Charmaine Collett and Australian Postal Corporation - [2013] AATA 56

[2013] AATA 56

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/0372

2011/5124

Re

Charmaine Collett

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal
Senior Member K Bean

Date 1 February 2013

Place Adelaide

1. In application 2011/0372:
(a) the reconsideration decision of 24 January 2011 is set aside and in substitution for that decision it is decided that:
(i) the respondent is liable to pay compensation to the applicant pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for the condition of "L5/S1 disc rupture resulting in an incomplete cauda equina syndrome" sustained on 27 August 2010; and
(ii) the matter is remitted to the respondent for determination of the applicant's entitlements under other provisions of the SRC Act.
(b) the Tribunal:
(i) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(ii) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant pursuant to s 67(8) of the SRC Act.
2. In application 2011/5124:
(a) the Tribunal grants liberty to the parties to provide written submissions within 14 days as to why the reconsideration decision of 29 November 2011 should not be set aside and the matter remitted to the respondent to be reconsidered in accordance with these Reasons, and/or why the costs of the proceedings should not be paid by the respondent; and
(b) orders that in the absence of any such submissions:
(i) the reviewable decision of 29 November 2011 is set aside and the matter is remitted to the respondent pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 to be reconsidered in accordance with these Reasons; and
(ii) the respondent is to pay the costs of the proceedings incurred by the applicant pursuant to s 67(8) of the SRC Act.

........................................................................
Senior Member K Bean
CATCHWORDS
COMPENSATION - Lumbar disc rupture and cauda equina syndrome - Whether injury occurred in course of employment - Whether applicant's account of circumstances of injury should be accepted - Balance of the evidence establishes injury occurred in course of applicant's employment - Respondent liable to pay compensation - Effects of earlier aggravation of back injury subsumed by disc rupture - Question of liability to pay medical expenses and incapacity payments associated with that aggravation proposed to be remitted to respondent - Decisions under review set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 16, 19
CASES
Health Insurance Commission v Van Reesch (1996) 45 ALD 302
REASONS FOR DECISION
Senior Member K Bean
1 February 2013
INTRODUCTION

The applicant, Ms Collett, has been employed by the respondent, Australia Post, as a postal delivery officer or “postie” since 2003. Whilst she had some history of prior back problems, she says these had resolved before she started working for Australia Post.
However in May 2004 she suffered an episode of back pain while carrying out her duties. This settled, but was followed by a further episode of back pain suffered in the course of her duties in June 2008. Ms Collett had a further episode of more severe back pain in May 2009, which occurred when she was at home. She suffered further back pain on 8 June 2010 while carrying out her duties, and again after falling off her motorbike in the course of her employment on 25 June 2010. Compensation liability was accepted by the respondent for the consequences of the incidents on 11 June 2008 and 8 June 2010, and she received treatment for her back pain at the expense of the respondent.
However in August 2010 Ms Collett unfortunately suffered a much more severe episode of back pain resulting from what is now known to have been a rupture of her L5/S1 disc. This not only caused her very severe pain but also resulted in other serious symptoms.
Shortly after the disc rupture was identified, Ms Collett underwent surgery which, in conjunction with rehabilitation, has significantly improved her symptoms and she has been able to return to work. However, for reasons which will be canvassed in detail below, the respondent denied compensation liability for Ms Collett’s disc rupture. That denial was maintained on reconsideration of the original determination and Ms Collett subsequently sought review by this Tribunal of that reconsideration decision. In the context of these proceedings, the respondent has maintained that it is not liable to pay compensation to Ms Collett for the disc rupture or its effects.
It follows that in broad terms, the main issue for my determination is whether the respondent is liable to pay compensation for the disc rupture suffered by Ms Collett in late August 2010.
However before proceeding to address that issue more directly, it is appropriate that I set out the relevant legislative provisions and the salient aspects of the procedural history. Once I have done so, I will also identify the legal issues with greater precision.
THE STATUTORY FRAMEWORK
The workers compensation regime which applies to Ms Collett is that provided for in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
What is often described as “threshold liability” under that Act is governed by s 14, which provides as follows:
“Compensation for injuries
(1)       Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)       Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)       Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
Relevantly to the application of that provision, s 5A of the SRC Act also defines the term “injury” as follows:
“Definition of injury
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
…”
Section 5B also defines the term “disease” as follows:
“Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.”
Sections 16 and 19 of the SRC Act provide for the payment of medical expenses and incapacity payments respectively, with an employee’s entitlement in each case depending upon them suffering an “injury” within the meaning of the Act. Section 16 relevantly provides as follows:
“Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…”
Section 19 also provides that compensation is payable to an employee in respect of an “injury” within the meaning of the Act for each week during which the employee is incapacitated as a result of the injury, according to a formula set out in the section.
PROCEDURAL HISTORY AND JURISDICTION
As I have alluded to above, in July 2010, Ms Collett lodged a claim for compensation in respect of “sore lower back” claiming that she had hurt her back in the course of her employment on 8 June 2010.[1] In an incident report relating to this injury, she stated “ongoing deliveries to Fulham over a period of time has made my back sore.”[2] On 6 August 2010, the respondent accepted liability for that injury, which it described as an “aggravation of mechanical lower back pain”, under s 14 of the SRC Act.[3]
[1] T5/20, 2011/0372.
[2] T4, 2011/0372.
[3] T14/42, 2011/0372.
On or about 25 June 2010, Ms Collett also submitted an Incident Report in respect of the subsequent event referred to above, when she fell from her motorbike on 25 June 2010, jarring her lower back. It appears she did not lodge a claim for compensation in respect of that event, although “the effects of that aggravation” were “managed under” her existing claim, being that relating to the aggravation of 8 June 2010.[4]
[4] T43/107, 2011/0372.
On 20 September 2010, Ms Collett lodged a further compensation claim in respect of the disc rupture, which she claimed occurred on 27 August 2010.[5] On the same day a Claims Manager for the respondent wrote to Ms Collett advising her that:
“On the evidence available I have decided to associate your claim for lower back injury; disc and nerve injury that occurred on 27 August 2010, with your existing claim number 10/500055 accepted for aggravation of mechanical low back pain.”[6]
The letter went on to advise Ms Collett that the Claims Manager had “… insufficient evidence to consider liability for any costs related to the aggravation sustained on 27 August 2010.” This implied that in principle, “threshold” compensation liability had also been accepted for the disc rupture.
[5] T17/52, 2011/0372.
[6] T32/78, 2011/0372.
However following further investigations, the Claims Manager for the respondent wrote to Ms Collett on 11 November 2010, advising that “liability for compensation for incapacity and medical expenses for any effects related to the aggravation of your condition on 27 August 2010 is denied under Sections 16 and 19 of the Act.”[7] This letter appeared to suggest that liability for the “aggravation” allegedly sustained on 27 August 2010 was accepted, but liability for medical expenses or incapacity under ss 16 and 19 of the SRC Act was denied.
[7] T43/108, 2011/0372.
On 10 January 2011, the Claims Manager again wrote to Ms Collett, this time advising that liability under ss 16 and 19 of the SRC Act in respect of her injury sustained on 8 June 2010 was ceased on that day, on the basis that she did not “… presently suffer from any work-related effects of aggravation of mechanical low back pain.”[8]
[8] T50/125, 2011/0372.
Following a request for reconsideration, on 24 January 2011, a reconsideration delegate of the respondent also made a reconsideration decision[9] affirming the “cease effects” determination dated 11 November 2010 in relation to Ms Collett’s claimed injury of 27 August 2010. One of the bases for that decision was that the reconsideration delegate was “satisfied that liability does not exist pursuant to section 14(1) of the Safety, Rehabilitation and Compensation Act 1988”. It is accordingly clear that, although “section 14 liability” appears initially to have been accepted in respect of the claimed injury of 27 August 2010, it was subsequently denied on reconsideration.
[9] T53/130, 2011/0372.
On the first day of the hearing, I pointed out that there did not appear to be any reconsideration decision relating to the determination of 10 January 2011 ceasing liability pursuant to s 16 and 19 of the SRC Act in respect of the “aggravation of mechanical low back pain” sustained on 8 June 2010. The applicant subsequently sought reconsideration of that determination, and on 29 November 2011, a reconsideration officer affirmed that determination.[10]
[10] T76/114, 2011/5124.
It follows that the two reviewable decisions currently before me are:
(a)the decision of 24 January 2011 affirming the determination that there is no liability under ss 16 and 19 of the SRC Act for the injury allegedly sustained on 27 August 2010, on the basis that liability does not exist pursuant to s 14[11]; and
(b)the decision of 29 November 2011 affirming the determination of 10 January 2011 ceasing liability under ss 16 and 19 in respect of “aggravation of mechanical low back pain” sustained on 8 June 2010.[12]
[11] T23/130, 2011/0372.
[12] T76/114, 2011/5124.
In the context of the current matter, my jurisdiction is limited to reviewing those decisions.
THE ISSUES
Having regard to the statutory framework, it follows that in legal terms, the issues before me are as follows:
(a)Whether the disc rupture suffered by Ms Collett on or about 27 August 2010 constituted an “injury” within the meaning of the SRC Act such that the respondent is liable to pay compensation for that injury pursuant to s 14?; and
(b)Whether after 10 January 2011, Ms Collett continued to require medical treatment, or suffer incapacity as a result of her injury of 8 June 2010, such that the respondent remained liable to pay her compensation in respect of that injury pursuant to either s 16 or s 19 of the SRC Act?
I propose to deal first with the question of compensation liability for Ms Collett’s disc rupture.
IS THE RESPONDENT LIABLE FOR MS COLLETT’S DISC RUPTURE?
At the outset, I should make clear that there is no dispute between the parties that by the time she presented to her treating Occupational Physician, Dr Kar Ng, on Monday 30 August 2010, Ms Collett was suffering from a herniated disc or disc rupture at L5/S1 resulting in “… an incomplete cauda equina syndrome …”.[13] As I understand it, the term cauda equina syndrome describes the signs and symptoms resulting from a compression of nerves in the spine as a consequence of a disc rupture. Some of the signs and symptoms of this syndrome include leg pain and disturbance of bladder and bowel function. Ms Collett was exhibiting those signs and symptoms on 30 August 2010, and the existence of the disc rupture was confirmed on an MRI scan carried out on 30 August 2010 which apparently showed a “… massive disc extrusion at L5/S1 on the left side occupying nearly all of the spinal canal”.[14]
[13] Exhibit 17, p 2.
[14] T26/65, 2011/0372.
Ms Collett underwent surgery on 9 September 2010, performed by Mr David Hall, Spinal Surgeon. As reported by Mr Hall “the operation involved a left L5/S1 partial discectomy and S1 root canal decompression”.[15] Mr Hall also reported:
“At operation a massive disc extrusion was found and removed along with other degenerate disc material. The disc material had been very tightly compressing the cauda equina and was responsible for her disabling symptoms.”[16]
[15] T30/74, 2011/0372.
[16] T30/74, 2011/0372.
In light of this evidence, not only is there no dispute that Ms Collett had suffered a disc rupture by 30 August 2010, there is also no current dispute about the extent of treatment required or the degree of incapacity flowing from that injury. It was agreed between the parties that in the event of the Tribunal finding that compensation liability existed for this condition, the questions of liability under ss 16 and 19 should be remitted to the respondent.
The issues which are in dispute between the parties however, include the circumstances in which the disc rupture occurred, and whether those circumstances give rise to compensation liability. In particular, there is a dispute between the parties as to whether an incident occurred during the course of Ms Collett’s employment on 27 August 2010, which resulted in her suffering sudden and severe pain, and which, on her case, precipitated the disc rupture which proceeded to worsen and become more debilitating over the subsequent weekend.
Accordingly I will first set out Ms Collett’s account of the events of 27 August 2010 and the subsequent weekend. I will then proceed to outline and address the reasons why the respondent says her account should not be accepted.
Ms Collett’s Account
In her evidence, Ms Collett said that on Friday 27 August 2010 she was out on her motorbike, delivering mail as part of her duties. She said:
“… I pulled up to a letterbox, and it was of course on my left, and I had to lean down to put the letter in. The letterbox wasn’t too low, it was not out of the ordinary, but it was just low enough for me to have to bend down, and I felt a real sharp pain in my back and – and that sent my pain skyrocketing. …”[17]
[17] Transcript 29.11.11, p 61.
She went on to explain that the letterbox was approximately 60 to 70 cm off the ground, and that she had to turn to the left and tilt her body to reach the letterbox, whilst her right hand was holding on to the right handle of the bike and her right foot was still on the ground.[18]
[18] Transcript 29.11.11, p 63.
Ms Collett said the pain she felt on reaching to the letterbox was the worst back pain she had had, and that it remained at that severe level afterwards. Notwithstanding the pain, she said that she finished her round, which took her approximately an hour. She said she did this because she was accustomed to working with back pain, and did not realise at the time that she was risking further damage by carrying on with her work.[19]
[19] Transcript 29.11.11, p 65.
Ms Collett said that when she got back to the depot where she was based and as she walked in to the “main room” from the “bike shed”, she received a telephone call from her mother telling her her son was sick. She said that her son had had swine flu previously and she was worried that he may have swine flu again. She said that she received the impression from her mother that her son may have swine flu again and she became quite worried about him.[20] She said this meant she was in more of a hurry to get home than she would otherwise have been. Nevertheless, she said she had looked for somebody to whom she could report the incident which had occurred during her round. She said:
“… Well, I had to go find someone to report my back and I did a very quick look. I didn’t do a full look. I didn’t go in the lunch room, I didn’t go to the men’s change rooms, toilets. I didn’t go into the post office shop at the front or in the box areas. So in the main big depot, I did a quick look and I didn’t see anyone and my thoughts went on me. So, I thought, I can’t find someone, I have got to go; I want to go and be home with my son.”[21]
[20] Transcript 29.11.11, p 66.
[21] Transcript 29.11.11, p 67.
She said there was only one person there, being an administrative staff person, and as she knew him to be forgetful, she did not tell him about the incident as she did not “…have any trust or faith in him to actually pass it on anyway”.[22] She said she did not see anyone else. In particular, she did not see any of her supervisors or team leaders. She said this was just after midday and as she couldn’t find anybody to report the incident to, and was concerned about her son, she clocked off and went home.
[22] Transcript 29.11.11, p 67.

