Cameron v Atlas Heavy Engineering Pty Ltd

[2024] QDC 49

DISTRICT COURT OF QUEENSLAND

CITATION:

Cameron v Atlas Heavy Engineering Pty Ltd [2024] QDC 49

PARTIES:

WAYNE JEFFREY CAMERON

(plaintiff)
v
ATLAS HEAVY ENGINEERING PTY LTD
(defendant)

FILE NO:

BD2052 of 2020

DIVISION:

District Court of Queensland

PROCEEDING:

Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 March 2024

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

16 October 2023, 17 October 2023, 18 October 2023, 8 November 2023

JUDGE:

Burnett AM, DCJ

ORDER:

I direct the parties submit a form of order giving effect to these findings on or before 19 April 2024, including if agreed orders for costs. In default of agreement list the matter for further mention on 24 April 2024 at 10:00am.

CATCHWORDS:

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – Where the appellant was employed as a machine operator– Where the appellant was diagnosed with a pre-existing condition of epilepsy - Where the appellant fell and sustained various minor injuries - Whether the pre-existing condition was a significant contributing factor – Where multiple possibilities for the causation of the injury – Whether on the balance of probabilities the appellant experienced an epileptic seizure before or after the incident occurred - Where plaintiff would have fallen from multiple locations - Whether the harm resulting from the breach of duty considered an injury as defined in the Workers' Compensation and Rehabilitation Act 2003 (Qld)

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 305D; 306

CASES:

Luxton v Vines (1952) 85 CLR 352 at 358

Jones v Dunkel (1959) 101 CLR 298 at 305

Fox v Wood (1981) 148 CLR 438 at 441

COUNSEL:

Wilson, M for the Appellant

Charrington KC, B for the Respondent

SOLICITORS:

Everingham Lawyers for the Applicant
Mullins Lawyers for the Respondent

Introduction

1. 10 July 2018 commenced like any other workday for the plaintiff who had been employed by the defendant for the preceding 13 years in the capacity of machine operator.  His work was largely unskilled and at the time of the subject event involved him supervising a large piece of equipment which cut heavy metal blanks from large sheets of steel positioned on a bed by use of a computer activated oxyacetylene torch.  The nature of the bed and the machine are amply illustrated in photographs, Exhibits 1, 2, 3 and 4.  In broad terms the bed was approximately 20 m long and 4 m wide.  It sat approximately 770 mm above floor level and on each of its longitudinal axis had a rail.  A gantry sat upon and stretched between the rails.  On one side of the gantry was a workstation/computer terminal.  Along the length of the gantry an oxy acetylene cutter would run along the length of the gantry in accordance with the program loaded up into the computer for the cutting of steel positioned on the bed beneath it.  The bed itself comprised vertical slats each made of steel and approximately 7 to 10 mm in width.  The slats ran between each side of the gantry and were secured into a beam underneath the bed.  Each slat was separated from the adjoining slat by approximately 200 to 300 mm.  The evidence of the witness, Michael Cameron, a fellow employee and the plaintiff’s brother was that the slats had some flex in them such that when they were not bearing any load they would wobble as a person walked upon the bed.  Care had to be taken to walk across the bed when there was no load upon it in order ensure that a solid and firm footing was maintained.  Once the weight of a metal sheet was positioned upon the bed the slats became firmer.

2. The cutting machine was operated by the operator from the control panel which was affixed adjacent to the cutting gantry.  The panel was positioned adjacent to the gantry for access by the operator when standing on the workshop floor and moved along the rail with the gantry. From the control panel the cutting operation could be stopped by hitting an emergency button or by two other stop buttons on the panel.  The control buttons were readily accessible to the operator standing adjacent to the machine but would only be accessible at a stretch from the machine bed if, as I infer, the operator was standing upon the bed and lent over the cutting head to access it.[1] The centre red button on the panel identified by a Mr Wapau, another employee, in Exhibits 11 and 12 enabled the cutter to be stopped midway through a cut.  This was commonly necessary, as depending upon the nature of the steel material being cut and the form of cuts being undertaken, the evidence was that the torch cutter itself would become fouled and accordingly it was necessary to stop the operation of the machine while any such issue was attended to.  That involved extinguishing the torch so the cutter could be accessed and any slag fouling the cut, removed.

   [1]T1-124 l 45 – T1-125 l 8

3. The system in place commonly involved the supervising worker stepping up onto the bed and proceeding to the cutting torch in order to make an assessment of how best to deal with the obstruction.  Sometimes the obstruction could be addressed without the need to extinguish the torch and on other occasions cutting torch head had to be extinguished in order to permit access for removal of the cutter head itself.  Plainly that task could not be undertaken while the oxyacetylene cutting torch was alight.  The evidence was that such an interruption may occur up to 80 times a day depending upon the nature of the material being cut and the pattern of blanks being produced.  Mr Wapau contended that when such an event occurred the issue had to be attended to from the bed because it was difficult to realign the cutting head over the steel plate after the cutting head had been repositioned, for instance by moving the head closer to the side of the bed in order to permit an employee access to it.  It was suggested this could be done by instructing the machine to default to a position at one end of the cutting table for that purpose.  Mr Michael Cameron, who had been employed at the factory throughout the time during which that machine was installed and later an instructor on the machine said he was not aware of any such function.

