MICHAEL RICHARD DAVIDSON and COMCARE
[2009] AATA 206
•27 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 206
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600193
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL RICHARD DAVIDSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member L Hastwell
Professor P L Reilly AO (Member)Date27 March 2009
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and in substitution for that decision determines that Comcare is liable to pay compensation to Mr Davidson for his condition of “intracted migraines”.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – liability for injury arising out of or in the course of employment – blows to the head in the course of tactical defensive training – intracted migraine headaches – also suffering viral illness at time of incident – failure to immediately report injury – predisposition to headaches – causation – employment determined to be a material contributing factor – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14
Comcare v Sahu-Khan [2007] FCA 15
REASONS FOR DECISION
27 March 2009 Senior Member L Hastwell
Professor P L Reilly AO (Member)
1. Michael Davidson, in the course of his recruit training to be an Australian Federal Police Protective Service Officer, was involved in what is colloquially known as Red Man training in early September 2005. He asserts that in the course of that training he sustained a number of blows to his head that caused him to suffer from intracted migraine headaches.
2. On 19 December 2005, Mr Davidson submitted a claim for compensation with respect to the condition of “intracted migraines resulting from training incident”. The respondent (Comcare) denied liability for this condition on 23 March 2006. Mr Davidson sought a reconsideration and on 28 June 2006 the primary determination was affirmed.
3. Mr Davidson seeks of review of the decision to this Tribunal.
relevant legislation
4. The relevant legislation is contained in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Section 14 of the SRC Act provides as follows:
“14 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.”
5. “Injury” is defined in s 4(1) of the SRC Act in the following terms:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
6. “Disease” was defined at the time of the incident in s 4(1) of the SRC Act in the following terms:
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
issues
7. The issues for the Tribunal to determine are:
·did Mr Davidson sustain physical contact or blows to the head as alleged in the course of the Red Man training exercise; and
·if so, did this contact or these blows cause him to suffer an injury or aggravate a pre-existing condition or injury?
background facts
8. There are a number of non-contentious facts in this case which the Tribunal will set out at the outset.
9. Mr Davidson was born on 5 July 1979 and was aged 28 years at the time of the hearing.
10. In late 2004 he applied to the Australian Federal Police (AFP) Protective Service Branch to become a Protective Service Officer.
11. In his pre-assessment employment health form, that he completed on 14 December 2004 for the purposes of this course, his response was “no” to a question about whether he had ever previously suffered from migraines or frequent or severe headaches.
12. On 17 December 2004, he was assessed medically fit by Dr Alan Gormly of Health Services Australia to undertake the AFP Protective Service physical agility and exercise testing program required for the course.
13. On 8 August 2005, he commenced the 11 week recruit training course which included both practical and theoretical exercises.
14. A specific technical defensive tactics exercise known as the Red Man exercise was part of the practical component of the course.
15. The Red Man exercise is divided into four stages. Each stage is approximately one minute in duration. A safety officer is present throughout the exercise and blows a whistle to signify the end/beginning of each phase of the exercise.
16. The first stage involves the instructor (the Red Man), who is dressed in a heavy red foam protective outfit and who wears a red helmet, stands motionless, while the student strikes the Red Man with a baton.
17. In the second stage, the Red Man moves within a one metre radius of the student presenting different sides of the body as the student strikes him with a baton.
18. The third phase involves the Red Man moving within a wider radius of the student and delivering slow motion punching and kicking in order for the student to re-act either with baton strikes or evasion.
19. In the fourth phase, the Red Man moves quickly or charges towards the student with arms extended. The students are to evade the Red Man and if they fail to evade him, the Red Man may push the student or pull the student to the ground.
20. The student participating in the exercise wears a lighter black padded protective suit and helmet. The students that are not the immediate participants in the exercise form a circle around the combatants. They hold striking pads that face inwards and effectively create a boundary.
21. The alleged incident took place in the fourth phase of the exercise, which is when the Red Man charges the student and the student is to evade the charging. If the student fails to evade the Red Man, he will usually be pinned against the wall of pads or brought to the ground by the Red Man.
22. The fourth stage is the fastest and most aggressive stage of the exercise.
23. If a student needs to stop the exercise because they are injured or having difficulties, then they can call out “no duff” and the exercise is suspended.
24. On 2 September 2005, Mr Davidson participated in the Red Man exercise with approximately 20 of his course colleagues.
25. The Red Man involved in the alleged incident was Steven Hall, an experienced Red Man instructor.
26. Mr Davidson participated in the fourth stage of the exercise twice on that day as he was deemed not to have properly conducted the fourth phase on the first attempt. He did not call out “no duff” on either occasion.
27. Participants in the course are advised to report any illnesses or injuries to training instructors prior to and following exercises. A daily injury check list is kept. The check list for Friday 2 September 2005 indicates that Mr Davidson did not report any injury that day. Other participants did report injuries on that day.
28. Mr Davidson was absent on sick leave from the course on the days immediately following the incident, being 5, 6, 7 and 9 September 2005.
29. Mr Davison first sought medical advice for headaches on 6 September 2005.
30. A medical certificate for Workers Compensation purposes was signed by a neurologist, Dr Gytis Danta, on 5 December 2005. He diagnosed Mr Davidson’s headaches as being a result of head injury which occurred on 2 September 2005.