Ms Collett said that when she got home, she thought her son wasn’t looking well and she “wasn’t feeling good with my back”.[23] She therefore suggested that her son lay down with her on her bed, which he did, and she and her son then had a sleep together for two to three hours. She said that when she and her son woke up, she thought her son was looking better and she decided to go for a walk, as that was what she had been advised to do by the Occupational Physician she had been seeing for her back pain, Dr Ng. However she was only able to walk approximately 400 metres on this occasion. She said she tried to “stride out” or take slightly bigger steps, but “the stride out really sent a lot of pain, and it was just too sore, so I turned around and I walked back home”.[24] She said at this stage the pain was going down her buttocks, into her left leg. She also said she had not had pain in her buttocks or left leg before.[25] Ms Collett also explained that prior to having her sleep when she got home, she had taken anti-inflammatories and Panadeine Forte.
[23] Transcript 29.11.11, p 68.
[24] Transcript 29.11.11, p 69.
[25] Transcript 29.11.11, p 70.
Ms Collett said that at approximately 4pm, she received the first of two telephone calls inviting her to go to a local hotel for a drink with her workmates. Initially she was reluctant to go, but ultimately decided that she would. She said her mother encouraged her to go and she ultimately decided to go because “… I wanted to go have a drink and I wanted to be with the girls …”. Accordingly she drove to the hotel, which was about 5 kilometres from her house.[26] She said that in addition to some other workmates her team leader, Darren MacAdam, was also there. She said he invited her to sit on his stool and she said “no, I don’t want to sit … my back- my back is very sore.”[27] However she acknowledged that she did not tell Mr MacAdam that she had hurt her back at work that day. She said she stayed a couple of hours at the hotel chatting and having a drink, standing for 98 per cent of the time. When she got home, she said she took more tablets and went to bed.
[26] Transcript 29.11.11, p 71.
[27] Transcript 29.11.11, p 71.
Ms Collett gave evidence that she continued to be in severe pain over the subsequent weekend. She said she still did some activities, but she reduced and limited her activities because of the amount of pain she was in. She said she had planned to play golf with a friend on the Saturday, but cancelled this because of her back pain. She acknowledged that she umpired a junior game of hockey on the Sunday morning, although she explained that this had not been planned. She said she had agreed to do this in circumstances where one of the two umpires rostered to umpire the game had not turned up, and it would otherwise have been necessary to cancel the game. She further explained that she umpired a senior game she had been rostered to umpire later on the same day. However in the case of both games, she said she changed the way she umpired and moved much less than she would ordinarily have done because of the degree of back pain she was suffering.
In the course of her evidence Ms Collett also stated that she experienced some disturbance to the functioning of both her bladder and bowel over the weekend of 28 and 29 August 2010. She said the problem was more pronounced in relation to her bladder and that she was experiencing urinary urgency or a “lack of warning” when she needed to go to the toilet. She said she “didn’t think too much of it at the time” [28] and was surprised when she was asked later whether she had been experiencing such symptoms. She said the bladder symptoms commenced on Saturday 28 August 2010.[29] The bowel symptoms related more to lack of sensation when she went to the toilet, and came on more gradually. Ms Collett could not clearly recall when the bowel symptoms commenced, but thought this may have been on Sunday 29 August 2010.[30]
[28] Transcript 30.11.11, p 98.
[29] Transcript 30.11.11, p 108.
[30] Transcript 30.11.11, p 108.
Ms Collett said that when she woke up on the Monday morning she was in excruciating pain and realised she would not be able to go to work. She accordingly rang her workplace and arrangements were made for her to see Dr Ng at 9am, which she did. She said that by the time she saw Dr Ng, her movement was extremely restricted and she was only able to “shuffle” rather than walk. She said when she saw Dr Ng she insisted on him organising an MRI scan, which he did, and this revealed the disc rupture. In fact the findings on the MRI were so dramatic that the radiologist phoned Dr Ng, who phoned Ms Collett, and arrangements were made for her to see a spinal specialist, which she did shortly thereafter. As outlined above, this ultimately culminated in her having spinal surgery to attempt to address the consequences of the disc rupture.
The Respondent’s Contentions
The respondent contests Ms Collett’s version of events for a number of reasons. The respondent’s arguments as to why this version of events should not be accepted by the Tribunal include the following:
(a)Ms Collett had been warned previously about not reporting incidents involving her back at the time they occurred. Therefore, if she had in fact suffered an incident of the kind she now describes whilst carrying out her round on 27 August 2010, she would have reported it before going home. The respondent says that Ms Collett did not report an incident having occurred on 27 August 2010 before she went home because no incident occurred. The respondent also strongly disputes her explanation that she did not report the incident because there was nobody readily available for her to report the incident to before she went home. The respondent says that the evidence available suggests that a number of staff were present at the depot when Ms Collett left to go home, and she could have reported the incident to one of them. The respondent also says it is not plausible in light of the evidence that there was nobody within the precincts of the depot to whom Ms Collett could have reported the incident;
(b)The respondent also says that even if no one was present when she returned from her round to whom she could report the injury, it would have been a simple matter for Ms Collett to leave a note before she left work on the Friday, pick up the telephone to her workplace later in the day to report the incident, or even return to the workplace later for this purpose. The respondent says the fact she did not do so indicates the incident did not occur on that day;
(c)If an incident had occurred on 27 August 2010 as Ms Collett now claims, and if she did not have a chance to report it before she went home, the respondent says she would have mentioned it to Darren MacAdam when she saw him at the hotel. The respondent says it is entirely implausible that, having suffered an incident at work resulting in the most severe back pain she had ever suffered, Ms Collett would not have said something to Mr MacAdam about this having occurred. The respondent says the reason Ms Collett said nothing about such an event to Mr MacAdam was because no such event had in fact occurred;
(d)The respondent says the disc rupture is far more likely to have occurred over the weekend, possibly whist Ms Collett was umpiring a hockey match. The respondent disputes her account of having greatly limited her physical movements whilst umpiring the two hockey matches, and says she is likely to have been more physically active in the course of her umpiring duties than she now claims to have been;
(e)The respondent points to inconsistencies between the evidence of various witnesses, including Ms Collett, as to her precise activities over the weekend. The respondent suggests these inconsistencies arise because Ms Collett’s account is not truthful;
(f)The respondent contends that when Ms Collett spoke to her supervisor, Mr Senior, on the morning of 30 August 2010, she explained her failure to report the incident on Friday by reference to the fact that she was only experiencing a “slight ache” at the time, which she thought would settle over the weekend. The respondent says this report to Mr Senior is inconsistent with her having suffered the severe injury she now claims occurred on 27 August 2010;
(g)The respondent also relies on aspects of the medical evidence, in particular the opinion of Associate Professor Bauze to the effect that the disc rupture with which Ms Collett presented on the morning of 30 August 2010 is likely to have commenced within 24 hours previously. In other words, from a medical point of view, it was unlikely to have had its genesis in an event which occurred on Friday 27 August 2010;
(h)Ms Collett did not seek medical treatment either on the Friday evening or over the ensuing weekend, which again is inconsistent with her suffering the level of symptomology she now claims she was; and
(i)Whilst Ms Collett gave evidence of increasing symptoms relating to her bladder and bowel over the weekend of 28-29 August 2010, the respondent says the existence of such symptoms is not supported by the contemporaneous evidence, including her reports to doctors on 30 August 2010 and shortly thereafter.
I propose to address each of these arguments in turn, by reference to the evidence before me.
Consideration
Ms Collett’s failure to report the incident on 27 August 2010
I have set out above in summary form Ms Collett’s account of what occurred on 27 August 2010, and why she left her workplace before reporting the incident.
However the respondent relies upon the evidence of its employees, Mr Senior and Mr MacAdam, as well as electronic attendance records, to say that a number of employees were present when Ms Collett returned from her round to whom she could have reported the incident before she went home. In particular, the respondent says that Mr Warren, Mr MacAdam and Mr Kirkbright were likely to have been present at the depot when Ms Collett returned and she could have reported the incident to one of them.
In relation to the electronic attendance records, as I understand those documents, they confirm that Mr Warren, Mr MacAdam and Mr Kirkbright all attended work on 27 August 2010, and in each case had not clocked off before Ms Collett clocked off at 12:10pm on that day.[31] However Ms Collett’s evidence, which in this respect which was not disputed by Mr Senior or Mr MacAdam, was that each of them also had mail rounds, and the records do not reveal when they left to carry out those rounds, or when they returned. Indeed in his evidence, Mr Senior acknowledged that the documents did not actually reveal whether any of the relevant staff were present at the delivery centre or not at the time Ms Collett left to go home, that is at 12:10pm.[32]
[31] Exhibits 13, 14 & 15.
[32] Transcript 25.01.12, p 487.
Mr Senior, who is the Delivery Manager of the Port Adelaide Mail Centre where Ms Collett was based, also acknowledged that he was not himself at work on 27 August 2010. However he was later asked about who was present when Ms Collett returned from her rounds that day and the resulting record of interview, dated 21 November 2011, was tendered into evidence before me.[33] In the course of that interview, Mr Senior said it was his understanding that the team leaders Leonard Warren, Darren MacAdam and Graham Kirkbright were all present when Ms Collett came back from her round. He stated as follows:
“I want to know if it’s been reported, if it was, where you know and to whom. So they and part of my investigation said that the whole 3 of them were around their, their admin desk which is right next to the clock off so they would have, she’d have to lean past them basically to perform her, her going home swipe. They said they were all there and they actually spoke to her on that day so you know, that’s how I know, plus also through our computer records of our system called Work Brain it shows them start/finish times, what their rostered hours were, what time they actually work and it will also show a clock in that shows when they went out on their round and when they came, come back on their round. …”[34]
[33] Exhibit 12.
[34] Exhibit 12, p 8.
However Mr MacAdam’s evidence was inconsistent with Mr Senior’s understanding in this respect. In his evidence, Mr MacAdam said that the occasion when he, Mr Kirkbright and Mr Warren were sitting at a computer near the time clock when Ms Collett clocked off, took place on a different day, 25 June 2010.[35] He said he recalled Ms Collett coming in after her round on that occasion and saying that she had “come off” her motorbike. He said that on Friday 27 August 2010, he could not recall whether he was at the depot when Ms Collett returned from her rounds.[36]
[35] Transcript 25.01.12, p 428.
[36] Transcript 25.01.12, p 429.
As Mr MacAdam’s evidence on this point is consistent with Ms Collett’s, I am satisfied that in the record of interview he gave on 21 November 2011, Mr Senior was mistaken in his belief that the team leaders had reported to him that they saw Ms Collett when she returned from her rounds on 27 August 2010. Rather I am satisfied that this recollection related to an earlier incident in June 2010, when Ms Collett returned from her rounds having fallen from her motorbike.
Accordingly, other than Mr Senior’s mistaken recollection as set out in the record of interview, there is no evidence before me which directly contradicts Ms Collett’s evidence on this issue. She says that, other than an administration person who she did not have confidence would pass on the information, there was nobody actually present within the main area of the depot to whom she could report the incident before she clocked off on 27 August 2010.
Therefore subject to any issues relating to the credibility of Ms Collett’s evidence, to which I will return later in these Reasons, the evidence taken as a whole suggests that Ms Collett did not see anyone to whom she could report the incident between returning from her round and clocking off. There is a clear possibility on the evidence that Mr Warren, Mr Kirkbright or Mr MacAdam may have been present somewhere within the mail centre, although if I accept Ms Collett’s evidence, they were not within the main area of the delivery centre and she did not see them before she left to go home. The evidence also leaves open the possibility that one or more of them were not actually present at the delivery centre, but either out delivering mail or otherwise absent from the mail centre at the time Ms Collett returned from her round and subsequently clocked off.
Also relevant to the veracity of Ms Collett’s account of these events is the evidence of her mother, Ms Simms. In her statement tendered into evidence, Ms Simms confirmed that on 27 August 2010, she received a telephone call from her grandson’s school advising her that he was ill. She went to the school, picked her grandson up and brought him home.[37] She also confirmed that as her grandson had had swine flu previously she was worried that he may have caught this again. She further confirmed that she contacted Ms Collett at work to inform her of the situation and her concern.
[37] Exhibit 6.
She went on to state:
“I remember her getting home somewhere around 12:30pm in that afternoon. She came home looking quite distressed and upset. I asked her if she was okay. I told her not to worry, because Tyson looked like he was okay and not to worry about him. She said, “I’ve hurt my back again”. She looked really bad, she looked quite distressed.”[38]
She also said she formed the impression from her daughter’s demeanour that “she was in a great deal of pain”. She said:
“I remember when I asked her when she first got home if she was okay she began to cry and said that she thinks her back is really bad this time.”
[38] Exhibit 6, [5].
Ms Simms also corroborated Ms Collett’s account of taking some medication and then having a sleep with her son for “an hour or two”. Consistently with Ms Collett’s evidence, she also stated when Ms Collett woke up, she attempted to go for a walk, about 3:30pm. She said she recalled Ms Collett returning after 10 or 15 minutes and saying words to the effect “I can’t stride out it hurts too much”.[39]
[39] Exhibit 6, [9].
Ms Simms’ statement also corroborates Ms Collett’s account of receiving two telephone calls from her work mates resulting in Ms Collett deciding to join them at the local hotel, which she did “for about an hour or two”.[40] Ms Simms went on to say in her statement:
“I did contact Charmaine on the Saturday by phone following the 27th August 2010, as I was worried about her and her back, so I called to see how she was doing. She said she was in a lot of pain and walking, sitting, standing or laying down, none of them helped. …”[41]
[40] Exhibit 6, [11].
[41] Exhibit 6, [13].
Ms Simms’ oral evidence was largely consistent with her statement. However in addition to what she had said in the statement, she said she also recalled Ms Collett telling her when she got home on 27 August 2010 how she had hurt her back. She said:
“… She said she was on her bike and she reached down to a low letterbox and I think her words were similar to, ‘and I felt my back went’. She felt a sharp pain and it was gone. She felt her back go.” [42]
She also elaborated on the reasons why she formed the impression when she saw Ms Collett that she was in severe pain, stating:
“Well, Charmaine, when she first saw me she actually started - she looked like she was going to cry and she doesn’t do that. She really doesn’t show emotion very much at all. And she was - looked like she was going to cry, yes. That’s when I thought, geez, he’s all right. But it wasn’t that. It was that after but not at that point in time, no.”[43]
As to what Ms Collett said to her at that time, Ms Simms stated:
“She the pain really, really severe. And she said something about it was going down her leg at that point in time.”[44]
She also confirmed that on returning from her walk, Ms Collett had complained to her that she was not able to “stride out properly” because of “the pain in her lower back and her leg”.[45]
[42] Transcript 23.01.12, p 250.
[43] Transcript 23.01.12, p 250.
[44] Transcript 23.01.12, p 251.
[45] Transcript 23.01.12, p 251.
During cross-examination, it was pointed out to Ms Simms that in her statement she had said nothing about Ms Collett telling her how she had hurt her back. It was put to her that she had not mentioned this in her statement because Ms Collett had not in fact told her on 27 August 2010 how she had hurt her back.[46] However she maintained that she did recall Ms Collett reporting to her the circumstances in which she hurt her back. She said it was an “oversight” on her part that she had not included this in her statement.[47] She remained adamant that Ms Collett had reported this to her at the time, on 27 August 2010, rather than later.[48]
[46] Transcript 23.01.12, p 274.
[47] Transcript 23.01.12, p 275.
[48] Transcript 23.01.12, p 276.
Whilst I consider it surprising that Ms Simms did not include in her statement Ms Collett’s report to her of the circumstances in which she had injured her back, I have reached the view that this failure in and of itself does not lead me to doubt her evidence, which I found to be plausible and otherwise consistent.
Accordingly, subject to any implications flowing from other aspects of the evidence, I consider the evidence of both Ms Collett and Ms Simms on these issues to be plausible and consistent. That is, the evidence of each of them was consistent both internally and with one another. As I have noted above in the context of Ms Collett’s evidence, it is also not directly contradicted by any other evidence. The evidence of each of them accordingly supports a conclusion that the events reported by Ms Collett occurred as she claims, although she did not report the injury at the time for the reasons she has given. Notwithstanding that the evidence of Ms Collett and Ms Simms is not convincingly contradicted by any other evidence however, it is of course essential for me to evaluate the other aspects of the evidence and the implications of this, before drawing any conclusions as to whether their evidence as to what occurred on 27 August 2010 should be accepted.
Ms Collett’s failure to report the event on 27 August 2010 by telephoning or returning to her workplace or leaving a note