   The incident

4. At about sometime between 11.00 am and approximately 12.54pm, the plaintiff was employed in his capacity supervising that machine.  At a time no earlier than about 30 minutes before events unfolded, he was seen upon the table in the course of operating the machine by Mr Wapau.  In his evidence Mr Wapau stated that he later saw the plaintiff on the ground.  When asked how much time had lapsed between the occasion, he had last seen him and his observations of the plaintiff being on the ground he stated he could not recall but guesstimated up to 30 minutes.[2] He stated that as he looked at him the plaintiff appeared to be upon the floor looking for parts or something on the ground before he then was sitting down[3].  He was about halfway down the length of the cutting table[4]. Mr Wapau said that once he saw him in that state, he immediately attended upon him.  He said that as he approached the plaintiff, he noted that he had dirt on his back, and he had a blank look over his face.   He says he picked him up and called out to the other staff at the press.  The plaintiff was then taken from there to the end of the bed and then subsequently placed on a chair near the press.  The press can be seen in Exhibit 2.  It is located on the other side of an open doorway evident in that photograph.  He stated in cross-examination that he observed the plaintiff was on the floor behind the control panel leaning forward in and it appeared he was trying to get up and was crouched over the bar being a reference to the gantry rail and looking into the bed of the cutter. Because of dirt on his shirt Wapau inferred he’d been lying on the floor. From that evidence and his marking on Ex 11, I infer that he had initially fallen onto the floor somewhere along the midpoint of the cutter bed.

   [2]T1-109 l 17

   [3]T1-106 l 16-20

   [4]T1-115 l 15

5. Mr McIlwain was another employee on site at the time.  He saw the commotion surrounding the plaintiff and people around him.  He made the observation that the plaintiff was by this time at the front of the machine before being seated and near the press.  He did not see anything earlier but upon approaching the group observed that the cutter was still active, so he turned it off.  He said that the cutter itself was about a quarter of the way along the bed and about ¼ of the way into the cutting table and from his observation of the steel being red, he inferred that the oxyacetylene cutter had been operating and sitting in the one position over that point for some time.[5] He was unable to recall whether this was midway along or at the end of the cutter’s run.[6]

   [5]T1-122, l 6.

   [6]T1-122 l 14

6. The third person on the scene was the plaintiff’s brother, Michael Cameron.  He says he first saw the plaintiff with Mr Wapau holding the plaintiff up.  He said the plaintiff was on the ground meaning that he was not on the cutting table.  He observed that the plaintiff was about halfway down the length of the machine on the near side of the control panel[7].  He observed that the plaintiff was facing him and appeared dazed.  He says the plaintiff was then moved to a chair at the press.

   [7]By near side I understood the witness to mean the plaintiff was on the operator’s side of the control panel.

7. Things unfolded quickly from there.  Mr Northrop, the supervisor had been summonsed by this time.  A call was made to QAS at 12.54 and an ambulance arrived at 13.07.

8. The plaintiff has no memory of these events.  The basis for his absence of memory underly the controversy in this proceeding.  Further, there were no eyewitnesses to these events.  The plaintiff seeks to advance its case circumstantially on the basis that the defendant failed in its duty of care to provide him with a safe place of work by not having installed as part of the gantry a suitably enclosed platform which would have permitted him to safely attend to issues with the cutter and the related machinery without risk of him falling from the cutting table onto the floor, a distance of about 770 mm.  At its heart, the plaintiff’s case is premised upon the inference that the plaintiff was standing upon the cutting table at the time that he fell and that he fell from there to the floor.

9. The following issues are alive:

   (a)The cause of the fall.  Was his fall occasioned by an event such as a trip on the grated cutting table or because of a seizure, most probably an epileptic seizure?

   (b)The location of the plaintiff at the time of his fall.  Was he upon the cutting table or was he adjacent to the control panel?

   (c)If the plaintiff was on the cutting table, irrespective of the cause of the fall, did the defendant breach its duty of care to provide him with a safe place of work or breach of statutory duty by failing to have in place a reasonable system of work which would have prevented a fall in any event.

   Causation

10. A critical issue in the proceeding concerns whether or not the plaintiff suffered an epileptic seizure prior to him being found on the factory floor.

11. It is unchallenged that the plaintiff had no recollection of the events of the day preceding the incident.  After the incident he was initially observed by fellow workers as being positioned like he was looking for parts on the ground.[8]  He was said by Palmer to be on the floor behind the control panel which might suggest the was in on the control panel’s far side, that is the non-operating side.[9]

    [8]Palmer, T1-106, l 18.

    [9]Palmer, T1-110, l 15.

12. Mr McIllwaith was less clear in his observations.  His attention was aroused as he saw “lots of people around him,” being the plaintiff.  He observed that he was on the floor between the press and the machine.[10] That would place him on the operator’s side of the panel.

    [10]McIlwain, T1-119, l 34; l 38.

13. The plaintiff’s brother, Wayne Cameron, who was also employed by the defendant at that time was not working near the plaintiff at the time of the incident.  He was in an adjoining shed.[11]  He first saw the plaintiff standing up with Palmer holding him.  That was after the incident.[12]

    [11]Cameron, T3-49, l 2.

    [12]T3-49, l 12.

14. He said the plaintiff was just standing there, “he just didn’t know where he was, like, he was dazed.”[13]  Mr Cameron observed the plaintiff to be unsteady on his feet, “he was a bit wobbly, and he was – just wanted to walk down to the back and go and feed the chooks is what he said.”[14]

    [13]Cameron, T3-49, l 41.

    [14]T3-50 l 10

15. The plaintiff was placed on a chair and an ambulance was called.  That call was made by the Safety QA Manager, Gavin Northrop.  Mr Northrop did not witness the incident but was summonsed after it had occurred.  He made a call to QAS informing that the Triple zero operator,

    “We found him unconscious in – on the ground … oh yeah.  He’s gone down hard.  They found him unconscious.