31. Mr Davidson completed a claim for Workers’ Compensation on the following day.
the hearing
32. The Tribunal heard evidence from Mr Davidson and from a number of other witnesses, including three expert medical witnesses.
33. A number of exhibits were received into evidence, including the documents under s 37 of the Administrative Appeals Tribunal Act 1975. Where relevant, exhibits will be referred to.
mr davidson’s evidence with respect to the incident and its sequellae
34. Mr Davidson provided the Tribunal with some of his background personal history. He has worked in various occupations and had deferred his university studies in 2005, being the year that he applied to join the AFP Protective Service.
35. At the time that he was involved in the Red Man exercise, he was suffering from “the flu”. He had been suffering from this for some 3 to 4 days prior to this training commencing.
36. The training took place in Canberra and he was accommodated at a local hotel during this time. His brother was also a participant in the same training exercise.
37. He told the Tribunal that the incident that he believes to be the cause of his injury and subsequent headaches occurred in the fourth phase where the instructor dressed in the Red Man outfit (Exhibit A1), charges at the student who is dressed in the black outfit (Exhibit A1).
38. He described the incident in the following terms:
“… into the final minute I was overcome with exhaustion and on one of his [Steven Hall] charges I failed to move in time and I was pushed against the wall, and the wall of students inadvertently closed around me, sort of, pinning me in a sort of cocoon. … I felt trapped, … My shoulders were pinned by these pads and at that point, Steven Hall commenced flailing punches at me. … it wasn’t targeted on a specific area. In the beginning it was just a variety of punches, some of them were glancing, others hit the body. I received three very significant blows to the head that jarred my head backwards, and I do remember seeing, like, a - stars.”
39. Mr Davidson described the punches as being round house type punches which would glance off the side of his head. At various times he tried to protect himself, but said that he was too exhausted to defend himself. He recalls blows connecting along the jaw line as he felt the impact straight on, and his head jarred backwards. These blows came in rapid succession and he described his head as snapping backwards.
40. Immediately after the incident, he left the circle and sat down and experienced a feeling of extreme nausea. He then ran to a nearby bathroom and vomited. He then rejoined the students. His brother, Aidyn O’Connor, was one of the participants in this group of recruits and became aware that he was unwell.
41. He recalls that after the incident he had a conversation with the other instructor, Megan White, who advised him that both he and another student had not passed the fourth stage as they had used defensive tactics that they had learned in previous martial arts training. He then repeated the fourth phase. He also recalls Megan White telling him that he had been tested harder because of his previous martial arts training, which he had disclosed to instructors at the beginning of the course. He did not disclose to her that he had vomited. His explanation for this was as follows.
“Well, basically in that environment you feel as though you don't want to divulge certain things. It's like revealing a weakness, basically, and I knew that because I was under the influence of the flu I also attributed it to partly that, as well, …”
42. He felt dizzy and light headed for the rest of the day and describes gradually developing a headache which became progressively worse as the day wore on. He returned to his room at the hotel and he recalls vomiting on more than one occasion that evening. His brother, Aidyn, came to see him and witnessed his condition. Mr Davidson suffered migraines for the whole of the weekend and the Monday immediately following. He first sought medical treatment for the persistent migraine headache on Tuesday 6 September 2005. He did not attend the course on the Monday as he was feeling too unwell. Dr Steele at the Kingston Family Surgery prescribed pain killers when she saw him on the Tuesday.
43. He took sick leave until 8 September 2005 when he returned to the course for one day and participated in a gun handling exercise. He then had the following day off and consulted the doctor once more because of the headaches. He did not return to the course again until 12 September 2005. He participated in the course for a number of days in the following week. He told the Tribunal that he participated despite still suffering ongoing headaches because of his concern that he would be asked to leave the course if he did not persevere with it.
44. On 21 September 2005, he consulted Dr Bobba of the Belconnen Medical Centre about the headaches. The migraines were becoming progressively worse and he said that in the week that he saw Dr Bobba he was experiencing migraine six or seven times a week. His symptoms were severe pain, nausea, light headedness and dizziness. He would find a dark place and rest when the migraines began. He could not tolerate light. Strong painkillers were prescribed, including Panadeine Forte, Cafergot and Imigran. Dr Bobba referred him for a CT scan.
45. On the morning of 21 September 2005, Mr Davidson was taken aside by instructors Steve Hall and Robert Hedges and informed that he had missed too many days of the course and he would be unable to complete that particular course. He was told that he could possibly finish the course at a later date. He did not have a clear recall of the detail of that conversation and he was unable to recall whether he had mentioned to Mr Hall and Mr Hedges during this conversation that his absenteeism has been caused by the incident that occurred during the Red Man training.
46. A brain scan carried out later that same day was normal. No focal brain lesions were demonstrated and it reports there was no demonstrated cause of the headaches (T4/10).
47. Mr Davidson had a meeting the following day with a number of the convenors of the course. The brain scan results were available and discussed at that meeting. There is a record of this meeting in a file note (ST15/80). Mr Davidson acknowledged that it appears from that file note that he did not report any link between the Red Man training and his headaches at that meeting. He was vague as to when he first told any of his superiors of his belief that there was a link between his training and his migraine headaches. He did not challenge the veracity of the file note of that meeting.