Clearly, Ms Collett’s case would be stronger if she had either left a note for one of the team leaders, or telephoned her workplace later in the day to report the incident, rather than leaving this until the Monday. However, if her account is correct and she was concerned for son, as well as in relatively severe pain, I do not find it difficult to accept that she decided to simply leave the depot rather than first writing a note of what had occurred for one of the team leaders.
It is perhaps more surprising that she did not leave a note asking one of her team leaders to telephone her, or telephone her workplace herself later in the day, once she had satisfied herself that her son was in no imminent danger. However her evidence was that it did not occur to her to do this. Asked why she didn’t telephone her workplace on the Friday afternoon she said “It didn’t enter my head at all to do it. I was concerned about it but my thought was on myself and my son, not worrying about procedures and protocol.”[49]
[49] Transcript 24.01.12, p 313.
Having regard to this evidence, I consider that Ms Collett has put forward a plausible explanation as to why, having left the workplace, she did not telephone the workplace later that afternoon. For completeness, I consider she has also put forward a plausible explanation for not returning to the workplace to report the incident, which clearly would have been more onerous and less practical for her than simply telephoning.
Accordingly, whilst reporting the incident by some means would have been highly supportive of Ms Collett’s case, I do not consider her failure to do so to be so inconsistent with her account as to militate significantly against its acceptance.
Ms Collett’s failure to report the incident to Mr MacAdam
There is no dispute between the parties that Ms Collett did not mention that she had hurt her back at work when she saw Mr MacAdam at the hotel on the afternoon of 27 August 2010. Further Ms Collett also conceded in her evidence that Mr MacAdam would have been an appropriate person for her to report the injury to.[50] She also accepted that if he had been present on the Friday afternoon when she returned from her round, he was someone it would have been appropriate to tell about the incident,[51] and she would have reported the incident to him.
[50] Transcript 24.01.12, p 314.
[51] Transcript 24.01.12, p 314.
However when she was asked why she didn’t tell Mr MacAdam about the incident when she saw him at the hotel, she stated “because I wasn’t at work”.[52] She maintained that she had told him that her “back is very sore”. In explaining why she did not actually formally report the incident to him, she also made reference to the previous incident when she had fallen off her motorbike. She claimed Mr MacAdam had not taken this incident seriously and had not given her an incident report to complete until Mr Senior told him to do so on the Monday following the incident.[53] She said:
“This is the same guy who didn’t give me the report when I fell of the bike only a few weeks prior. So, no, I don’t trust him to do it.”[54]
Ms Collett also maintained that she mentioned what had happened to some of her other work mates at the hotel.[55]
[52] Transcript 24.01.12, p 315.
[53] Transcript 29.11.11, p 59.
[54] Transcript 24.01.12, p 316.
[55] Transcript 24.01.12, p 317.
Clearly the fact that Ms Collett did not report the event to Mr MacAdam when she saw him on the afternoon of 27 August 2010 does not assist her case. Indeed, if Ms Collett had reported the event to Mr MacAdam when she saw him, it is quite possible, as the respondent openly conceded, that her claim may well have been accepted. However Ms Collett has put forward an explanation for her failure to report the incident to Mr MacAdam, to the effect that it seemed less appropriate when they were not at work, and she felt he had not taken a previous incident seriously.
Accordingly, whilst Ms Collett’s failure to report the incident to Mr MacAdam does not assist her case, in my view ultimately it must be weighed against other aspects of the evidence before a conclusion can be reached as to whether Ms Collett injured her back at work on 27 August 2010. In other words, I do not consider Ms Collett’s failure to report the incident to Mr MacAdam in and of itself to be sufficient to establish that Ms Collett’s account of the events of 27 August 2010 is untrue and should be rejected.
Whether the disc rupture is more likely to have occurred over the weekend
As I have alluded to above, there is no dispute between the parties that on Sunday 29 August 2010, Ms Collett umpired two hockey matches, one which she had been rostered to umpire and the other as a last minute replacement for an umpire who had failed to turn up to a match. It is part of the respondent’s case that Ms Collett’s disc rupture occurred at some time over the weekend, possibly as a result of physical activities or movements undertaken in the course of umpiring one or both of these matches.
As I understood the positions of the parties, there was no real dispute between them that Ms Collett had not been intending to umpire a junior game of hockey on the Sunday morning. In this regard, all of the evidence was to the effect that Ms Collett attended this match intending to be a spectator, as the match was a semi-final in which her good friend’s nephew was playing. However shortly before the match was due to begin, it became apparent that one of the two umpires had not arrived, and Ms Collett was asked if she would be willing to umpire the game, as she was qualified to do so. Ms Collett explained what happened next in her evidence:
“… We had noticed that, you know, there was only one umpire had turned up, and Sandra had come over and said, ‘There’s only one umpire. They will call it off’, and I – whether I put my hand up or she asked, I couldn’t – I don’t know, but I said I could if both sides agreed, that I’m on limitation with movement. I said I don’t mind, but they would have to agree to it because I don’t want to cop their abuse if I’m not moving and I miss a free here and a free there and …”[56]
Ms Collett went on to say that both coaches agreed and that she accordingly indicated that she would umpire the match. However she said:
“… but I still went to both of them anyway and explained I’m not moving a lot, so - but they said that’s fine, they knew - and I explained I’m a panel umpire. That’s what they wanted. …”[57]
[56] Transcript 29.11.11, p 73.
[57] Transcript 29.11.11, p 74.
Ms Collett went on to indicate that she umpired in a much more limited way than she would usually have done. She explained that the hockey pitch was a hundred metres long with the field cut into quarters. She said that she explained to the other umpire what her limitations were, and he agreed to cover more of the field. This had the result that she only needed to move along the side line, approximately between the halfway line and the twenty-five metre line on one side of the field, a distance of approximately 25 metres. She said she did not run at any point during the match, but only walked along the side line between two points approximately 25 metres apart. Other than that, the only physical movement she did was to “put up my arms of what way, what direction, to point, what free it is, and blow the whistle”.[58] She said the match went for two thirty minute halves, so she carried out the activities described for a total of 60 minutes with a 5 minute break in between.
[58] Transcript 29.11.11, p 79.
Ms Sandra North, being the sister of Ms Collett’s friend, was also in attendance at the hockey match on 29 August 2010. She has provided a written statement,[59] and also gave oral evidence at the hearing. With respect to the physical activities undertaken by Ms Collett in the course of umpiring the junior hockey match on the morning of 29 August 2010, her evidence was entirely consistent with that of Ms Collett. In her statement she said:
“… I definitely did not see her run and I saw her just walking up and down the field. She walked about a quarter of the field being about 16 yards and she would have been lucky to have done that much. She is a very good umpire and under 13s is not a high grade division so she could umpire standing from the half line and backline was hovering between there.
The only action she had to do was use her arms and blow the whistle in terms of the umpiring.”[60]
[59] Exhibit 3.
[60] Exhibit 3, [8-9].
She also stated:
“… I felt bad for her because I could see she was in pain and she was doing this for us so I wanted to make sure she was ok … When she was standing she looked fine. But it was only when she was walking that she looked like she was in pain. …”[61]
And:
“… I would have noticed if anything had happened like her falling or her running or slipping. This definitely did not happen. …”[62]
In this respect, her oral evidence was consistent with her statement.
[61] Exhibit 3, [10].
[62] Exhibit 3, [14].
Ms Collett’s friend, Ms Parish, who was also at the junior hockey match, has also provided a statement, [63] and gave brief oral evidence at the hearing. As to the physical activities undertaken by Ms Collett in the course of umpiring the junior hockey match, her evidence was also consistent with that of Ms Collett and Ms North. In her statement, she said that Ms Collett did not run or fall over[64] and in this respect Ms Parish’s oral evidence was consistent with her statement.
[63] Exhibit 7.
[64] Exhibit 7, [13].
As to the hockey match umpired by Ms Collett on the evening of 29 August 2010, the evidence is far more limited. However Ms Collett’s evidence was that this was a senior women’s game, and that this game had been allocated to her to umpire in advance. She said that in terms of the physical activities required of her in umpiring this game, those were the same as she had undertaken in the morning. She said the other umpire was the same one she had umpired with in the morning, and he accommodated her limitations in the same way he had in the morning. Accordingly, her evidence was that she did not run in the course of umpiring this match, but walked between two points no more than 25 metres apart, moving her arms as needed. She also said she did not slip, fall over or otherwise injure herself in the course of umpiring this match.