    …

    You’re right mate[15].  I think he’s hit his head pretty hard.

    …

    Yeah.  He’s gone down hard.

    …

    He could have been on his machine.

    …

    Yeah.  It would be a decent fall if he did, but not sure.

    …

    Smashed his head on the concrete I reckon, I reckon.  Hey.”

    These statements are all based on information that had been provided to him by other employees on the shop floor.

    [15]This comment was during the course of the 000 call and was most probably a question directed by the speaker, Mr Northrop to the plaintiff.

16. In an incident investigation form prepared by Mr Northrop that day (Exhibit 37) in the box entitled “Injury Root Cause” he remarked, seizure[16] and later details of injury, “unknown – (suspected seizure)”.

    [16]Exhibit 37, p 2.

17. In his evidence, Mr Northrop observed the source of the seizure had been information received from the plaintiff’s brother, Wayne.[17]

    [17]T3-82, l 7.

18. Likewise, Mr Northrop’s evidence that the plaintiff had not had a seizure for quite a long time and that he had stopped his medication was also sourced from the plaintiff’s brother, Wayne Cameron.

19. When asked if there was anything wrong with the plaintiff, Wayne Cameron stated that he told QAS the plaintiff had had an epileptic fit 20 years earlier.[18]

    [18]T3-60, l 43.

20. In the QAS record the narrative recorded the cause as “? syncope/4”.  It noted (due to R) side of face, nil haematoma, abrasion … Pm HX “part medical history – epilepsy 10 years ago, removed from meds many years ago.  Denies further HX (history)”.

21. The plaintiff was transported to the Redcliffe Hospital and admitted.  He remained there overnight while tests were undertaken before discharged to Outpatients.  His discharge summary noted the principal prognosis as “unwitnessed loss of consciousness, concerning for seizure activity”.  Medication was prescribed and he was directed not to drive for six months.

22. He was discharged into the care of his GP, Dr R Kennedy who referred him to Dr Gamni Jayasinghe, Neurologist.  Dr Jayasinghe saw the plaintiff on/or about 28 September 2018.  Following his examination, he observed there were no neurological abnormalities observed and both a CT scan and EEG were normal.  He concluded his “impression (was) that this was an epileptic fit”.[19]  He prescribed Keppra and advised the plaintiff not to drive.  He also referred him for further review.

    [19]Exhibit 33(a).

23. A radiological examination undertaken on 18 October 2018 revealed a normal for age MRI brain and no other evidence identified.  In the review following those scans Dr Jayasinghe reduced his dosage of Keppra and advised the plaintiff to seek other employment because of the danger his condition presented.  In a subsequent review in January 2019, Dr Jayasinghe advised the plaintiff he could return to driving but that he was to continue on Keppra.

24. Those opinions were reaffirmed by Dr Jayasinghe in a letter addressed by him to the plaintiff’s solicitors with his ultimate statement:

    “In the absence of an eyewitness account, it is difficult to be dogmatic but the overall impression of the type of blackout and injuries he received which resulted in a fracture of the thoracic spine are likely suggestive of an epileptic seizure.”[20]

    [20]Exhibit 33(e).

25. Dr Jayasinghe was called to give evidence at trial.  He affirmed the matters expressed in his report stating that he felt that the plaintiff most probably had an epileptic fit at work.  He stated he could not be “dogmatic” about his diagnosis because there were no eyewitnesses.[21]

    [21]T3-33, l 15.

26. I infer that was because, for instance, there was no mention of the plaintiff being seen to be shaking, frothing at the mouth, tongue biting or suffering urinary incontinence.  These were symptoms that would have been of interest to him but were not seen.[22]

    [22]T3-35, l 43.

27. In cross-examination, it was suggested that his presentation, i.e., that he was not slumped but, on the floor, was more consistent with a fall.  However, he observed a fall can be associated with a seizure so the presentation on being found did not assist either way.

28. Likewise, he stated that other tests such as the MRI and EEG were of themselves not exclusionary of epilepsy. 

29. The plaintiff was examined by three medical experts for the purpose of litigation namely Dr Noel Staines, Dr Bruce McPhee and Dr D Todman. 

30. Broadly Dr Staines and Dr McPhee agree with Dr Jayasinghe’s opinion that the plaintiff had suffered an epileptic episode.  Dr Todman did not.

31. Dr Staines related the plaintiff’s relevant medical history and his workplace presentation at the time of the incident.  Of particular note, he observed the plaintiff had suffered a compression fracture of the thoracic spine and fracture of the right head of the humerus.  He observed that these types of fractures occur in the context of convulsive seizures.[23]  Those fractures were noted by Dr Jayasinghe as being recently approximate to x-rays taken upon his admission to hospital. 

    [23]Exhibit 29.

32. Dr Staines ultimately concluded “on balance” that the plaintiff had suffered an epileptic seizure which caused his injury.[24]

    [24]Exhibit 29.

33. In cross-examination, he agreed these types of injuries could have been sustained from a 770-millimetre fall but added,

    “These fractures that were documented are very characteristic of the fractures we see after epileptic seizures.

    I thought they were less likely to be due to a fall either from a platform of 770 mm or from the ground itself.”[25]

    [25]T3-8, ll  21-23.

34. He did not accept as a deciding factor the proposition that “the incident was more likely explained by a fall and not epileptic seizure given 16 years had passed since the last episode and fall between seven to nine of those latter years he had not been taking medication.”[26]  He opined that it was not extraordinary for a person with an epileptic disposition to have only a handful of episodes over a lifetime. 