48. When he was suspended from the course on 21 September 2005, he went and stayed with his fiancée at her home in Canberra. He remained living there until his return to South Australia in 2006.
49. He was able to resume his training on 17 October 2005 and he completed the course over the next two weeks. This consisted of practical training, including civil disorder training, advanced firearms training and micro fighting. These components of the course were quite physical and he successfully completed them. Despite his successful completion of these components he was still suffering headaches, but they were not as debilitating as they had previously been.
50. After finishing the course he commenced duties at Parliament House in Canberra in November 2005. He said that he experienced only mild headaches during the first two to three weeks there and then the headaches increased to migraine headaches. He ceased working there because of the migraine headaches in the second half of November.
51. He saw Dr Bobba on 25 November 2005, who referred him to a neurologist.
52. He saw the neurologist, Dr Danta, in Canberra on 5 December 2005. He was still taking a significant amount of painkilling medication for his headaches. He had used up all his sick leave. Dr Danta recommended an intravenous course of treatment at the National Capital Private Hospital. Mr Davidson was unable to afford the treatment. He did not work again for the AFP Protective Service after 5 December 2005.
53. In January 2006, a general practitioner provided a Comcare medical certificate which stated that based on the available information, Mr Davidson’s migraines were caused by the incident that had occurred while training for the AFP Protective Service.
54. Mr Davidson returned to South Australia in February 2006. He said that he could no longer afford to stay in Canberra and had exhausted all leave entitlements. He then consulted Dr Stephen Byrne at Goolwa, who was his previous family doctor, for treatment of his ongoing migraine headaches.
55. In 2006 he resided in Adelaide and was in receipt of sickness benefits from Centrelink. He told the Tribunal that the migraine headaches were reasonably frequent at the beginning of 2006, but then began to reduce in frequency as the year went on. He was prescribed preventive medication, which appeared to reduce the frequency of the migraines.
56. By the beginning of 2007 the frequency and severity of the migraines had reduced. He was experiencing what he described as the odd minor headache, but he felt that his migraines were well under control by early 2007.
57. At the date of the hearing, he said that he suffered from headaches once or twice a week. He had re-enrolled in a correspondence course at Deakin University.
58. He was cross-examined at length about any history of prior head injuries. It was common ground that in 1994, he was assaulted by a gang of youths and he recalls suffering a migraine immediately thereafter. He recalled also sustaining a blow to the head in 1997, when he was tackled during a football match and suffered a migraine. On that occasion, he lost consciousness for a short period. He recalls having three to four migraines immediately following the football injury. He did not recall suffering further headaches between 1997 and 2005.
59. He told the Tribunal that he used to enjoy sport, including practising martial arts and playing American football. He enjoyed running and working out prior to the Red Man incident.
60. His mother had occasionally suffered headaches, but to his knowledge she had never experienced migraine. He considered that what he termed “headache” is manageable with medication such as Panadol or Panadeine Forte, whereas he described “migraine” as being a headache that was completely debilitating, with extreme pain, nausea and sensitivity to light.
61. He remained adamant that he had received the blows to the head as alleged. He was of the view that although the Red Man instructors wore a padded outfit, they were fit and able to conduct themselves with some speed and agility in those outfits.
62. There was some exploration in cross-examination of whether there could be any link between his general mental health and his headaches. He acknowledged suffering from depression at times, but denied that he suffered from headaches associated with stress.
63. In January 2006, he learned that his fiancée was going to be sent back to Brazil, which he acknowledged was a depressing prospect for him. She returned to Brazil in March 2006 and it was at this time that he returned to reside in South Australia while his claim for compensation, which he had lodged in December 2005, was still under consideration in Canberra.
64. Once back in South Australia he received treatment for his headaches from Dr Byrne, his former general practitioner. Painkilling medication was prescribed. He made enquiries about employment with the AFP Protective Service in Adelaide, in the hope that when he was “ready to work” he could return to work in Adelaide. He was directed to return to work in Canberra in April 2006, but declined to do so.
65. He has been seeing a psychiatrist, Dr Seidel, since 2007 for an unrelated condition of depression which has now been diagnosed as bipolar disorder. He resumed his involvement in martial arts in late 2006. His migraines had become more random, but were aggravated by stress reactions. He experienced the return of migraines in 2007 which, in his mind, were associated with stressful periods in his life such as when he returned to university study in 2007.
66. He now takes preventative medication which was prescribed by Dr Byrne in Adelaide and that appears to have assisted in management of the migraine problems. In addition to the preventative medication, he now takes medication for his psychiatric disorder.
summary of the evidence of other witnesses to the red man incident
67. Mr Davidson’s brother, Aidyn O’Connor, was present during the Red Man training when the alleged incident occurred.
68. He told the Tribunal that when the incident occurred he was one of the participants forming the circle in which the exercise was taking place and he was holding a large body mat as part of the ring. He confirmed that Steve Hall was the relevant instructor at the time. He described Mr Davidson being attacked by “a flurry of punches” as Mr Davidson backed towards the area where Mr O’Connor was standing. He saw several of these punches strike his brother around his face and the side of his head.