Accordingly, although there is no dispute Ms Collett umpired two hockey matches on Sunday 29 August 2010, there is no evidence of any event occurring during either of those matches or at any other time over the weekend of 28 and 29 August 2010 which is a more probable cause of Ms Collett’s disc rupture than the event she has described which occurred at work on 27 August 2010. Therefore, whilst this evidence does not exclude the possibility of an event occurring over the relevant weekend which caused Ms Collett’s disc rupture, it does not point to any specific event of that kind. Ultimately therefore, any conclusion to the effect that Ms Collett’s disc rupture was caused by an event which occurred over the weekend of 28 and 29 August 2010 must find support elsewhere in the evidence.
Inconsistencies in the evidence as to events and conversations on the relevant weekend
There were a number of significant inconsistencies in the evidence of the lay witnesses as to activities and conversations over the relevant weekend. The more significant of these inconsistencies arose from the evidence of Ms North and Ms Parish, as compared with that of each other and Ms Collett. Those inconsistencies all related to the events and conversations which took place on Saturday 28 August 2010 and Sunday 29 August 2010.
Ms Collett’s evidence as to what occurred on the Saturday was that she had been intending to play golf with Ms Parish but “on Saturday morning I still woke up very sore, and I rang her and cancelled”.[65] She said Ms Parish then suggested she come over to her place, which she ultimately did, together with her husband and her two sons. She said she went over to Ms Parish’s place at about 11am and stayed there until 7pm. When asked what she did at Ms Parish’s place she said she “lay on the couch”.[66]
[65] Transcript 29.11.11, p 72.
[66] Transcript 29.11.11, p 72.
However, Ms Parish’s evidence as to the detail of what happened on that day was somewhat different. In her statement she said:
“… I recall that we were going to play golf in the afternoon at some point. I remember Char coming to my house and said she cannot play golf because she had hurt her back. She came with her husband Chris. I cannot recall whether their children also came.
I recall being a bit frustrated as I was really excited about playing golf. I wish that she had contacted me sooner.”[67]
She went on to say in her statement:
“All I remember that we did that day was not much. We lazed around on the couch and watched television all day. I think we were watching movies or the football, but I do recall that my husband Craig, myself, Chris and Char were all sitting on the couch watching television together.”[68]
Ms Parish also stated that Ms Collett told her “she hurt her back at work the day before”.[69]
[67] Exhibit 7, [4-5].
[68] Exhibit 7, [6].
[69] Exhibit 7, [8].
Ms Parish’s oral evidence was broadly consistent with her statement. However she also elaborated somewhat, indicating that when Ms Collett arrived, “… I had my golf clubs out and I was waiting for her, and when she rocked up that’s when I, yes, found out she had a bad back”.[70] She also indicated that from Ms Collett’s mobility and movement, she looked sore and Ms Collett told her she was in pain. She said she did not think she had heard from Ms Collett that day before she arrived at her place.
[70] Transcript 23.01.12, p 279.
Ms Parish was also asked under cross-examination about aspects of her recollection of the Saturday. She confirmed that her recollection was that the four adults, being her, Ms Collett and their respective husbands, where all sitting in the lounge room.[71] She went on to add that at that time she recalled having two armchairs and a couch, either a two or three seater.[72]
[71] Transcript 23.01.12, p 295.
[72] Transcript 23.01.12, p 296.
When Ms Parish was asked later in her evidence about Ms Collett saying that she had been “lying on the couch”, Ms Parish said “I couldn’t say if she was lying”. She also added “I don’t think she was lying down”.[73] In this latter respect, Ms Parish’s oral evidence was consistent with her statement, where she stated:
“I think we were watching movies or the football, but I do recall that my husband Craig, myself Chris and Char were all sitting on the couch watching television together.”[74]
However as to whether Ms Collett was lying down, Ms Parish also stated toward the end of her oral evidence “I don’t want to say if she was or not because I don’t remember.”[75]
[73] Transcript 23.01.12, p 299.
[74] Exhibit 7,[6].
[75] Transcript 23.01.12, p 299.
Ms Parish also indicated in her oral evidence that on the Sunday morning she recalled saying something to her sister, Ms North, to the effect that she didn’t think Ms Collett should umpire because she had hurt her back.[76]
[76] Transcript 23.01.12, p 283.
However Ms North had a different recollection as to the exchanges between Ms Collett and Ms Parish in relation to Ms Collett’s back. In her oral evidence, Ms North said she recalled that when she saw Ms Collett and her sister at the hockey game on the Sunday morning, her sister said to Ms Collett “Char, how are you?”. She went on to state:
“… - you know, she could see she was in pain. So and she said ‘I did my back at work on Friday’. …”[77]
[77] Transcript 30.11.11, p 171.
Later in her evidence, Ms North was quite definite that although both she and her sister had been asking Ms Collett what was wrong, her sister definitely asked the question first.[78] She said she had more overheard this conversation than been a part of it.[79]
[78] Transcript 30.11.11, p 184.
[79] Transcript 30.11.11, p 185.
Later again in Ms North’s evidence the following exchange occurred:
“And what I’m asking is did it appear to you that that was the first time your sister was finding out about her having a bad back as a result of work?--- Well, I – I can only assume that, yes.”[80]
When it was put to her that she wouldn’t expect that her sister and Ms Collett had spent the whole day together the day before, she responded:
“… I am of the understanding my sister didn’t see her that weekend … besides that hockey match”.[81]
[80] Transcript 30.11.11, p 185.
[81] Transcript 30.11.11, p 186.
Ms North also agreed with the proposition that at the time that the conversation she recalled between her sister and Ms Collett took place, she assumed that her sister did not know that Ms Collett had a bad back that she may have hurt at work.[82]
[82] Transcript 30.11.11, p 186.
When it was put to Ms North that her evidence was designed to assist Ms Collett or was otherwise mistaken, Ms North said:
“I have heard that. I have heard that that morning. I didn’t fabricate it. It’s not been put into my head, and perhaps the way it came into conversation is different to my memory. I am – that’s quite on the cards. …”[83]
[83] Transcript 30.11.11, p 186.
Ms North’s recollection was subsequently put to Ms Parish and she was asked whether she had a recollection of asking Ms Collett what was wrong, to which she replied “No”.[84] Later in her evidence, she agreed that if she had asked the question suggested by her sister, she would have been enquiring about Ms Collett’s health. However she went on to add:
“Well, that would be agreed but I knew what was wrong with her. So, I mean, on that morning if I was asking her about what’s wrong, I was probably just asking – I mean, like, I would all the time ask her how she was going and see if, you know, how her back is going because I knew at that point that her back was bad, so I wasn’t asking about something new.”[85]
She also went on to state later in her evidence:
“Yes I do know she told me on the Saturday that she had hurt her back at work on the Friday, and that’s why we couldn’t play golf. …”[86]
[84] Transcript 23.01.12, p 286.
[85] Transcript 23.01.12, p 289.
[86] Transcript 23.01.12, p 292.
The inconsistencies which arise from this evidence therefore are:
˗As to whether Ms Collett telephoned Ms Parish on the Saturday morning to cancel golf, or simply arrived at her place and told her she was unable to play;
˗Whether Ms Collett lay or sat on the couch; and
˗Whether, on the Sunday morning, Ms Parish asked Ms Collett what was wrong, and Ms Collett replied that she had hurt her back at work.
As to the first of these inconsistencies, clearly little turns on which account is correct. Ms Collett and Ms Parish agree that Ms Collett cancelled golf because she had hurt her back, and that she reported to Ms Parish that she had hurt her back at work. Further it is not entirely surprising that they have slightly different recollections of the manner in which this information was conveyed by Ms Collett, and the circumstances surrounding this. Ms Parish’s recollection is more detailed, and it may well be that, in this respect, Ms Collett’s recollection is faulty and rather than telephoning Ms Parish, she went over to her place at around the time they were due to play golf, and informed Ms Parish she would not be able to play. However even if Ms Collett’s recollection is inaccurate in this respect, and Ms Parish’s version is correct, this discrepancy is not so great or so significant as to cause me to place less weight on other aspects of Ms Collett’s evidence. Accordingly, in my view, little turns on the first inconsistency from the point of view of my overall assessment of the evidence.
Clearly the second inconsistency is more significant, as it is an integral and important part of Ms Collett’s account that she was so incapacitated on the Saturday that she needed to lie down. Further she also stated in her evidence that she would not have been able to sit up for lengthy periods given the state of her back.[87]Accordingly if Ms Collett’s account in this respect is incorrect, that has significant implications for the reliability of Ms Collett’s evidence as to the circumstances surrounding the disc rupture and its aftermath.
[87] Transcript 23.01.12, p 216.