    [26]T3-8, ll 30-33.

35. Ultimately, his opinion was premised upon an accumulation of information, being a past history of epilepsy, a sudden event at work, no significant head injury, he was considerably confused afterwards, he suffered fractures which were characteristic of the type seen after epileptic seizures and he was seen by a treating neurologist who placed him on epilepsy medication for the rest of his life shortly after the presentation.  From that he concluded it was more likely than not that the plaintiff had experienced an epileptic seizure.[27]

    [27]T3-12, ll 30-45.

36. The last medical practitioner called who supported the view that the plaintiff had experienced epileptic episode was Dr McPhee.  Dr McPhee was called to address orthopaedic issues allegedly related to the incident.  However, given the presentation of multiple orthopaedic injuries he expressed an opinion in respect of all especially of the injury at the T4-T5 and T7 level.  He noted that from radiological evidence there had been previous mild compression fractures which were possibly related to previous seizures and underlying osteo form.  He observed from radiological material that there was evidence of a recent compression of the T6 vertical body not evident in earlier studies.  This he opined could have been the result of a fall or equally a seizure.  But he opined epileptic seizures in the past caused “probable pre-existing compression fractures of T4, T5 and T7.”[28]

    [28]Exhibit 30.

1. He noted evidence of a possible mid sacrum fracture was more likely due to a fall but observed it could have occurred with muscle spasm during a seizure.  Evidence of a possible compression fracture in the lower part of the right humeral head however would be unusual for trauma or seizure. 

2. In cross-examination, he did not accept Dr Todman’s opinion that the T6 fracture could have been a misdiagnosed fracture from the 2002 episode.  In his report Dr Todman had noted that the T6 fracture was observed at Redcliffe Hospital along with other injuries.  In particular, the CT revealed a definite fracture at T6 but also an interior wedging from T3 to T7 with moderate degenerative changes including a small disc protrusion at L4/5 which he opined might be injury related.  He noted that he had seen the plaintiff in 2007 following his episode in 2002 but made no observations about spinal injuries at that time.

3. He opined in his report, Exhibit 19, that, “A seizure on its own would not be expected to result in the magnitude of symptoms including the T6 vertebral fracture and possible disc protrusion at L4/5.”

4. In cross-examination, Dr McPhee was firm about his opinion because, as he observed, by reference to x-rays done in September 2017 there was no evidence of a fracture of T6.  However, the post incident evidence shows a change in quality of bone and “a hyper density which you see when a bone is compression fractured.”[29]

   [29]T3-19, l 3.

5. He also noted the bone was hot concluding that internal bone scan plus changes of shape “equals a fracture”.[30]

   [30]T3-19, l 5.

6. Dr Todman had seen the plaintiff in 2007 following his initial episode in 2002. In 2009 he reviewed the plaintiff. At that time, he reported the plaintiff stated he had not suffered a seizure in the preceding 2 years. Since then, he had ceased drinking and also had been successfully treated for hepatitis C. His most recent EEG was noted as normal. At that time Dr. Todman opined it would be appropriate for the plaintiff to taper his Dilantan. He thought his then chance of recurrent seizures to be low.[31]   He noted that his EEG was normal and that he continued with Dilantan noting he came off that treatment after 10 years without any further recurrence.  At the time of the plaintiff’s post-incident assessment Dr Todman observed the plaintiff continued to experience pain throughout his spine but particularly at the thoracic level.  Additionally, there was a cervical and lumbar spine pain.  He observed the plaintiff did not complain of back pain prior to the incident.

   [31]Ex 22 Report Dr Todman dated 20 May 2009

7. Dr Todman, particularly noted evidence of fractures at T6 and some anterior wedging from T3 to T7 as well as some moderate degenerative changes with a small disc protrusion at L4/5 which might be injury related.  He observed there had been no evidence of further seizures since his early history and that he had been off treatment for almost 10 years.  He regarded the resumption of treatment as a precautionary measure.  He concluded observing:

   “It is not possible to say with certainty whether a seizure occurred at the time of this incident or not and my opinion would be that there is insufficient evidence to diagnose an epileptic seizure as the cause of this work accident.  This is on the balance of probabilities as a seizure is likely but in my opinion, it is less likely than a fall in the work setting.

   The evidence against an epileptic seizure on this occasion was his long period of being seizure free off all medication and that there was no tongue biting or incontinence and there was no witness to observe it.  His tests for epilepsy were subsequently clear.  Evidence which may point to a possible seizure would include his past history of seizures and the fact that there was some confusion afterwards.  The confusion however may have related to a head injury in a fall.”[32]

   [32]Exhibit 16 at p 4-p 5.

8. In a later statement he confirmed the equivocal status of the complainant’s complained confusion, noting it would be equally consistent with a fall as much as a seizure.[33]

   [33]Ex 17

9. In a subsequent report Dr Todman’s language subtly changed.  There he observed:

   “His injuries are more consistent with a fall from a height than from suffering a seizure while standing on ground level.  A seizure on its own would not be expected to result in the magnitude of symptoms including the T6 vertebral fracture and possible disc protrusions at L4/5.”[34]

   [34]Exhibit 19, p 2.

10. The most significant new information informing of this change was his reference to the plaintiff having sustained a head injury.  However, the evidence of head injury was scant.  In the QAS notes he was observed on presentation to have “dirt to

    
    

    R) side of face”.  No remarks were made of head injury.  Evidence of abnormal head features suggestive of injury came from the plaintiff’s brother, Wayne Cameron, who noted a red mark on his face.

