghietti, or has misconstrued or misunderstood that evidence.”
- [20]This ground was advanced to demonstrate that the Commissioner misunderstood the evidence given about where Mr Brown was standing and what he was doing at the time he said he was injured. Mr Ghietti gave evidence about what he was doing at the relevant time and it was, in some respects, inconsistent with Mr Brown’s account. The Commissioner’s findings about what had happened was broadly consistent with Mr Brown’s account. Mr Brown said that he had been standing next to the “drag”, pulling a box along the rollers with his left hand while holding part of the structure with his right hand. He moved the box about 1 – 1.5 metres. That evidence supported the finding at [280] that:
“Mr Brown first experienced the symptoms of what was later diagnosed as a disc prolapse at C6-C7 when pulling a moulding box along the drag rollers …”
- [21]Under this ground, the appellant also advanced an argument that the Commissioner erred in finding (at [280]) that the activity “involved turning or twisting his neck”. It was contended that that conclusion “was drawn without the Industrial Commissioner having received any actual evidence to the effect that pulling a moulding box involves turning or rotational twisting of the operator’s neck.”
- [22]There was evidence from Mr Brown that, when he commenced pulling the box he was facing left. It was open to the Commissioner to infer that, at some time during this movement, he turned his head and, thus, his neck. Such a finding is entirely consistent with the expert evidence about the possible causes of Mr Brown’s injury. The Commissioner did not find that there was some violent or exaggerated movement. He merely found that there was a “turning or twisting” of the neck. This was an inference open to be drawn on the evidence. It was also consistent with the opinions of the medical experts about the stress which might be placed on the cervical spine when pulling a moulding box.
Ground 3
“The learned Industrial Commissioner has failed to adequately deal with an admission against interest made by the worker to Ms Nicole Rees on 10 February 2014 that the injury was not work-related.”
- [23]Ms Rees is an employee of the appellant and received a telephone call from Mr Brown on 10 February 2014. He told her that he would not be coming to work that week due to his injury. The Commissioner recorded the exchange in this way:
“[54] Soon after 7.00 am on Monday 10 February 2014, Nicole Rees, production planner at the foundry, took a telephone call from Mr Brown who indicated that he was not coming to work that day. In accordance with company practice developed by Mr Vecchio, Ms Rees called up four standard questions on her computer. She asked these questions and entered Mr Brown’s answers straight away as follows:
‘1. Reason for being absent? Torn muscle in back
- If Sick - will a certificate be provided on return? Yes
- Is the illness work related? No
- When do they expect to return to work? Monday 17th of Feb.’ (Exhibit 2)”
- [24]The Commissioner considered this conversation in the following way:
“[293] Second, there is an issue about the contents of Mr Brown’s phone call to Ms Rees on 10 February 2014. The answer ‘No’ recorded in response to the question ‘Is the illness work related?’ is not in dispute. Mr Brown asserts that he told Ms Rees ‘It is work-related. However, you can put it down as No and I’ll speak to Joe [i.e., Mr Vecchio] when I return to work.’ Ms Rees gave evidence that Mr Brown did not mention that but gave a simple ‘No’ answer. Mr Brown’s explanation for this otherwise curious answer to the question includes:
- (a)knowing that the Appellant would want to avoid a time lost injury claim;
- (b)being in significant pain and wanting to avoid an experience similar to that following his lower back injury in 2013 when others from the foundry would come to his home in a work vehicle and take him to the foundry to be scanned in; and
- (c)being concerned about his employment.
At that stage, the only diagnosis Mr Brown had was a sprained muscle. Mr Brown stated that Dr Frazer told him that the injury was minor. The treatment was for a soft tissue injury. At 28 years of age and in otherwise good health, it was reasonable to expect on the basis of his consultation with Dr Frazer that Mr Brown would be fit for work in about one week's time.
[294] In the circumstances peculiar to Mr Brown, including his experience after his injury in 2013 (which was largely corroborated by the evidence of Mr Fichera, Mr Chioatto and Mr Vecchio), I accept Mr Brown’s explanation for why he answered ‘No’ to the question. I have difficulty, however, in deciding whether to prefer his evidence or that of Ms Rees in relation to the contentious part of the telephone call. For the purpose of deciding this appeal, it is not necessary to make a finding in relation to that. I note, however, that, whatever his intention on 10 February 2014 (and whether or not he gave that full response to Ms Rees), Mr Brown did not speak to Mr Vecchio about the matter on his return to work. Had he done so, it is possible that the proceedings that led to this appeal would not have been necessary.”
- [25]The appellant contends that failing to decide that issue, that is, whether or not Mr Brown gave the “full response” to Ms Rees, was an error because the trial was substantially one about the credibility of Mr Brown. That submission, though, ignores the finding by the Commissioner that he had accepted Mr Brown’s explanation for answering “No”. Once again, it was open to the Commissioner to do this. The important point was whether or not by answering “No” Mr Brown was making an admission against interest. That was decided in Mr Brown’s favour and is not the subject of a ground of appeal. It was not an error to omit to decide this “issue” because the Commissioner had decided the important aspect of the matter in favour of Mr Brown.
Conclusion
- [26]The appellant has not demonstrated that the Commissioner erred. The appeal is dismissed.