However if Ms Collett did injure her back on the Friday, I would expect her to have a more detailed and reliable recollection of what she physically did, and was able to do, on the Saturday. Whether Ms Collett lay or sat on the couch would not have been salient to Ms Parish at the time, and there is a risk in my view that her recollection in this regard could be confused with other occasions when Ms Collett is likely to have sat on her couch. Indeed when pressed toward the end of her evidence, she stated that she did not now remember whether Ms Collett was sitting up or lying down.
More troubling in this respect is Ms Parish’s evidence as to the furniture that was in the lounge room at the relevant time. On the basis of her evidence that there were two armchairs and a three seater couch, it is difficult to understand how Ms Collett could have been lying on the couch whilst three other adults were also spending time with her in the lounge room watching television. Accordingly, in conjunction with the first inconsistency between Ms Parish’s evidence and that of Ms Collett, as to how Ms Parish was advised that Ms Collett was unable to play golf, this further inconsistency does cause me some concern as to the reliability of Ms Collett’s evidence as to what she did on the Saturday.
There are a number of possible explanations for this inconsistency which do not rely on a conclusion that Ms Collett’s evidence is not truthful. Further it is also relevant that, whilst Ms Parish’s evidence was to some extent inconsistent with that of Ms Collett as to whether Ms Collett lay on the couch, her evidence was consistent with Ms Collett having a bad back which she had injured at work and being significantly incapacitated on the Saturday such that she needed to cancel the golf game which had been planned. Nevertheless, as I have indicated above, the inconsistencies between the evidence of Ms Collett and Ms Parish cause me some concern as to the reliability of Ms Collett’s evidence on this point, and more generally.
Turning to Ms North’s recollection of a conversation between Ms Parish and Ms Collett on the Sunday morning, it is relevant in my view that Ms North’s evidence in this regard is at odds both with that of Ms Collett and Ms Parish. Whilst Ms North was, at least initially, confident about her recollection of this conversation, Ms Parish was also sure that she would not have asked Ms Collett how she was or why she had a sore back on the Sunday, as she already knew about Ms Collett’s back as a result of their discussions on the previous day.
Given that Ms Collett’s and Ms Parish’s evidence is consistent in this regard, and inconsistent with that of Ms North, I am not persuaded that I should prefer the evidence of Ms North to that of Ms Collett and Ms Parish on this point. As Ms North herself acknowledged, it is quite possible that her recollection as to precisely how this conversation unfolded may be inaccurate, and as she herself was learning for the first time on the Sunday of Ms Collett’s back injury, it is possible that she has in some way transposed that state of knowledge to her sister and has a faulty recollection of the conversation. Certainly in and of itself, this inconsistency is not such as to cause me to seriously doubt Ms Parish’s evidence, or Ms Collett’s evidence to the extent it is consistent with that of Ms Parish. Subject to me being persuaded therefore that the evidence of both Ms Parish and Ms Collett is unreliable, I consider that this inconsistency is explained by Ms North’s recollection of the relevant conversation being inaccurate.
Ms Collett’s description of the injury on the morning of 30 August 2010
A few weeks after Ms Collett claims to have suffered her injury of 27 August 2010, Mr Senior completed a statement in relation to the alleged injury. In that statement, he said:
“On Monday, 30/08/2010, Charmaine rang me (Chris Senior) to advise that she will not be attending work due to back pain she claimed is work related. She claimed she hurt her back on Friday, 27/08/2010. When questioned as to why she didn’t notify on the day she said she only had a slight ache as usual and as it was the weekend she thought it would resolve by Monday. I informed her that this was the third time she had claimed an injury after the weekend and she had a claim denied before for this reason.
…
There is a variation in Charmaine’s account of events. When questioned Monday morning, she claimed only a slight ache at the time, not enough in her opinion to report the alleged incident at the time. On the incident report she claims experiencing a ‘sharp stabbing sensation into lower back’. This level of pain would necessitate immediate reporting. Charmaine is very well aware of the requirement to report any incidents given her past history of injuries.”[88]
[88] T18/55, 2011/0372.
This statement is undated. Under cross-examination, Mr Senior agreed that it was likely to have been written between 17 and 20 September 2010.[89]
[89] Transcript 25.01.12, p 464.
However, on 31 August 2010, that is the Tuesday following the alleged injury, at approximately 1pm, Mr Senior completed and submitted an Incident Report relating to the alleged injury.[90] In recording on that form the details of the injuries received, Mr Senior wrote “a sharp stabbing sensation into lower back”.[91]
[90] T16/44, 2011/0372.
[91] T16/48, 2011/0372.
In the course of cross-examination, Mr Senior was asked about the discrepancy between what he recorded on the Incident Report and what he later reported Ms Collett having said to him about her injury on 27 August 2010. By way of explanation, he said he must have had more than one conversation with Ms Collett.[92] He said Ms Collett must have told him about the “slight ache” during their first conversation, but in a later conversation she referred to the sharp stabbing pains in her back. He said that in accordance with his usual practice, he would have first telephoned Ms Collett quite early, prior to 9.00 am, to see how she was and what the problem was, and then he would have spoken to her later in the day to get more details of the incident.[93]
[92] Transcript 25.01.12, p 467.
[93] Transcript 25.01.12, p 476.
Mr Senior’s attention was also drawn to the record of interview with him conducted on 21 November 2011.[94] During that interview, he referred to having reported the incident fairly quickly due to “… the severity of the incident …”.[95] He went on to explain that he regarded the incident as severe “purely because of the nature of the sharp stabbing pains”.[96] He confirmed that he had found out about these through talking to Ms Collett on the Monday. He went on to explain that he contacted her by telephone and that she told him that:
“… She’d over reached to the letter box and she had, you know a sharp stabbing pain to the lower back and of course my first thing was when did that happen, of course she told me it was on Friday, the previous Friday on the 27^th.[97]
[94] Exhibit 12.
[95] Exhibit 12, p 4.
[96] Exhibit 12, p 4.
[97] Exhibit 12, p 4.
The interviewer went on to ask further questions of Mr Senior, mistakenly predicated on the event of 27 August 2010 being the incident where Ms Collett fell off her motorbike. However, it is clear, as alluded to above, that the incident when Ms Collett fell off her motorbike occurred on 25 June 2010, which was also a Friday.
In his oral evidence, Mr Senior explained the further inconsistency between his statement of September 2010 and the record of interview by again alluding to the fact that he had two separate conversations with Ms Collett. He said that in the first conversation, she said that she had only had a “slight ache” on the Friday and in the second conversation she reported having a “sharp stabbing sensation”.
Significantly however, Mr Senior also appeared to acknowledge in his evidence that he may have spoken to Ms Collett on the Monday following her fall from her motorbike, which occurred on 25 June 2010.[98] In effect, he did not dispute Ms Collett’s recollection that he spoke to her on the Monday following that incident, and instructed Mr MacAdam to give Ms Collett an Incident Report Form.[99] It is also relevant to note that Ms Collett’s recollection in this regard is consistent with Mr MacAdam’s evidence that on the Monday following Ms Collett’s fall from her motorbike, Mr Senior spoke to him about Ms Collett having had an incident on the previous Friday, and directed him to complete an Incident Report.[100] Mr MacAdam also gave evidence that at that time, he told Mr Senior that Ms Collett had been offered an Incident Report form on the Friday and had said “no, … she was fine”[101].
[98] Transcript 25.01.12, p 481.
[99] Transcript 25.01.12, pp 481-482, and transcript 29.11.11, p 59.
[100] Transcript 25.01.12, p 428.
[101] Transcript 25.01.12, p 428.
In summary therefore, there are significant inconsistencies between Mr Senior’s evidence and some of the documentary records. If indeed Ms Collett did tell Mr Senior early on Monday morning that she had only had a “slight ache” in her back on Friday, it is surprising this was not mentioned in the Incident Report completed by Mr Senior on 31 August 2010. On the face of things, it would appear quite misleading for him to simply record Ms Collett’s later description of “a sharp stabbing sensation into the lower back” without reference to the fact that she had earlier reported suffering much milder symptoms.
Another difficulty with this aspect of Mr Senior’s evidence is that his recollection of the first conversation with Ms Collett is inconsistent not only with Ms Collett’s evidence but also that of Ms Simms, and to a lesser extent, the evidence of Ms Parish.
In these circumstances, having regard both to the inconsistencies between his evidence and the contemporaneous documentation and the inconsistencies between his evidence and that of other witnesses, I have concluded that I do not accept this aspect of Mr Senior’s evidence as accurate. I accept that it was honestly given, however I consider it to be mistaken. In my view the most likely explanation for this mistake is that Mr Senior is recalling a conversation with Ms Collett which occurred on the Monday following Ms Collett’s fall from her motorbike on 25 June 2010.