69. When asked whether he noticed anything else, he commented as follows:
“Three of the blows in particular stood out as being … with a lot more force because at that point, I saw Michael’s head jar to the side quite sharply and he was sort of stumbling backwards, trying to gain his composure and break away from the Red Man.”
70. He described these punches as being between a round house and a straight arm punch. His view was that the force used by the instructors varied, depending on the participant and that less force was used on female participants with the greatest force being used on the larger, younger males. His brother was one of the largest men in the course.
71. He said that he had also experienced blows to the front of the face and a blow to the back of his head when he was participating in the circle with the instructor. He described the blows that he had experienced as being close to full force. He has also had previous martial arts training and he expressed the opinion that the blows that his brother experienced were at 80 to 90 percent of full force. He expressed this view based on the sharp movement that his brother’s head made when he was hit.
72. He said that when the exercise stopped, he tried to take some water to his brother. He observed Mr Davidson dropping down to one knee and closing his eyes and then going to the toilets. When he went to Mr Davidson’s room at the hotel that evening, he found him vomiting in the toilet and Mr Davidson had told him that he had been sick after the training session.
73. He was aware of his brother’s headaches in the weeks following. They were both staying at the same hotel and he would visit Mr Davidson frequently. He was aware that his brother missed a lot of training days because of the headaches.
74. He was adamant that he had good vision of the way the blows were landing on Mr Davidson during the incident. He said that he was only a metre or so away from the Red Man and Mr Davidson at the time of the incident. He described his brother as falling back against the pads after the first few strikes.
75. He could recall his mother had suffered headaches at some stage. He thought the term “migraine” may have been used to describe those headaches on occasions. She normally had good health and she suffered these headaches for a period of time, but he could not recall for what period.
76. A second participant in the same course and in the Red Man training exercise, Mr Gary McDonnell, also gave evidence. He was not, on his account, a close friend of Mr Davidson. He described the training as being challenging and he described the demeanour of the Red Man in the fourth phase as “threatening”. He said that the Red Man would strike the participants “in the stomach and the legs, the arms, face, head, all those sorts of places”.
77. Because everybody was wearing protective head equipment, it was difficult for him to identify any particular participant, but he recalled one person sustaining a series of blows that were “excessive in comparison to the rest of us”. He described that person as staggering backwards “and they were taking left, right, left, right, left, right blows to the head”. He could not specifically identify this participant as being Mr Davidson.
78. He is not a close acquaintance or friend of Mr Davidson, but he was familiar with him as a person who was on the course at the same time as him.
79. His recall was that on the day of the Red Man exercise, a student had called “no duff” in the course of the exercise as he had a neck injury which he had reported at the end of that day.
80. Mr McDonnell confirmed that at the beginning of each day, students were asked whether they had obtained any injuries from the previous day or whether they had any disability or sickness and at the end of each day similar questions were asked. A record was kept and students were asked to sign at the end of each day whether or not they had received any injuries.
other relevant evidence
81. The course co-ordinator for the particular course, Mr Robert Hedges, gave evidence for Comcare. He is a serving member of the Australian Federal Police.
82. He had dealings with Mr Davidson during the course and said that there was no mention of injuries by Mr Davidson during the course. He was satisfied that if there had been a mention of injuries, it would have been properly followed up with a work incident report. He could recall a discussion about Mr Davidson’s headaches and about an incident that had happened to him when he was a lot younger.
83. Mr Hedges has been a Red Man instructor himself and was aware of what was involved in Red Man training and the policies and procedures that instructors are required to follow. He expressed surprise at the allegation that someone was repeatedly and deliberately hit in the head. He commented that the policy is that blows should not land on the head, but he admitted that accidental blows may occur to the head. He said that blows should only be at about 40 to 50 percent level of force, but acknowledged that he was not present at the training in question and could not specifically comment about the incident.
84. He described the type of injuries that typically occur during Red Man exercises as strains, pains and shoulder injuries. He could recall someone sustaining a minor back injury and he said that dislocated shoulders were common.
85. Mr Steven Hall, who was the Red Man instructor in question, gave evidence and identified himself as the person in the Red Man suit in the training exercise. He had been involved as an instructor in the Red Man exercises for 16 years.
86. He denied striking Mr Davidson in the head but he did concede that contact could have been made to his head by accident in a grapple motion. He described the fourth phase of the exercise in the following terms:
“The idea, the simulation, is to actually – to make a tackle. It’s simulating a tackle, so you’re running towards them with your arms extended and the idea of the exercise is for the recruit to get out of line of the attack. In the event that they don’t, they are captured in a tackle-type situation.”
87. He conceded that in the process of that grapple action, unintentional contact could have been made with the head.
88. He said that the degree of force to be used by an instructor during the exercise was 5 to 10 percent. He explained that the Red Man suit is tiring and there are normally two or even three instructors who take it in turns to be in the centre of the ring. There is also a safety officer involved and he said that if an instructor struck a participant in the manner alleged, then that would have been stopped by a safety officer because it was so completely outside the guidelines.
89. He has worn the Red Man suit many times. He estimated it weighed 5.2 kilos and described it as a restrictive piece of equipment. He acknowledged that unintentional contact could occur to the recruits in the course of the training as this space is confined, but if contact did happen it would have been accidental. It could be caused by the recruit going in the wrong direction at the wrong time. He considered that the visibility through the Red Man helmet is good, although the students’ peripheral vision is more limited.