11. Palmer Wapau, who was first to attend upon the plaintiff following the incident did not remember seeing any marks on his facial skin.  He did note dirt on his back and clothes.  He later said he saw dirt on his shirt from which he inferred the plaintiff had been lying on the ground. 

12. Brian McIlwain came upon the plaintiff after the others were already there.  He made no observation of marks on the plaintiff’s face or head.

13. The plaintiff’s brother, Wayne, observed the plaintiff had a red mark on his head.  He particularised this noting it was “right of (his) forehead,”[35] as well as directly on his right-hand side.  He stated that the plaintiff had no mark on his face prior to that.  In cross-examination he stated he did not know if it was still there when the ambulance arrived and accepted it could have been gone by that time. A similar observation was made by Northrop who remarked he had dirt on his forehead, and it appeared he had sustained an impact on his head.[36]

    [35]T3-59 l 26.

    [36]T3-74 l 9

14. The QAS records refer only to dirt on the right-hand side of the face and “nil haematoma, abrasion”.  No remark was made of any head or face injury in the hospital admission notes and a CT was performed upon admission which showed no acute pathology[37].

    [37]T2-81, l 21.

15. The various medical practitioners expressed differing views as to the likelihood of some external presentation supportive of injury.  Dr Todman noted in his report, Exhibit 19, that there was evidence of head injury noting that the plaintiff “had a fall from the table with multiple injuries to the spine and head”.  His opinion was based upon information provided to him from other sources.  He disagreed with Dr McPhee’s opinion that an injury of sufficient force to occasion a loss of consciousness would result in some external signs.  Dr Todman opined that the absence of external signs of lacerations, contusions or bruising in the head did not of itself exclude the possibility of head injury.[38]  Further, he stated in evidence there wouldn’t necessarily be signs from such an incident.[39]

    [38]See Exhibit 20.

    [39]T2-32, l 40-45.

16. The debate between the competing medical opinions resolves into one of opinion.  Each doctor was qualified to express a view and the cross-examination of each did not disclose, in my view, any basis for rejecting the views expressed by either expert.  Like much in this case there are equally competing opinions.  In any event, the presence (or otherwise absence) of bruising is only one factor lending support to the plaintiff’s claim that he fell and that his being found on the ground was not associated with a seizure.

17. Although Dr Todman considered on balance that the plaintiff did not experience an epileptic episode he couldn’t rule it out noting that the chance was less than 50 percent.[40]  A little later on in cross-examination Dr Jayasinghe’s opinion was put to him and particularly his opinion that “… the loss of consciousness could be explained as a symptom of epileptic episode” to which Dr Todman responded, “I wouldn’t disagree with that either”.

    [40]T2-28, l 38.

18. Ultimately, Dr Todman did not impress me as being firm in his opinion.  He plainly accepted an epileptic episode was a real possibility not something that was simply speculative or fanciful.  In my opinion, his views tended to vacillate.  Ultimately, I prefer the evidence of Dr Jayasinghe.  He saw the complainant closer to the event and his opinion is reinforced by the evidence concerning the orthopaedic injuries which were consistent with him having suffered an epileptic event.  As Dr McPhee explained, the T6 fracture most probably had its origin in the original epileptic event in 2002.  He was otherwise susceptible to further orthopaedic injury by reason of the osteoporosis from which he was suffering. Except for the mid-sacrum injury his  other orthopaedic injures were consistent with the affect of an epileptic seizure. The mid-sacrum injury can be accounted for by either the fall he sustained when he fell following his seizure or have been a result of muscle spasm during a seizure.

19. Ultimately, I am satisfied on balance that the evidence supports the finding that the plaintiff suffered an epileptic event manifest by seizure at the time of the incident. The evidence supporting the finding that the plaintiff suffered an epileptic episode is as follows:

    ·The information provided to first responders based upon the impressions of the plaintiff by his co-workers that he had had “a seizure”.

    ·He had suffered an epileptic episode 20 years earlier and had been on medication for it for a lengthy period.

    ·He had ceased epileptic medication some years earlier.

    ·On admission to hospital the principal prognosis was “unintended loss of consciousness, concerning for seizure activity”.

    ·Subsequent neurological examination concluded his “impression of epileptic fit” for which appropriate medication was prescribed.

    ·The presence of injury to the plaintiff’s thoracic spine was suggestive of an epileptic seizure being the type of fracture that would occur in the context of a compulsive seizure.

    ·Evidence of longstanding pre-existing compression fractures of T4, T5 and T7.

    From where did the plaintiff fall?  Is one scenario more likely than another?

20. In this case two scenarios appear to be open given I am satisfied the plaintiff suffered an epileptic event shortly prior to his being found.  The first is that the plaintiff was on the cutting table but suffered an epileptic seizure which caused him to fall from the table onto the floor and the second is that the plaintiff was somewhere in the vicinity of the console when he suffered an epileptic seizure which caused him to fall upon the floor. Ultimately the plaintiff must prove on the balance of probabilities the scenario which is relied upon to prove its claim.  That means the scenario it contends for is one that is more likely than not when considered against the other scenarios which are open on the evidence. 

    The plaintiff fell from the cutting table

21. At its essence the plaintiff alleges in the statement of claim that there was a foreseeable risk of him falling freely from the cutting table whilst undertaking the process of inspecting the cutter.  This was a risk that the defendant knew of and failed to address.  It alleges simple and inexpensive measures were available to address the risk but the defendant in breach of its duty of care owed to the plaintiff failed to address the risks.