Accordingly, I do not accept that Ms Collett told Mr Senior on the morning of 30 August 2010 that she had only experienced a “slight ache” in her back following the incident on 27 August 2010.
Medical evidence as to the likelihood of the disc rupture originating on 27 August 2010
In support of the contention that, from a medical point of view, the disc rupture with which Ms Collett presented on 30 August 2010 was unlikely to have originated on 27 August 2010, the respondent relied primarily on the reports and evidence of Associate Professor Bauze, an Orthopaedic Surgeon and Consultant.
Associate Professor Bauze first saw Ms Collett on 28 October 2010 and provided a report dated 7 November 2010.[102] As to the relationship between the disc rupture and Ms Collett’s work activities on 27 August 2010, Associate Professor Bauze stated in that report:
[102] T40/92, 2011/0372.
“… I am certain that she would not have been able to do the umpiring on 29 August 2010 if the symptoms complained of on 30 August 2010 and the pathology identified by investigations on 30 August 2010 were present on 29 August 2010. She clearly did not have a cauda equine[sic] lesion on 29 August 2010.”[103]
[103] T40/100, 2011/0372.
As to the relationship between the disc rupture and Ms Collett’s work history more generally, including the incident of 27 August 2010, Associate Professor Bauze stated as follows:
“In my opinion there is no doubt that Mrs Collett had some pre-existing degeneration of her lumbar spine which predisposed her to having the major rupture of the lumbosacral disc, with cauda equina compression, which she has had surgery for.
In the ‘totality’ of events, it is my opinion that the work incidents had no relevance to the development of the pathology which ultimately required surgery.
I do not consider that the incidents she described at work (or at home) have made a material contribution to the development of the major extrusion of her lumbosacral disc and associated subsequent cauda equina compression.”[104]
He went on to state that:
“In my opinion the underlying pre-existing pathology is the major cause of her continuing problems.”
And:
“In my opinion the current situation is the consequence of a constitutional pathological condition which is not related to any incident at work.”[105]
[104] T40/100, 2011/0372.
[105] T40/101, 2011/0372.
Associate Professor Bauze also gave oral evidence at the hearing. During his evidence he was asked whether, if the events of 27 August 2010 described by Ms Collett did occur, this could account for the disc rupture with which she presented on 30 August 2010. The following exchange occurred:
“If we accept that on the Friday before that Monday that the incident, as she described happened, bending and twisting, putting some post ... some mail, if you accept that, now when would you expect to see her presenting as you’ve just described? - - - Well, my – my opinion, really, remains that the incident on Friday could not have caused the condition that she presented with on Monday. So in my opinion, there is little relevance, actually.
Why do you say it couldn’t have caused it? - - - Well, because it – the ... you know, a – it doesn’t usually happen like that. A minor incident like that doesn’t normally cause a ... major rupture such as she demonstrated on the Monday. A significant injury, if there had been a major injury on the step on the Friday, I could accept that in the next, sort of, 24 hours, then perhaps this discussion [sic][disc rupture] would extrude. I – I think I’ve seen that. In other words, there has been a rupture of the disc on the – on one incident from a significant injury, and the material protrudes through that rupture, causing the nerve compression subsequently. It’s – it’s relatively – you know, it – it’s not unknown that someone would have a significant injury one day, recover, in a way, but go to bed, then next morning wake up with a big problem.
That doesn’t seem to have occurred in this case, and so I – I don’t – I don’t, sort of, relate with ... almost, at all. The Friday thing to the Monday thing.
Okay. Would have expected that if she did rupture a disc on Friday that as she presented on Monday, she would be presenting that way on Saturday or Sunday? - - - If yes. I would – alternatively, there may be a – no. That’s … what I would expect, if – definitely. If she had ruptured her disc, on the Friday, I would have expect that any extra activity on the weekend would have caused the Monday appearance early. Earlier on the weekend.
And do you think that she would be able to go out and walk up and down a 25 metre sideline as part of a hockey umpiring exercise? - - - Well, I’m – I’m not sure how much – I really don’t know much about umpiring of hockey. I would have thought there would be more than walking, but I don’t know, really. I wouldn’t – certainly if she was in the same problem as she was on Monday, I don’t believe that she could have walked or spent an hour on, two matches, on the – Sunday, was it? Yes.
Yes? - - - I don’t believe she could have.
... She would have been in agony”.[106]
[106] Transcript 24.01.12, pp 333-334.
In the course of cross-examination, Associate Professor Bauze also confirmed that prior to the incident of 27 August 2010, there was significant pre-existing degeneration of Ms Collett’s lumbosacral spine, which predisposed her to having the major rupture of her lumbosacral disc. The following exchange then occurred:
“Okay. Now, does that mean that by 27 August 2010, it would not have taken much to cause that rupture? - - - Yes, I think that’s correct ... it might have taken a lot, but it might not have taken a lot.”[107]
The following exchange also occurred later in Associate Professor Bauze’s evidence, with reference being made to a disc bulge that was identified in a CT scan undertaken on or about 26 May 2009:[108]
“But it could be that we had this degeneration, a bulge that gets bigger by increments, there’s weakness, you described the tears, such that a simple innocuous sounding movement, like leaning to one side could precipitate a rupture, and that rupture, over the next few days, gets bigger and causes more symptoms, so that by the Monday, it’s a massive extrusion? Could that be the course of events over the weekend? - - - It could be, but I think it’s less likely. ... it’s more than not likely than it is likely. ... if anything really bad had happened on the Friday afternoon, I don’t expect that she would have been able to go to the hotel after work. ... I would expect that by the next morning, she would have had the problems she had on the Monday. And I ... my own opinion, with no evidence at all is that it got significantly worse over the weekend, and I, really, wonder whether it was due to playing – doing umpiring hockey. Two games of umpiring hockey, on her feet. I expect more than just walking, but I don’t know. For 2 one-hour games. Something else had happened, and I reckon the most likely sequence is that an incident like the getting out of the couch, with severe pain, probably occurred on the Sunday, and on the Monday, she woke with terrible – could hardly walk. That’s – that’s the – that’s what I would expect. That’s a normal, sort of, pattern.”[109]
[107] Transcript 24.01.12, p 342.
[108] T3, 2011/0372.
[109] Transcript 24.01.12, p 346.
Associate Professor Bauze also acknowledged that the fact Ms Collett did not report the incident on the Friday had influenced him in reaching his opinion. He also acknowledged that an important indicator in determining when the disc rupture had occurred was when Ms Collett first experienced sciatic pain. However, he did not accept that if Ms Collett first experienced sciatic pain on the Friday, this necessarily meant that the rupture occurred then. Rather, he stated:
“It would be an indicator that there – that the annular ligament tear had extended, and the bulge had got worse, and was irritating the sciatic nerve.”[110]
[110] Transcript 24.01.12, p 347.
Associate Professor Bauze did agree however that in determining when the rupture occurred, it was important to know when Ms Collett first experienced problems with her bladder and bowel.[111] He also agreed that if there were “symptoms of urgency, in respect to the bladder on the Saturday,” that would tend to indicate that the rupture occurred on the Saturday or the Friday and at least before the hockey games on the Sunday.[112] He further agreed that if these symptoms were followed by bowel related symptoms on the Sunday, that would suggest an ongoing extrusion of disc material.[113] Associate Professor Bauze also agreed that if Ms Collett umpired by “walking up and down the side of the hockey pitch over a distance of 25 metres, sometimes standing, and otherwise blowing her whistle and directing with her arms” that was not the sort of activity that he would expect to cause a disc rupture.
[111] Transcript 24.01.12, p 347.
[112] Transcript 24.01.12, p 348.
[113] Transcript 24.01.12, p 353.
Later in his evidence, Associate Professor Bauze also stated as follows:
“… it’s possible ... maybe ... on the Monday – on the Friday, there had been an incident where an annular ligament had – the ligament tear had extended a bit, and I’m not sure about the leg, if there was some sciatica. Maybe there was a bit of a bulge against the – against the nerve. It ... is also possible that – that there was a tear right through that ligament, around the outside, but the stuff hadn’t really come out until the Monday. Basically, you know, if you could measure this thing, you know, and it’s – the – the stuff ... that’s in – interior of the disc is really ruptured through all its coating and pushing against the nerves in the spine, and that’s a big event. That – that hadn’t happened on the Sunday or the Friday or the Saturday, but there may have been some, you know, extra deterioration on the Friday, which is not evidence[sic] [evident] in the material I’ve got.”[114]
[114] Transcript 24.01.12, p 349.