90. He had no memory of the particular course that Mr Davidson was on. He said that if in the fourth phase someone does a reversion to an inappropriate technique of defence, the phase is stopped and the student is asked to repeat the phase.
91. The worst injury that he had seen in a Red Man exercise was a broken ankle. The most predominant injuries are either a soft tissue injury, a strained ankle, a tripping injury or fatigue.
92. Ms Megan White, the safety officer during the exercise in question, gave evidence. She had been involved in recruit training between 2002 and mid 2006. Her role was to brief the students and to carry out safety checks and injury checks. At the time that Mr Davidson did his Red Man training, her role was to control the training activity and assess students against the competency standards. She was authorised to stop the activity and the training whenever a safety breach took place. Her responsibility was for the control and welfare of both the students and the instructors.
93. She confirmed that injury checks are done prior to and at the completion of every training day. If injuries were reported, there was an obligation to investigate the injury further and make appropriate follow up. The supervisor would be notified if it resulted in the student not being able to undertake training.
94. She was adamant that the training technique would not allow a recruit to be repeatedly struck in the head, but she agreed that accidental contact could be made two or three times to a student’s head. The Red Man exercise occurs very quickly as it simulates an operational situation and to intervene she blows a whistle and everyone stops their activity. She said that it was rare for her to intervene. She generally tried to stand inside the ring so that she has better control of the situation. She conceded that it was possible that she could have missed someone being punched, but said that if she had seen it occurring, she would have stopped it.
95. Ms Diane Hart, the team leader of student administration in the AFP Protective Service at the time of the incident, was present at a meeting with Mr Davidson on 22 September 2005, being the day after he was suspended from the course because of his absenteeism. He did not mention the Red Man incident in the course of that conversation, but in the context of discussions about his migraine headaches he did mention a prior injury when he was set upon by youths when he was much younger.
96. She also gave evidence that in the induction phase of the course, students are advised that if they are injured during any training or at work, then they must complete a workplace incident report form and she was confident that had Mr Davidson mentioned that his headaches were related to a workplace injury, she would have advised him to fill out such a form.
97. She recalled that at some stage after September 2005, he had stated that he thought the migraines may have related to the Red Man incident and she could vaguely recall telling him that he should fill out an incident report form. She could not be accurate about the date of that conversation but she agreed that in a statement made on 1 December 2006 (ST29/342) she had said that conversation took place in September 2005.
98. Ms Vozzo (formerly Ms Porcaro), a Protective Service Officer, gave evidence that she thought that towards the end of the course she had spoken to Mr Davidson and he had said that he commenced getting migraines due to being hit in the head by the Red Man. She thought that was in late September or in October.
99. Mr Grant Warriner, a Protective Service officer who did his training at the same time as Mr Davidson, also gave evidence. He had also prepared a statement (Exhibit R10) in which he stated that he had never seen any student get punched or struck repeatedly in the head during any Red Man exercise. He has also worked as a Red Man instructor for approximately eight months at some stage after completing his training.
100. On the day that Mr Davidson claims to have sustained blows to the head, Mr Warriner had called “no duff” when he was in the Red Man circle as he hurt his neck when the helmet spun on his head. He had a pre-existing neck injury.
medical evidence
101. Dr Stephen Byrne, who is a medical practitioner working for the Goolwa Medical Centre, gave evidence for Mr Davidson. Mr Davidson has consulted him from time to time since 1998 during periods that Mr Davidson was residing in Adelaide.
102. His medical report of 22 March 2007 was received as Exhibit A6. It summarised the history of his contact with Mr Davidson. His medical notes with respect to Mr Davidson (Exhibit A7) confirmed that the only consultation prior to 2005 in which headaches were mentioned was a headache associated with a viral illness in 2001 and a headache related to sinusitis in 2001. Otherwise, there was no history of headaches.
103. In March 2006, after his return from Canberra, Mr Davidson consulted Dr Byrne over a number of months, complaining of the migraine headaches. Dr Byrne prescribed strong pain killing medication for these headaches and preventative medication.
104. The notes of a consultation on 20 March 2006 report that Mr Davidson told him that he had sustained a head injury while training for the Federal Police on 2 September 2005. Mr Davidson described headaches that were frontal and then extending to the rest of his head. Dr Byrne last saw Mr Davidson in March 2007 as after that Mr Davidson left the Goolwa area to reside in Adelaide.
105. Dr Byrne had also referred Mr Davidson for psychiatric treatment because of mood swings and depression that he had reported to Dr Byrne.
106. In his report he expressed the opinion that Mr Davidson suffered from vascular headaches related to the injury. When questioned as to what he meant by that, he responded as follows:
“Vascular headache is perhaps a more specific term for the common use, migraines, and I thought they were due to the head injury he suffered … in his training in Canberra.”
107. When asked as to whether he had been provided with a detailed history about the blow or blows to the head, Dr Byrne said that he had relied on two medical reports, rather than directly questioning Mr Davidson about the details of the incident. He had received a report from Dr Danta which gave him some description of the incident as “knocks to the head”.