22. The evidence of Messrs Martin and Boyd, the consultant mechanical engineers, whose report Exhibit 23 evidences that the system of work constituted a risk of injury by fall and there was a reasonable measure available at a reasonable cost to remediate such risk.[41]  Other measures which could have been inexpensively deployed included a reduced risk exposure through improving a task and a machine design and also improved procedural control for machine access.

    [41]Exhibit 23 p 28.

23. Absent my finding concerning the epileptic event intervention the evidence supporting the plaintiff’s claim he fell from the cutting table is in particular:

    ·The system of work contemplated the plaintiff would, when required, vacate his workstation adjacent to the control panel and step up on to the cutting table to examine and/or remove cutter blockages and slag from time to time – up to 80 times a day;

    ·The defendant through its supervisors was aware that this system of work existed and a reasonable person in their position would have appreciated the risk to safety presented by the system.

    ·Approximately 30 minutes prior to being seen upon the shop floor by another employee, the plaintiff was seen engaged in operating the cutter by standing at the control panel;

    ·Approximately 30 minutes after having been seen at the control panel the plaintiff was seen to be slumped beside the machine in the vicinity of the control panel;

    ·The injuries sustained by the plaintiff, in particular his orthopaedic injuries, could be explained by a fall from the cutting table as suggested by the plaintiff’s counsel.

24. In my view, absent the intervention of any seizure, the evidence could support the inference that the plaintiff could have fallen from the cutting table if he had proceeded up onto the table because the cutter had become fouled requiring examination of the cutter and removal of any slag.  From such a position on the table the plaintiff could have suffered a fall and sustained an injury.

25. The defendant denies the plaintiff fell from the cutting table.  However, had the plaintiff been upon the cutting table it is reasonably possible that in those circumstances he may have fallen from that location above where he was subsequently found and that such a fall was caused by an epileptic seizure.  Had he done so it is open to infer that he had such an episode at or near the location of the cutter.  If he fell because of an epileptic episode, it is open to infer that he sustained an injury of the kind of complained of. 

26. Given the opinion of Messrs Martin and Boyd, if his fall occurred in those circumstances the defendant failed to fulfil its duty to manage the risk of a fall.  In this context, the mechanism for the fall is irrelevant.  Irrespective of the mechanism of fall and the presence of a barrier of the kind described by Messrs Martin and Boyd would have prevented the plaintiff from falling from the cutting table.  There is no reason to believe that such a measure would not have been effective and furthermore or that the implementation of such a measure would have been unreasonably costly. 

    The plaintiff’s fell on the shop floor

27. The second scenario is that that plaintiff experienced an epileptic episode whilst standing on the shop floor somewhere in the vicinity of where he was later found by his fellow employee. There is no basis to find any breach of duty of care or breach of statutory duty by the defendant if the plaintiff’s fall occurred in those circumstances.

    Equally competing scenarios

28. In my view, each of these two scenarios are open on the evidence. For reasons outlined earlier I am satisfied on the balance of probabilities that the plaintiff experienced an epileptic seizure or event immediately before falling and he sustained injury from such a fall. That leaves open two possible scenarios on the evidence as causative of injury. The critical and distinguishing factor between them is the plaintiff’s position at the time he experienced that episode.

29. The plaintiff’s case proceeded upon the basis that the plaintiff fell from the cutting table.  I accept this scenario was one open on the evidence.  However, this is a circumstantial case as no one saw the event and the plaintiff has no memory of the event.  But it is equally open on the evidence to find he was standing on the shop floor at the time of the epileptic episode.  Ultimately, I am of the opinion that each is equally plausible on the evidence and each of these scenarios are equally open.  In a case, such as this, where there are equally probable inferences available to explain the plaintiff’s accident, it is well settled that situation:

    “… does not authorise a Court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or others.  The facts proved must form a reasonable basis for a definitive conclusion affirmatively drawn of the truth of which the tribunal of fact may be reasonably satisfied.”[42]

    [42]See Jones v Dunkel (1959) 101 CLR 298 at 305.

30. That said, in Luxton v Vines[43] Dixon, Fullagar and Kitto JJ observed that:

    “… where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.”

    [43](1952) 85 CLR 352 at 358.

31. Later their Honours proceeded to note,

    “Many conjectures may be put forward which would explain these matters, but the fact that some of them imply negligence … is not enough. Some of them clearly do not and there is no reason for rejecting the latter in favour of the former. There is no higher degree of probability on the one side than the other.”

32. In my view, given that there are two equally competing explanations for the subject incident, the plaintiff has failed to establish negligence; a breach of statutory duty provided for by s 305D of the Workers’ Compensation and Rehabilitation Act; or that the defendant breached any duty thereby causing injury to the plaintiff.  It follows the plaintiff’s action fails and must be dismissed.

    Quantum

33. The plaintiff claims for the following injuries he alleges occurred in the incident:

    (a)A right hip injury;

    (b)A right shoulder injury;

    (c)Head injury;

    (d)Thoracic spine injury;

    (e)Lumbar spine injury;

    (f)Neck injury;

    (g)Rib injury;

    (h)Psychiatric injury.

34. Aside from complaints concerning the right hip and rib and sequelae following the head injury, the medical evidence does not support any substantive basis for those claims.  As discussed above, the head injury does not appear to have been significant and the sequelae which was principally described as a headache has since resolved.

35. Dr McPhee opined that the symptoms experienced by the plaintiff in his right shoulder relate to the seizure and not any falls. 

36. In respect of the plaintiff’s claim for injury to the cervical spine, no neck related issues were reported to either QAS or the Redcliffe Hospital.  In fact, the plaintiff denied any cervical spine tenderness when examined by QAS. 