He also agreed that if there had been a further tear to the annular ligament on the Friday, that would have made the disc rupture more likely with extra activity. He agreed it was possible that if a further tear of the annular ligament had occurred on the Friday, with further activity over the weekend that tear may have turned into an opening through which disc material had extruded. He also agreed that the movement described by Ms Collett, of leaning down to place mail in a letter box, was the sort of movement which could have extended a pre-existing tear of her annular ligament. As to whether this was likely to have been what occurred, he stated:
“Well, it’s not likely, unless she – unless she experienced severe pain at the time. You know, a disabling pain at the time. An annular ligament tear, when it suddenly happens, even if it’s interior, people feel it, and – and they – they would normally, you know, stop what they were doing or just struggle on. And then sometimes, it gradually settles down after a few hours, and then, as I say, sometimes, the next day you wake up and it’s a rupture.”[115]
As to the usual time lag between a hole being created in the annulus and disc material being fully extruded, Associate Professor Bauze said that typically this occurred overnight, but he agreed that it was a variable thing and could be longer. He said generally this would occur within 24 hours.
[115] Transcript 24.01.12, p 351.
Associate Professor Bauze also stated that whilst he considered that the rupture had probably occurred on the Sunday, with the extrusion of the disc material over Sunday night:
“It could have been getting worse – sorry. There could have been the early stages of that extrusion over the weekend. Partly depending on her symptoms that it has been mentioned, possibly – I certainly would think if she had bladder symptoms on the Saturday as has been suggested, ... that might have been an indicator that there was already significant disc extrusion at that stage.”[116]
He agreed that if Ms Collett was having symptoms on the Saturday of lack of warning with regard to needing to empty her bladder, this could suggest that the rupture had already occurred, although the extrusion was not yet complete. Further, if bowel related symptoms developed on the Sunday, that would suggest an ongoing process of extrusion of the disc material.
[116] Transcript 24.01.12, p 353.
In summary therefore, Associate Professor Bauze’s opinion was that whilst it was possible that the disc rupture originated on the Friday, with disc material extruding over the weekend, he considered it more likely that the disc rupture actually occurred some time on the Sunday.
However all of the other medical evidence is to the effect that Ms Collett’s disc rupture is likely to have occurred on the Friday when Ms Collett leaned over to place mail in a letter box, assuming the accuracy of her account of the relevant events.
Dr Guirguis, a Surgeon and Specialist in Orthopaedic and Musculoskeletal Medicine, examined Ms Collett on 8 March 2011 and has provided a report of that date. He obtained a history of the incident on 27 August 2010 which was consistent with Ms Collett’s evidence in these proceedings. He stated in his report based on this history that in his opinion “there is no doubt that her discogenic injury for which she required surgery developed substantially during the course of her employment.”[117] This opinion was given not only in the context of the incident of 27 August 2010, but also previous work-related incidents.
[117] Exhibit 9, p 5.
Dr Guirguis also gave evidence at the hearing. When asked during his evidence how he considered that the disc rupture had come about, he responded as follows:
“Well, it – put it shortly I think what was probably have happened is she have had over the years developed the structure inside the joint – inside the disc and as part of that there has been some disruption and weakening of the fibres which contains the disc and event after event that has increased as in the disruption and the weakening of the wall and in the incident in August it is highly likely that that weakening and rupture have completed and there was not just the bulge of a disc which was there previously but has been complete extrusion of the disc material and later on the following few hours and few days there was the usual reaction, swelling in the area, and it reached a threshold of critical situation where there was – it had become – because the area is very restricted – a restricted area as in size wise; the mass effect – what’s called the mass effect which is the effect of the protruded and extruded disc as well as the swelling have caused the symptoms and later on the signs where it became critical for her to undergo surgery.”[118]
[118] Transcript 24.01.12, p 370.
When asked how the disc rupture related to the event on 27 August 2010 when Ms Collett leaned over to her left to reach a low mail box while sitting on her motorbike, Dr Guirguis responded as follows:
“Well, I would say that this event, although it sounds – just finding better words – trivial – perhaps it’s not trivial but it’s a minor movement but I think that was sufficient to cause the complete rupture and the extrusion of the material from the disc and there was evidence here from the symptoms how she describe it that this was – I think it was that first time when she started to feel pain in the leg. The history before that there was no complaint of leg pain and once she get leg pain that’s an indication that there is some irritation; there is some contact with the nerves. And that developed later on into the full picture of cauda equina with increasing swelling and maybe even increasing extrusion of the material from the disc.”[119]
[119] Transcript 24.01.12, p 371.
The sequence of events as described by Ms Collett, including her attempting to go for a walk and first noticing pain through her buttock and down her left leg on the Friday afternoon, was also put to Dr Guirguis. He was asked whether this was consistent with his view that the rupture occurred on the Friday, to which he responded “yes”. He explained that he considered in this case the rupture had unfolded over two to three days, with increasing pressure on the nerves during that time.
Dr Guirguis also considered that, if Ms Collett had symptoms in relation to her bladder on the Saturday, involving some lack of warning when she needed go to the toilet, this was indicative of the rupture having happened on the Friday. Equally, if she was having similar problems with her bowels on the Sunday, he also thought this was consistent with a rupture which was progressing over the course of the weekend. He also indicated later in his evidence that although he had obtained a history that Ms Collett umpired two games of hockey on Sunday 30 August 2010, albeit in a more limited way than she would usually have done, this did not alter his opinion that the disc rupture was attributable to the incident she described as occurring on 27 August 2010.
He went on to state that where a disc rupture results in a gradual extrusion of disc material, that extrusion could occur over a period longer than 24 hours. As to whether he would expect to see debilitating pain within 24 hours of a disc rupture, Dr Guirguis consistently rejected that proposition, stating that it may take longer for a patient to experience symptoms as debilitating as those suffered by Ms Collett on 30 August 2010. He stated:
“… What I really was trying to say then is that you can have the initial episode of sudden severe pain and then not a great deal of problem for maybe variable length of time, ...”[120]
He agreed that he had seen other cases in which there had been a delay of “three days or so” between rupture of a disc and a patient becoming severely incapacitated.[121]
[120] Transcript 24.01.12, p 401.
[121] Transcript 24.01.12, p 402.
As noted above, Dr Kar Ng, an Occupational and Environmental Physician, was the doctor to whom Ms Collett first presented on the morning of 30 August 2010. He has also provided a report dated 6 February 2012 addressing this issue and gave oral evidence at the hearing.
In his report of 6 February 2012, Dr Ng stated:
“I believe the timing of Ms Collett’s disc rupture is consistent with her reported incident on the Friday 27 August 2010, when she developed a sudden onset of low back pain, whilst leaning over to deliver letters in a low post box.”[122]
He also stated as follows:
“My opinion differs from that of Dr Bauze. As mentioned in question 7, the disc rupture could possibly progress to a cauda equine syndrome in an acute course (over a period of 24 hours) or a more protracted one, as it clearly has in Ms Collett’s case. In Dr Hall’s report, he mentioned that Ms Collett’s symptoms had become worse over a period of 4 days.
With regard to her ability to umpire at a game of hockey on Sunday 29 August 2010, it is possible that Ms Collett’s level of pain was not as severe at the earlier stages of her injury, such that she would have been able to umpire the game of hockey by taking analgesia. Certainly, by the time I examined her on 30 August 2010, I do not believe she would have been able to perform these activities thereafter.”[123]
[122] Exhibit 17, p 4.
[123] Exhibit 17, p 5.
In his oral evidence Dr Ng confirmed that when he saw Ms Collett on 30 August 2010, she gave a history of a sudden onset of low back pain whilst reaching down to a letter box when delivering mail, and that on the Friday night she had developed leg pain to her hamstring together with numbness and pins and needles in her foot.[124]
[124] Transcript 24.01.12, p 411.
Dr Ng also stated that he considered there to be a direct causal relationship between the event of 27 August 2010 reported by Ms Collett and her disc rupture. In support of this, he pointed to the fact that the protrusion was more to the right, which was consistent with Ms Collett’s claim that she had leaned to the left.
Dr Ng also gave further evidence on a later hearing day, in which he confirmed his view that the history given by Ms Collett was consistent with the disc rupture having occurred on 27 August 2010, when Ms Collett performed a movement which involved leaning, bending and twisting to her left, and that the disc rupture then followed a protracted course over the ensuing weekend. He also added that in his view, the size of the cauda equina syndrome indicated that it had developed over more than one day.
Whilst he did not give evidence, a report addressing this issue was also provided by Dr Robin Chase, an Occupational Physician and President of Faculty of Occupational and Environmental Medicine of the Royal Australasian College of Physicians. In his report he stated as follows:
“… I do not agree with Professor Bauze’ opinion that he would not have expected Ms Collett to have been active at all over the weekend and that her symptoms would have on balance manifest themselves on 28 or 29 August 2010. The MRI scan on 30 August 2010 already clearly shows that she had a large central disc extrusion at L5/S1 causing severe mass effect on the thecal sac. One would not expect such a disc extrusion to occur rapidly. Disc prolapses do not always, or even usually, develop suddenly. The actual pathology is that there is a tear or rupture of the nucleus pulposus with leakage into the annulus fibrosis which provokes an inflammatory response with oedema and swelling. This will result in both the mass effect as well as an inflammatory process around the theca and the adjacent nerve roots. This is a gradual process that could easily occur over 48 to 72 hours. During that 48 to 72 hours she would have noticed increasing symptoms but at the beginning of that process they would not necessarily have been completely debilitating. However, it is clear by 30 August that she was already significantly debilitated to the point where Dr Ng arranged an urgent MRI scan.
Therefore, on the balance of probabilities it is quite conceivable that she could have developed that initial tear or rupture of the annulus fibrosis on the Friday, 27 August 2010. This, on the balance of probabilities, is far more than 51% probable and is more likely to be around 80 to 90% probably.
…”[125]
[125] Exhibit 16, p 2.
Dr Chase went on to explain that he would not defer to Associate Professor Bauze on this question because:
“… occupational physicians are specifically taught to consider work causality (or otherwise) of a vast array of conditions and are specifically taught logical thinking, objective analysis and the use of the Bradford Hill criteria in assessing causality”.
He went on to add:
“… I would further make the observation that I personally see a very large number of back injuries on a day to day basis, and it is probable that the average occupational physician would see more acute back injuries than an orthopaedic or neurosurgeon …”[126]
Later in his report, Dr Chase stated:
“… there is a plausible strong association between the history of injury on the Friday and her reported symptoms – there is consistency, there is biological plausibility and there is a temporal relationship.”[127]
[126] Exhibit 16, p 2.
[127] Exhibit 16, p 4.
In summary, therefore, apart from Associate Professor Bauze, all of the other doctors who have given evidence are unanimously of the view that Ms Collet’s disc rupture was most likely precipitated by the event she describes on 27 August 2010. Further none of those doctors regard the history given by Ms Collett or her activities over the weekend as especially inconsistent with a disc rupture originating on 27 August 2010 and progressing over the subsequent weekend. Some of the doctors have also pointed out features of the history and Ms Collett’s presentation which are highly consistent with the disc rupture having been caused by the event on 27 August 2010. For example, Dr Ng has referred to fact that the extruded material was more on the right side, which is consistent with the rupture having occurred due to Ms Collett leaning to the left. Doctors Chase and Ng have also commented on the size of the extrusion being consistent with it having occurred over the course of a number of days.
In light of this evidence, taken as a whole, I am satisfied that it is medically plausible for Ms Collett to have suffered a disc rupture originating on the 27 August 2010 which progressed over the weekend and resulted in her presentation on Monday 30 August 2010. Indeed, if Ms Collett’s evidence as to the events of 27 August 2010 is to be accepted (which I am yet to determine), I am satisfied that the incident she describes as having occurred at work, on the medical evidence before me is the most likely cause of the disc rupture. Further, in reaching that conclusion, I note that Associate Professor Bauze also acknowledged that it was a possibility that the disc rupture had occurred on 27 August 2010 and followed a protracted course.
Ms Collett’s failure to seek medical treatment over the weekend of 28 and 29 August 2010
There is no dispute on the evidence that Ms Collett did not seek medical attention until the morning of 30 August 2010. However the preponderance of the medical evidence is to the effect that in the earlier stages of the progression of her disc rupture, her symptoms are not likely to have been as debilitating as they were by Monday 30 August 2010. Further, although Ms Collett’s evidence was that the pain she experienced on 27 August 2010 was worse than any back pain she had had before, it is nevertheless the case that Ms Collett had a relatively long history of back pain, which at times she reports as having been severe. Therefore whilst she reports her symptoms as being more severe on Friday 27 August 2010 than they had been previously, it is less surprising against that background that she attempted to manage the pain she was experiencing by reference to strategies she had employed for previous episodes of back pain, including use of strong analgesia and anti-inflammatories. I consider that somebody who had not previously had significant back pain and had not received advice in managing that pain, would have been more likely to seek medical attention more quickly. Further Ms Collett also stated, both in her response to the Claims Manager at the time, and in her oral evidence, that she expected to be sent to see the “Work Doctor” on the Monday in any case. She said she therefore attempted to manage her symptoms over the weekend, pending that appointment.[128]
[128] T34/81, 2011/0372.
Accordingly, I do not regard Ms Collett’s failure to seek treatment in and of itself as being significantly inconsistent with her disc rupture having occurred on the Friday. In reaching that conclusion, I have also had regard to the fact that Doctors Ng, Guirguis and Chase were all aware that Ms Collett did not seek medical attention until the Monday and yet all accepted her history as indicating that she suffered a disc rupture on Friday 27 August 2010.
Contemporaneous records as to the onset of bladder and bowel symptoms
Amongst the evidence before me are the notes made by Dr Ng relating to Ms Collett’s consultation with him on 30 August 2010, which do not refer to symptoms of affecting her bladder, although in regard to her bowels they record “constipated but no loss of sphincter control”.[129] Further in his report of 6 February 2012, Dr Ng stated “… by the 8 September 2010 she reported having two episodes of urinary incontinence and complained of saddle anaesthesia …”[130]. However he did not mention her reporting any such symptoms on 30 August 2010.
[129] Exhibit 18.
[130] Exhibit 17, p 4-5.
In his report of 10 September 2010, Dr Hall, who performed surgery on Ms Collett, also reported that prior to the operation she had had “urinary urgency” and “altered sensation in the perineal region” although she had remained continent.[131] However he also did not make any record of Ms Collett suffering disturbance of her bladder and/or bowel function over the weekend of 28 and 29 August 2010.
[131] T30/74, 2011/0372.
Accordingly, I accept the respondent’s contention that there is little support in the contemporaneous documentation for Ms Collett’s account of suffering bladder and bowel symptoms over the weekend of 28 and 29 August 2010, although Ms Collett has given evidence of being asked about such symptoms by Dr Ng in a phone call following her appointment with him on the morning of 30 August 2010, and reporting such symptoms to him. Her mother also gave evidence of recalling that conversation, with Ms Collett indicating that she told Dr Ng she had been experiencing some bladder and bowel symptoms.[132] However Dr Ng was not specifically asked during his evidence about this aspect of his conversation with Ms Collett on 30 August 2010.
[132] Transcript 23.01.12, p 260.
Accordingly, I accept that Ms Collett’s evidence in this regard is largely uncorroborated and therefore “stands or falls” on whether I accept her evidence as reliable. The absence of contemporaneous corroboration also militates somewhat against acceptance of her account of events, although in my view it does not weigh heavily in the overall balance of the evidence.
Conclusions from the evidence
In summary, I do not consider there to be any reliable evidence before me which directly contradicts Ms Collett’s version of events. In particular, I do not accept that it is established on the evidence that there were others present within the main area of the depot when Ms Collett returned from her round on 27 August 2010. In other words, I do not accept it as being established that she saw any other person, apart from the administrative assistant she has referred to, to whom she could have reported the incident before she left to go home.
Having said that, it is also clear that Ms Collett did not make any attempt to leave a note for one of her team leaders before she left the workplace, or contact any of them later in the day. However, I consider that Ms Collett has provided an explanation for her failure to report the injury on 27 August 2010 which I also regard as plausible.