108. The headaches described to him by Mr Davidson were sometimes minor and sometimes severe and there were days when Mr Davidson did not have any headaches. He acknowledged that there were other stressors in Mr Davidson’s life, including the death of his grandfather and the end of a relationship in the years prior to 2005.
109. Dr Gytis Danta gave evidence by telephone link to the Tribunal. He is a neurologist of 35 years experience who has a particular interest in headaches and epilepsy. He saw Mr Davidson on one occasion in December 2005 upon referral from Dr Bobba, who was treating Mr Davidson in Canberra at the time.
110. He wrote a medical certificate for Mr Davidson for Workers Compensation purposes on 5 December 2005 (T/8) in which he provided a diagnosis of “intracted migraines after head injury”.
111. He had also written three reports. The first two, dated 7 December 2005 and 9 February 2006, deal with diagnosis and his proposed management of the headaches (Exhibit A9). He wrote a further report to Comcare dated 20 February 2006 (T13/41-43).
112. He told the Tribunal that there was no conclusive determination as to what can cause a migraine. His view was that Mr Davidson suffers from migraine without aura and the severest attacks had been brought on by a head injury, being the injury that occurred in the Red Man incident. He considered that such an injury was “not an uncommon precipitant of headache in some migraine sufferers”. He commented as follows:
“… there is no doubt that there are some patients who are predisposed to have headache even after very minor head injuries. This condition has been described as ‘footballers headache’ …, for example, many years ago when people would hit a soccer ball and come down with a headache on a regular basis, so much so that they would have to give up the game or do something else …”
113. He described migraines as lasting hours or even days and he considered Mr Davidson’s account of suffering re-occurring severe headaches or migraines for many months after the incident was plausible.
114. Dr Danta saw Mr Davidson three months after the alleged incident and he accepted the history as given to him by Mr Davidson. He focused on finding a solution.
115. He considered that Mr Davidson’s headache had fluctuated in severity since the time of the incident. Mr Davidson described “a continuous headache upon which was superimposed episodes more severe, meaningless, type headaches”.
116. He did not find it particularly surprising that Mr Davidson had been able to complete the course as he said that with a mild headache he would not be precluded from carrying out the sort of tasks required.
117. He was not surprised that the CT scan was normal. He expressed the opinion that headache does not usually show up on a CT scan. CT scans are looking for underlying structural conditions that may give rise to a headache such as a brain tumour or a haemorrhage. The fact of a normal CT scan did not change his opinion in any way.
118. He was questioned about the extent to which the “flu-like” illness that Mr Davidson was suffering at the time of the incident could have been influencing the headaches. Mr Davidson had not mentioned this aspect of the matter to him during the consultation.
119. He expressed the opinion that if Mr Davidson was suffering from any brain inflammation at the time of the Red Man incident, he would not have been able to participate at all. He thought that if he was suffering from a viral infection it must have been mild.
120. He maintained the view that it was most likely that the headache was due to the head injury. He said a viral infection can produce a prolonged headache and he acknowledged a condition of post-viral syndrome that can cause headache. He said that prolonged headaches after a viral infection generally occur with a severe viral illness.
121. He was of the opinion that the sort of post-traumatic headache that he considered Mr Davidson to be suffering from can persist for years and decades and symptoms can fluctuate.
122. Professor Richard Burns gave evidence. He appeared as an expert medico-legal witness for Comcare. He is retired from professional practice and working as a consultant. He saw Mr Davidson on one occasion and specifically for the purposes of preparing a report for Comcare which is dated 16 April 2007 (Exhibit R11).
123. In that report he concluded that the headache suffered by Mr Davidson on 2 September 2005 “may well have been a migraine (often called footballer’s migraine, induced by mild blows to the head, as happened on two occasions in the past)”.
124. He went on to conclude:
“I consider Mr Davidson would have developed his current condition (migraine without aura and previously continuous daily headaches) as a natural progression of a pre-existing condition (migraine) irrespective of employment The effects of his pre-existing condition have overtaken the effects of the condition due to the alleged injury sustained on 2 September 2005.”
125. In his evidence to the Tribunal, Professor Burns was reluctant to concede that there could be any ongoing link between the headaches suffered by Mr Davidson over a period of months and the head injury. He considered that the headache that lasted for some two days after the alleged incident could have been related to the blows to the head, but he considered the subsequent headaches had nothing to do with the event that happened in September.
126. He also expressed the opinion that Mr Davidson’s headaches had nothing to do with the flu that he had experienced around the time of the incident.
127. Nevertheless, he was aware of anecdotal reports of people developing specific types of migraine after neck or head injury, but he referred to them as the exception and re-iterated that there is no known causal relationship between migraine and head trauma.
128. He agreed that a head injury without loss of consciousness could lead to a series of migraines over a period of months. He commented as follows:
“But without loss of consciousness, I mean, well as I was saying … there is no know causal relationship but like everything in medicine, people will report something exceptional, so there are these isolated case reports, as I said, particularly with injury to the neck where people have developed a series of headaches, particularly what’s called basal artery migraine, that’s migraine which arise from the artery at the back of the brain following head injury, but – I mean, that’s as far as it goes.”
129. Professor Burns referred to Mr Davidson having a history of headaches prior to the injury and commented that because of what he referred to as Mr Davidson’s “genetic tendency to have migraine” he was more prone to get a headache induced by a blow to the head that someone who does not have that genetic predisposition.