37. In respect of the spinal injury Dr McPhee opined that there was no evidence of injury to the plaintiff’s lumbar spine, but radiological studies showed age related degenerative changes without disc protrusion or nerve root compression.  Given my finding concerning seizure he observes that seizure may have caused an exacerbation of the plaintiff’s lumbar spondylosis.[44]  Dr McPhee assessed the whole of person impairment relating to the lumbar spine at 0 percent.  Dr Todman assessed it at 6 percent whole of person impairment.  I note the plaintiff has not been treated for disc protrusion by referral to an orthopaedic surgeon which of itself suggests the injury falls for consideration in terms of the example provided by ISV 89 namely a soft tissue or whiplash injury if symptoms are minor and the injured person is expected to recover to a level where the injury is merely a nuisance within 18 months after the injury is caused.  The ISV range is at 0 to 4 and given the plaintiff complains of some ongoing headaches and associated pain I assess it at the higher level of 4.

    [44]Exhibit 30 p 6.

38. In respect of the thoracic injury namely compression of the T6 fracture both Dr McPhee and Dr Todman assess the whole of person impairment in the range of 7 to 8 percent whole of person impairment.  However, Dr McPhee opined this injury could have been occasioned by either the fall or by his epileptic episode. I have concluded the plaintiff sustained an epileptic episode. I afford the plaintiff a beneficial approach and find this injury was a consequence of the fall. ISV injury item 93 suggests a range in the order of 5 to 10 percent but given the general agreement there is whole of person impairment in the order of 7 to 8 percent I consider an ISV of 10 is appropriate.

1. Finally, it is agreed that the plaintiff suffers an adjustment disorder.  Dr Lotz assessed, the psychiatric impairment rating scale of 7 percent and Dr Chalk assessed it at 4 percent.  The defence submitted Dr Chalk’s assessment was later in time and closer to trial and so should be preferred. Three months separates the two reports. In my view, nothing turns on one being earlier than the other. Both agree the plaintiff developed symptoms flowing the incident. No doubt this symptomology affected the plaintiff more given his circumstances. I accept an appropriate ISV of 7 upon consideration of ISV item 12.

2. In this case the thoracic injury is the dominant injury and can be uplifted to reflect the significance of the other injuries.  Allowing for uplift, I assess the final ISV at 14. 

3. The damages must be assessed pursuant to s 306 of the Workers Compensation and Rehabilitation Act in accordance with the injury scale values provided in the schedules to the regulations.  Each injury must be categorised within an item contained in schedule 9 and an ISV assessment must be undertaken.  Whereas here there is more than one injury the injury with the highest ISV range becomes the dominant injury and it may be uplifted to reflect the significance of the other injuries.  The uplift will be within the ISV range for the dominant injury and can exceed the upper end of that range by 25 percent and if appropriate by up to 50 percent if the court provides reasons. 

4. Given my earlier remarks I summarise my findings as follows:

   (a)Thoracic spine - item 91 ISV range 5 to 15 (moderate thoracic lumbar spine injury) with an assessment of 10 being appropriate if there is a fracture of a vertebral body with up to 25 per cent compression and ongoing pain;

   (b)Lumbar spine – item 31 (minor lumbar spine injury).  It has an ISV range of 0 to 4 and I assess ISV at 2;

   (c)Psychological injury – item 12 (moderate mental disorder).  This has an ISV range of 2 to 10 but given the PIRS assessment of 4 percent by Dr Chalk it renders an appropriate ISV assessment at 2;

   (d)Right shoulder – item 97 (minor shoulder injury).  This has an ISV range of 0 to 5.  The proper assessment is 0 based on Dr McPhee’s assessment of zero impairment. 

5. Given the dominant injury for assessment of the thoracic injury and accepting an appropriate uplift of 25 percent the ISV is 12.5.  Table 8 of the regulations provides that for injuries between 1 July 2018 and 30 June 2019 of schedule 12 of the regulations results in an assessment of general damages of $21,175. 

6. There is no entitlement to interest on general damages. 

   Past economic loss

7. The plaintiff has an excellent work history.  It is unfortunate for him that his seizure intervened.  Plainly, at some time this matter would have become apparent and his employment with the defendant in his capacity as a machine operator would have come to an end because of the risks associated with this pre-existing condition. As it happened the epilepsy revealed itself again on the day of the incident.

8. In 2009, the defendant forwarded a notice to all employees reminding them of their obligations under the Workplace Health and Safety Act. In particular, all employees, including the plaintiff, were reminded of their obligations to divulge details of medical conditions and previous injuries know to them. This notice was issued the same year he saw Dr Todman and only a number of years following his first epileptic seizure. The notice included relevant health questions. A question in the notice asked if he knew of “… any medical conditions that could impair a worker’s health when performing metal fabrication?”. In answer to that question, he ticked a box recording his answer as “no”. Plainly, his prior epileptic seizure was relevant to his employment as a machine operator in the defendant’s workshop because of the dangers a seizure would present to himself and potentially others. That fact was not only relevant to his employment with defendant but would also be relevant to a broader range of employment duties for which he might otherwise be suitable.

9. As was submitted for the defendant, the fact of his diagnosis of epilepsy by Dr Jayasinghe meant that the plaintiff would not have been able to continue working for the defendant.  That is irrespective of whether he was injured in a workplace accident or otherwise.  The issue is what other work the plaintiff could have undertaken apart from working with machinery. 