I also do not accept that on the morning of 30 August 2010, Ms Collett reported to Mr Senior that she had only experienced a “slight ache” in her back on the afternoon of Friday 27 August 2010. Rather I find that Mr Senior’s recollection in that respect is mistaken and Ms Collett did not make that statement to him on the morning of 30 August 2010.
I do accept that Ms Collett saw Mr MacAdam on the late afternoon/evening of 27 August 2010, but did not actually advise him of what had occurred, or that it had resulted in a very severe aggravation of her back pain. I also accept that there are some significant inconsistencies between the evidence of Ms Collett, Ms Parish and Ms North, with the most salient of these in my view being the inconsistency between the evidence of Ms Collett and Ms Parish as to whether Ms Collett sat on the couch or lay down during Saturday 28 August 2010.
It is also clearly established that Ms Collett did not seek medical treatment until Monday 30 August 2010, and there is no record of her complaining of symptoms relating to her bladder and bowel having occurred over the weekend of 28 and 29 August 2010, although there are records which support her evidence that she experienced pain in her left leg from Friday afternoon onwards. Further it is also clearly established that it is entirely medically plausible that she suffered the disc rupture on 27 August 2010, in the circumstances she has described, notwithstanding that the symptoms did not become completely debilitating until Monday 30 August.
In addition, I have concluded that the evidence does not point to any other event or activity which is a more likely cause of Ms Collett’s disc rupture then the incident she had described as occurring in the course of her duties on 27 August 2010.
After putting to one side the contentions and evidence which I have rejected or not accepted, the respondent’s case therefore depends upon me rejecting the most important parts of Ms Collett’s evidence, essentially upon the following bases:
(a)She did not report the incident of 27 August 2010 to Mr MacAdam;
(b)There is evidence which is inconsistent with Ms Collett’s account that she lay down at Ms Parish’s place, rather than sitting on the couch; and
(c)Ms Collett did not seek medical treatment until Monday 30 August 2010, and there is no contemporaneous record of her complaining of symptoms relating to her bladder and bowel over the weekend of 28 and 29 August 2010.
The question for me therefore is where these aspects of the evidence, and the inconsistencies pointed to by the respondent, are sufficient to cause me to doubt the bulk of Ms Collett’s evidence or whether, taking the evidence as a whole, I am nevertheless satisfied that her evidence is substantially reliable.
Having carefully considered the aspects of the evidence highlighted by the respondent and weighed those matters against the other aspects of the evidence, I have come to the conclusion that I am satisfied, notwithstanding the difficulties and inconsistencies referred to above, that Ms Collett’s evidence was truthful and substantially reliable. I have come to that conclusion for a number of reasons.
First, Ms Collett’s account of the events of 27 August 2010 is corroborated to some extent by the evidence of her mother, which I also accept as being truthful and substantially reliable. That is, whilst her mother has no direct knowledge of the events, she corroborates Ms Collett’s evidence insofar as she gave evidence of Ms Collett’s condition when she arrived home and how she said she had hurt her back. This evidence is also supported to some extent by Ms Parish’s evidence of what Ms Collett told her the next day, as well as the fact that Ms Collett was significantly disabled by back pain on the Saturday morning and remained so over the remainder of the weekend.
Further I also accept the consistent evidence of Ms North, Ms Parish and Ms Collett as to the way in which Ms Collett found herself to be umpiring on Sunday morning, and the limitations she observed in so doing. I also accept their consistent evidence that she did nothing more than walk along the sideline and move her arms in the course of umpiring on the Sunday morning and I also accept Ms Collett’s evidence that the umpiring that she did on Sunday evening was limited in the same manner. I further accept Ms North’s evidence that Ms Collett appeared in pain and restricted in her movement on the Sunday morning, which is consistent with the evidence of Ms Parish and Ms Collett.
Perhaps most significantly, I also accept the consistent evidence of Dr Ng, Dr Guirguis and Dr Chase that Ms Collett’s history is entirely consistent with her having sustained a disc rupture in the course of her duties on the afternoon of 27 August 2010. I also accept their evidence that her reports of left leg pain, numbness and pins and needles is consistent with and indicative of the disc rupture having occurred on the Friday. I have also taken into account the fact that there is no evidence of any other event having occurred over the weekend of 28 and 29 August 2010 which is more likely to be the event precipitating Ms Collett’s disc rupture.
After careful deliberation, I have concluded that Ms Collett’s failure to report the injury on 27 August 2010, including to Mr MacAdam, has been satisfactorily explained by her, by reference to her son’s illness, her own state of distress, the circumstances surrounding her encounter with Mr MacAdam later that day, and her perception of his reaction to the previous back injury she suffered on 25 June 2010.
As to the inconsistencies between the evidence of Ms Collett, Ms North and Ms Parish, I have concluded that those inconsistencies, in the context of the evidence as a whole, are not such as to cause me to reject Ms Collett’s evidence as false. In relation to the conversation Ms North says she overheard between Ms Parish and Ms Collett on 29 August 2010, I have concluded that, in light of the consistent evidence of Ms Collett and Ms Parish, Ms North’s evidence in this respect is likely to be mistaken although her evidence was honestly given.
As to the differing accounts of Ms Collett and Ms Parish as to their communications surrounding cancellation of the golf game, given Ms Parish’s more detailed recollection, I consider it to be likely in that this respect Ms Collett’s recollection is mistaken and she did not in fact telephone Ms Parish before arriving at her place on the Saturday morning.
In relation to the issue of the couch and whether Ms Collett sat up or lay down, whilst this is a difficult issue, on balance I am satisfied that Ms Collett did lay down as she claims to have done and to the extent Ms Parish had any contrary recollection, that recollection was mistaken. If there had been other serious discrepancies between the evidence of Ms Collett and any other aspect of the evidence, I may well have concluded that her evidence was unreliable. However this discrepancy is not significant enough in my view to warrant that conclusion. As I have indicated above, I consider it likely that the precise detail of Ms Collett’s activities on that day were less salient to Ms Parish than to Ms Collett, and this probably explains her imperfect recollection of precisely what Ms Collett was doing and specifically, whether she was sitting or lying down on that day. Further I also note that, when pressed, Ms Parish said she could not clearly remember whether Ms Collett was sitting up or lying down in any case.
I accept that it is difficult to reconcile Ms Collett’s evidence with Ms Parish’s evidence as to the configuration of her lounge room at the time. However I have also concluded that there are potential explanations for this discrepancy which are consistent with Ms Collett’s account being accurate, and this discrepancy does not lead me to conclude that Ms Collett’s evidence is unreliable.
Finally, having accepted other aspects of Ms Collett’s evidence for the reasons given above, notwithstanding the absence of corroboration in the contemporaneous documentation, I also accept Ms Collett’s evidence that she had some symptoms relating to her bladder and bowel over the weekend of 28 and 29 August 2010, albeit those symptoms are not recorded in the subsequent medical records. I consider there to be a number of possible reasons for these complaints not having been recorded by the doctors who saw Ms Collett in the aftermath of the disc rupture. Amongst these is the fact that Ms Collett appears not to have associated the symptoms with her back pain when she first saw Dr Ng on 30 August 2010. After that, her symptoms progressed and the precise status of those symptoms over the weekend of 28 and 29 August 2010 may well not have been a primary focus for her or her doctors. It is significant in my view however that she did report left sided leg pain and numbness on the Friday when she saw Dr Ng on the Monday morning.
Notwithstanding the aspects of the evidence relied upon by the respondent, I have therefore concluded that I accept Ms Collett’s evidence, as well the evidence of Doctors Ng, Guirguis and Chase, which I prefer to the evidence of Associate Professor Bauze. It accordingly follows that I am satisfied that the events described by Ms Collett as having occurred in the course of her duties on 27 August 2010 did occur, and further that they precipitated the disc rupture with which she presented on 30 August 2010.
Conclusion as to liability
As to whether Ms Collett’s disc rupture constitutes an “injury” narrowly defined or a “disease”, I am assisted by the observations of Northrop J in the Full Federal Court decision of Health Insurance Commission v Van Reesch (1996) 45 ALD 302 at 307-308 (referring to the judgment of the High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310), as follows:
“From a consideration of the reasons for judgment in Zickar, it follows that the first matter that should have been determined by the tribunal in the present case was whether personal injury arising out of or in the course of her employment, was caused to Mrs Van Reesch. It may be accepted that there was evidence before the tribunal to support a finding that she suffered a disc prolapse described by the treating surgeon as a ‘right S1 nerve root compression due to extended nucleus L5-S1’ arising out of or in the course of her employment with the commission during the week commencing 13 October 1986. To adapt the wording of Toohey, McHugh and Gummow JJ in Zickar, the present case is not one of the autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which Mrs Van Reesch relies. It may be accepted that her back condition was an autogenous disease but her claim to personal injury is based on the disc prolapse which occurred. There is evidence that the disc prolapse was not an inevitable consequence of the disease. The rupture, being the prolapse, has been treated. If there was no rupture there would be no event answering the description of personal injury and Mrs Van Reesch would be driven to rely upon the definition of disease and s 29 of the 1971 Act. But there was such an event and the presence of the disease does not preclude reliance upon that event as personal injury.”
Whilst these observations were made in the context of an earlier Act, the Compensation (Commonwealth Government Employees) Act 1971, I am satisfied that they are equally applicable in the context of the SRC Act.
Accordingly, I am also satisfied that the disc rupture suffered by Ms Collett is properly regarded as an “injury” within the meaning of s 5A(1)(b) of the SRC Act, which arose in the course of Ms Collett’s employment. As I am also satisfied that the injury has resulted in incapacity for work and impairment, it follows that the respondent is liable to pay compensation for that injury, pursuant to s 14 of the SRC Act.
ONGOING LIABILITY FOR THE INJURY OF 8 JUNE 2010
As I have recounted above, in a determination dated 10 January 2011, the respondent determined that it had no ongoing liability to pay compensation to Ms Collett under s 16 and s 19 of the SRC Act in respect of her injury of 8 June 2010, from 10 January 2011. That determination was affirmed by a reconsideration decision on 29 November 2011, after the commencement of the hearing in this matter and in the circumstances I have alluded to above. The basis of both the determination and the reconsideration decisions was primarily the report of Associate Professor Bauze, to the effect that Ms Collett’s “continuing lower back problems” were related to “a pre-existing degeneration of the lumbar spine”.[133]
[133] Reconsideration decision 29 November 2011, T76/114, 2011/5124.
Clearly, in the light of my conclusions above, that position is not sustainable. On my conclusions, Ms Collett’s “ongoing back problems” after 27 August 2010 were largely attributable to her work related disc rupture sustained on 27 August 2010. In these circumstances, there is a degree of artificiality in attempting to determine whether, after 10 January 2011, Ms Collett continued to suffer the effects of her injury on 8 June 2010. Indeed, as a matter of practicality, it is not clear that it is necessary for me to do so. Clearly Ms Collett’s incapacity and medical expenses related to the condition of her back after 10 January 2011 will be compensable in any case, as a result of my conclusion that the respondent is liable for Ms Collett’s disc rupture. Further it is difficult to foresee any circumstance in which it will be relevant to determine whether any incapacity, medical expenses or impairment are also related to Ms Collett’s injury of 8 June 2010. In effect, it appears to me at present that the question of ongoing liability for the effects of the injury of 8 June 2010 has been subsumed and overtaken by the fact that I have found the respondent to be liable for the effects of the much more severe injury on 27 August 2010.
However in case either party contends that I should proceed to determine the question of ongoing liability for the injury of 8 June 2010, I have decided to give the parties an opportunity to be heard as to why the issue the subject of Application 2011/5124 should not be remitted to the respondent, to be reconsidered consistently with these Reasons. If neither party contends that I should not remit that issue to the respondent, then that is the course I propose to adopt.
DECISION
In application 2011/0372:
(a)the reconsideration decision of 24 January 2011 is set aside and in substitution for that decision it is decided that:
(i) the respondent is liable to pay compensation to the applicant pursuant to s 14 of the SRC Act for the condition of “L5/S1 disc rupture resulting in an incomplete cauda equina syndrome” sustained on 27 August 2010; and
(ii) the matter is remitted to the respondent for determination of the applicant's entitlements under other provisions of the SRC Act.
(b)the Tribunal:
(i) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(ii) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant pursuant to s 67(8) of the SRC Act.
In application 2011/5124:
(a)the Tribunal grants liberty to the parties to provide written submissions within 14 days as to why the reconsideration decision of 29 November 2011 should not be set aside and the matter remitted to the respondent to be reconsidered in accordance with these Reasons, and/or why the costs of the proceedings should not be paid by the respondent; and
(b)orders that in the absence of any such submissions:
(i)the reviewable decision of 29 November 2011 is set aside and the matter is remitted to the respondent pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 to be reconsidered in accordance with these Reasons; and
(ii)the respondent is to pay the costs of the proceedings incurred by the applicant pursuant to s 67(8) of the SRC Act.

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of
......................[Sgd]..................................................
Administrative Assistant
Dated 1 February 2013

Date(s) of hearing 29 & 30 November 2011, 23-25 January 2012, 18 September 2012

Date final submissions received 5 October 2012

Counsel for the Applicant Ms M Kelly

Advocate for the Applicant Ms B Barca

Solicitors for the Applicant Lieschke & Weatherill

Counsel for the Respondent Mr M Golan

Advocate for the Respondent Mr M Stephens

Solicitors for the Respondent Litigation Section, Australian Postal Corporation

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/0372 2011/5124
Re	Charmaine Collett
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Senior Member K Bean
Date	1 February 2013
Place	Adelaide

Date(s) of hearing	29 & 30 November 2011, 23-25 January 2012, 18 September 2012
Date final submissions received	5 October 2012
Counsel for the Applicant	Ms M Kelly
Advocate for the Applicant	Ms B Barca
Solicitors for the Applicant	Lieschke & Weatherill
Counsel for the Respondent	Mr M Golan
Advocate for the Respondent	Mr M Stephens
Solicitors for the Respondent	Litigation Section, Australian Postal Corporation