130. When cross-examined, he made it clear that he had formed the view that Mr Davidson was predisposed to migraine because of what he perceived to be a history of his mother suffering from migraine. He agreed with the proposition that a head injury can increase the frequency of migraine headaches in someone known to suffer from migraine. He conceded that it was possible that Mr Davidson may have suffered migraines or headaches for a period of months after the head injury itself.
131. He commented that the treatment proposed by Dr Danta was treatment advocated for people who suffer from continuous severe migraine.
discussion of other relevant material
132. A transcript of a telephone conversation between Mr Davidson and Federal Agent Graeme Marshall was contained at ST28/156. That conversation took place on 7 December 2006. Mr Davidson’s account of what occurred during the Red Man Incident on that date was largely consistent with what he told the Tribunal.
133. In that interview he described level four of the Red Man exercise as being “flat out for a minute”. He said that the instructor would come at students, tackle them and try to bring them to the ground. The objective of this scenario being to test the application of procedures students had been taught to deal with a stressful situation. He told Federal Agent Marshall that he was told by the instructors after the training that they “went hard” on students with previous martial arts training, to see if they would revert back to previous training.
134. He described the strikes to his head as occurring only in the last minute of the scenario. His description of the actual incident was consistent with what he had told the Tribunal, save that there was a reference to accepting 10 to 12 blows which he described in that conversation as being “round-house punches” or “haymakers”. He said that the “haymakers” hit him directly on the side of the head and he could not see them coming. He said that other students commented that it looked “savage” and that his head was bouncing around pretty hard. He said that this comment was made by his brother and by another person whose name he could not recall.
135. He explained to the interviewer that he did not call “no duff” as he was in the final minute of the exercise and he wanted to “push it through”. He described the blows as being in quick succession over a period of 10 to 15 seconds. He thought that a reasonable amount of force was used as his head was rocking back and forth.
discussion of the evidence
136. The Tribunal found Mr Davidson to be a straight forward witness. He endeavoured to truthfully answer questions put to him. He did not appear to tailor his answers to suit his case.
137. The incident in question occurred some years ago and all the evidence must be viewed in this context.
138. The Tribunal also accepted the evidence of Mr Gary McDonnell as being truthful. The interesting aspect of his evidence was his description of the Red Man training as being a harder and tougher part of the exercise than the instructors who gave evidence appeared willing to admit. Mr McDonnell could not indentify Mr Davidson as being the individual who sustained a particularly tough round at the hands of the instructor, but his perception was that the Red Man would strike the students in both the head and the face as well as other parts of the body.
139. The Tribunal formed the view that Mr O’Connor’s evidence as to his own experience during the Red Man training and his account of what occurred to his brother involved a level of detail that was possibly not entirely accurate. He has had a lot of time to consider his evidence and he is loyal to his brother and it is perhaps not surprising that he presented a bird’s eye view of the events. The Tribunal does however accept as accurate his observations about his brother’s reaction immediately following the Red Man incident. The Tribunal also accepts that his perception at the time was that his brother was subjected to a reasonably strenuous time during the Red Man exercise and did receive a number of upper torso and head blows.
140. Some issue was made of the fact that Mr Davidson spoke of receiving 10 to 12 blows to the head in the interview of 7 December 2006. Dr Cheng in her report to Dr Byrne dated 6 February 2007 also referred to him receiving 10 to 20 times in the head by the trainers (Exhibit A8).
141. In his evidence to the Tribunal, Mr Davidson spoke off receiving a number of blows and in particular three significant blows to the head. This is not necessarily inconsistent with his account to the interviewer or to Dr Cheng.
142. The incident occurred some years ago. Memory is frail and can alter over time. Mr Davidson’s account of the incident and the immediate aftermath has remained largely consistent throughout.
143. The Tribunal accepts his account of what occurred during the Red Man training. It is a fast and vigorous final phase of the training which takes place in a very short space of time. It is acknowledged by the witnesses for Comcare that injuries do occur during Red Man training.
144. The Tribunal accepts Mr Davidson's evidence that immediately after the training he was told that he had been tested harder then some of the other students because of previous martial arts training.
145. Mr Hall is unlikely to admit that he acted outside the normal protocols and standards for the Red Man training. In his evidence, he put the force of his blows at 5 to 10 percent, whereas his colleague, Mr Hedges, commented that for training purposes the use of force should not be greater than between 40 to 50 percent, but he could only comment on the Red Man training that he attended.
146. The Tribunal does not accept Mr Hall’s evidence where it conflicts with that of Mr Davidson. Nevertheless, the Tribunal does not consider that there was anything deliberate or vicious in the way in which Mr Hall conducted the training with Mr Davidson. What emerged from all the evidence is that the Red Man training, in its final stage, is fairly fast and furious. Accidents do occur and blows to the head can occur.
147. The Tribunal preferred Dr Danta’s evidence to that of Professor Burns.
148. Professor Burns’ evidence must be seen in the context of his role in this matter. He gave evidence as a medico-legal expert for Comcare and he showed reluctance to concede that Mr Davidson’s headaches could have been caused by the incident in question, despite the fact that it would appear to be an extraordinary co-incidence that Mr Davidson would develop significant continuous headaches immediately consequent upon blows to his head.