10. Except for his extensive employment operating machinery for the defendant and some employment as a labourer in the agricultural sector the plaintiff has no other substantial employment history.  He impressed me as an individual who by reason of his personal circumstances was and remains highly motivated to return to work.  That said his diminished employment capacity is occasioned by his epileptic condition and the effect it has on his employment operating machinery. 

11. Since the incident the has made efforts to return to the workforce. However, superimposed upon his epileptic condition are the effects of his degenerative back condition, most of which is attributable to his epilepsy. In evidence, he spoke of the limitations in movement and the symptoms he experienced, particularly with his back. He has sought employment in areas where he might ordinarily expect to be capable of employment given his limitations. They included employment as a green keeper, forklift driving for which I expect he would not be suitable and as a gardener. He had no success in applying for those roles. At the time of trial, he was undertaking a warehouse management course. However, he had not returned to employment.

12. I’m satisfied he has made genuine efforts to obtain employment but has not succeeded because of a combination of his epilepsy and the temporary exacerbation of his pre-existing condition occasioned by the fall. Plainly allowance needs to be made for that factor and on that finding the consequential impact on his physical ability particularly because of the aggravation of the pre-existing back injury. 

13. He was 59 years of age at the time of the incident. However, given his epileptic condition had manifest his return to employment following the incident would have rendered him less competitive in the labour market irrespective of other matters. Obviously, the concerns about an epileptic episode would limit employment opportunities.  But his employability would be further diminished by reason of the physical sequelae which could then be attributable to the negligence of the defendant.  As Ms Vincent noted in her report at paragraph 6.1.12, he would not be fit for repetitive manual handling, long periods of standing and walking, climbing on and off tables and/or repetitive or frequent bending or stooping.[45]  Additionally, she opined that by reason of his past training, experience, and qualifications he was not suited for any sedentary roles.  In her view it was likely that he would remain unemployed.

    [45]Exhibit 24.

14. I have not been assisted with any material that assists in assessing loss from the date of the incident to trial on the basis of an alternative form of employment.  Plainly he could not have returned to work with the defendant or in any similar form of employment following the seizure. The effect of the seizure was to render him unfit for employment with machinery. In my view that would also include forklift driving and similar occupations. He would be fit only for manual work. However, given his age and lengthy absence from the workforce in part while recovering from those physical ailments he suffered by way of aggravation of his preexisting injuries his competitive employability would have been further diminished rendering him largely unemployable.

15. Given those factors I accept his past loss of income should include an allowance for the first 18 months of total loss of income because of injury related to the incident with the loss progressively being attributable to other factors. Doing the best I can on the material before me I assess past economic loss at $130,000.

Future Economic Loss

1. The plaintiff is now aged 62. As I have found, I’m satisfied he was highly motivated to maintain employment and I expect he would have remained in employment until retirement age of 67. On that basis his future earning capacity has been impacted over approximately 5 years. As earlier noted, Ms Vincent says he will not be able to return to physical work. While she considered he might have capacity to undertake sedentary employment he lacks training and experience in such occupations. Given his condition she considers that without at least partial amelioration of his symptoms it is likely he will remain unemployed.

2. While I accept that the plaintiff suffered some injury the injury sustained over and beyond the epileptic event and associated sequalae have now passed. Despite his best efforts to date he has not succeeded in obtaining employment. Although I conclude the effects of the escalation of his pre-existing condition have now past the exacerbation initially rendered unfit for employment. While he might now be fit for employment, by reason of his age and absence from the workforce he is no longer an attractive employee. I conclude he is now totally unemployable. The impact of the injury above and beyond his underlying condition has contributed to that situation and allowance must be made for future loss on that basis. In the circumstances allowing for that matter and contingencies I allow $150,000 for future economic loss.

   Past and Future loss of superannuation benefits

3. Past superannuation on $130,000 at 9.5% quantifies as $1,235.

4. Future superannuation on $150,000 at 11.5% quantifies at less a discount at 15% for contingencies totalling $17,250.

   Fox v wood

5. It is agreed between the parties that the Fox v Wood component is $16,265. I allow that sum.

   Past special damages

6. The plaintiff claims past special damages as follows:

   (a)Medicare refund - $5,757.60

   (b)Pharmaceutical expense - $600.03

   (c)Travel Expenses - $351.37

   (d)Medical expense paid by Workcover Qld - $1,425.38

   Future special damages

7. The plaintiff claims for future special damages for allied health care including psychotherapy, physiotherapy, exercise physiology, hydrotherapy, gym membership, and occupational therapy. For reasons detailed above I have concluded that the exacerbation of the plaintiff’s pre-existing conditions occasioned by the incident have now largely passed. On that basis any symptoms now experienced are predominately related to age and his underling epileptic condition. I make limited allowance for future special damages as particularised in the defendant’s submissions including;

   (a)future analgesic medication -$6,000

   (b)psychotherapy - $3750

   Interest

8. The plaintiff is entitled to interest on sums awarded for past economic loss and past special damages on such amounts as are to be calculated and agreed or in default to be assessed.

   Summary

9. In summary I dismiss the plaintiff’s claim. I assess damages as follows:

   (a)General damages - $21,175

   (b)Past economic loss - $130,000

   (c)Past loss of superannuation benefits - $1,235

   (d)Future economic loss - $150,000

   (e)Future loss of superannuation benefits - $17,250

   (f)Fox v Wood - $16,265

   (g)Past special damages - $8134.28

   (h)Future special damages - $9750

10. Those sums total $371,056.28. Interest is to be calculated.

    Order

11. I direct the parties submit a form of order giving effect to these findings on or before 19 April 2024, including if agreed orders for costs. In default of agreement list the matter for further mention on 24 April 2024 at 10:00am.