149. Without having met Mr Davidson's mother and without any proof that she ever suffered migraine, he formed the conclusion that she was a migraine sufferer and that Mr Davidson had a familial tendency to migraine.
150. He did, however, concede that continuous migraines following a head injury without loss of consciousness could happen in rare instances.
151. Mr Davidson’s medical records do not support a finding that he suffered from headaches in any significant way prior to the injury. He did suffer significant headache after two prior head traumas spaced many years apart. The evidence of Mr Davidson and his brother as to their mother’s headaches is inconclusive. They gave differing accounts of their memory of her headaches.
152. Dr Danta has also had many years of experience as a neurologist and one of his specialties is headaches. He saw Mr Davidson only once when he diagnosed him as suffering from intracted migraines. Based on the history given to him by Mr Davidson, he formed the opinion that the headaches were consequent upon the blows that Mr Davidson received during the Red Man training.
153. He did not see him for medico-legal purposes. Based on his own experience, he had no difficulty in accepting the proposition that continuous migraine, or cluster headaches, could result from the sort of injury that was described to him by Mr Davidson.
findings of fact
154. The Tribunal made the following findings in addition to the matters set out in paragraphs 9 to 31(supra):
·There is insufficient evidence to establish, on the balance of probabilities, that Mr Davidson’s mother suffered from the condition of migraine or that Mr Davidson suffered from a genetic tendency to migraine.
·Mr Davidson suffered several blows to the head of a force in excess of what was acceptable under the guidelines when he participated in Red Man training on 2 September 2005.
·Mr Davidson was also suffering from a flu-like illness at the time. It is more probable than not that it was a mild viral illness from which he was suffering.
·In the fourth and final stage of the Red Man exercise, he was exhausted and sustained a number of blows to his head and possibly his jaw.
·Mr Davidson felt ill and dizzy immediately following the fourth phase of the Red Man exercise. He vomited. He progressively developed a headache as the day wore on and by that evening had a bad headache.
·At the conclusion of the Red Man exercise that day, Mr Davidson was told by the safety officer that he had been tested harder than some of the other students because of his prior martial arts training.
·Mr Davidson did not initially connect the headaches that he developed with the Red Man training and it took him at least two to three weeks to make that connection. This was partially because he was suffering from a viral illness at the time and thought that he may be suffering a symptom of that illness.
·Mr Davidson sought medical treatment for recurring headaches over the following months and he suffered periods of incapacity as a result of the severity of the headaches from which he was suffering.
consideration and application of the law
155. In this case, there is a clear conflict in the medical evidence with Dr Danta taking the view that the headaches which occurred in the month following the incident on 2 September 2005 were, on the balance of probabilities, related to those blows to the head. He had seen this happen in other cases and he had no difficulty with accepting the causal link between the incident as alleged and the headaches.
156. Professor Burns, on the other hand, was very reluctant to accept that, on the balance of probabilities, there could be a link between the incident on 2 September 2005 and the headaches. He conceded that the immediate headache was probably the result of the blows to the head, but he wanted to attribute the ongoing headaches to familial tendencies, rather than to the blows to the head.
157. The Tribunal is satisfied that the condition of ongoing migraines from which Mr Davidson suffered during 2005 is a disease rather than an injury within the meaning of the SRC Act.
158. For a disease to be compensable, there must be a material contribution to that disease by the employment as required by the definition in s 4(1) of the SRC Act as it was at the time of the incident in 2005.
159. In Comcare v Sahu-Khan [2007] FCA 15, the Federal Court considered the meaning of the phrase “in a material degree” and the definition of “disease” in the SRC Act. The test is whether the condition was contributed to or aggravated in a material degree by his employment. Finn J commented as follows when considering the s 4 definition. He said:
“16. Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.”
160. The Tribunal must determine therefore whether there is a significant causal relationship between the employment and the ailment from which Mr Davidson suffered, namely the condition of intracted migraine, that he suffered for some months after the Red Man incident.
161. The Tribunal is satisfied that it is not reasonable to attribute the onset of severe headaches immediately following upon the Red Man incident to familial factors and to co-incidence.
162. It is likely, based on the history of prior assaults, that Mr Davidson did have a vulnerability to headaches as a result of head injury. The fact that he may have had a pre-existing vulnerability is not an answer to his claim. The physiological change in his condition appears to have been triggered by the incident on 2 September 2005 and so the material contribution, ie the triggering factor, was an incident in the course of his employment.
163. The Tribunal is satisfied, on the balance of probabilities that the intracted migraines from which Mr Davidson suffered in the months immediately following the Red Man training on 2 September 2005 were contributed to in a material degree by the blows to the head that he sustained in the course of the final and most aggressive stage of that training.
164. In the circumstances, the Tribunal sets aside the decision under review and in substitution for that decision determines that Comcare is liable to pay compensation to Mr Davidson for his condition of “intracted migraines”.
I certify that the 164 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Professor P L Reilly AO (Member)
Signed: .....................................................................................
AssociateDates of Hearing 27/28.3.08, 31.3.08, 1.4.08 & 17.10.08
Date of Decision 27 March 2009
Counsel for the Applicant Mr N Healy
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr S Apps
Solicitor for the Respondent Sparke Helmore
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