Scully and BIS INDUSTRIES LTD (Compensation) - [2017] AATA 185

Scully and BIS INDUSTRIES LTD (Compensation) [2017] AATA 185 (16 February 2017)
Division:GENERAL DIVISION
File Number: 2015/3547
Re:GRANT SCULLY
APPLICANT

BIS INDUSTRIES LTDAnd
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:16 February 2017
Place:Brisbane

The decision under review is set aside. The Applicant is entitled to compensation pursuant to s 14 of the Act, and the matter is remitted to the Respondent to calculate the quantum of compensation.
.................................[Sgd].......................................
Senior Member J Sosso
CATCHWORDS
WORKERS’ COMPENSATION – Applicant employed as a fly in/fly out worker - whether the Applicant suffered an injury – whether work resulted in an aggravation of pre-existing ailment – suddenness of physiological change – overall period or episode of work – the decision under review is set aside and remitted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 108, 108C
CASES
Attorney-General (Victoria) v Commonwealth (2007) 230 CLR 369
Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508
Bell Group (in Liq) & Ors v Westpac Banking Corporation & Ors [2008] WASC 239
Comcare v PVYW (2013) 250 CLR 246
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369
O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000; 235 FCR 164
Plumb v Comcare (1992) 39 FCR 236
Re Liu and Comcare [2004] AATA 617; 79 ALD 119
Westrupp v BIS Industries Ltd [2015] FCAFC 173; 238 FCR 354
REASONS FOR DECISION
Senior Member J Sosso
16 February 2017
Introduction

Mr Grant Scully (the Applicant) seeks review of a decision (Exhibit 1 T41 pp 492) made on 28 May 2015 by Ms Sharon Coleman, Senior Case Manager, for and on behalf of Bis Industries (the Respondent), that the Applicant was not entitled to compensation under

s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of a claimed lower back injury.
The Applicant commenced employment with the Respondent on 2 April 2014 as a Driver Grade 2 (Exhibit 1 T3 p.19). The Respondent is a provider, inter alia, of high payload off-road load and haul solutions for mining and resource companies. The Applicant was the operator of a side tipper off-road road train at the Fortescue Metals Group Cloudbreak mine site in Western Australia. He was a ‘fly-in fly out’ (FIFO) employee who was engaged on a two weeks on and one week off basis (Exhibit 7 [7]). Truck drivers at the Cloudbreak mine site worked in either A or B Crew, and worked day and night shifts in rotation. The Applicant worked approximately twelve hours each shift and was employed on a full-time basis.
The Applicant claims that one or more of the trucks he was driving had faulty truck seats which caused excessive jarring, bouncing and jolting movements and did not provide him with adequate lumbar support. As a result of the bouncing and jarring, the Applicant claims that he suffered back…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 185
Decision Date: 16 February 2017

CaseChat Overview and Summary

The applicant, a road train operator employed by BIS INDUSTRIES LTD, sought compensation for an injury allegedly sustained during his employment. The dispute centred on whether the applicant suffered a compensable injury under section 14 of the relevant Act, specifically whether his work resulted in an aggravation of a pre-existing lower back ailment. The matter came before J Sosso SM for review of a prior decision that found no compensable injury.

The court was required to determine two primary legal issues. Firstly, whether the applicant suffered from an "ailment" as defined by the Act, and if so, whether his employment with the respondent materially contributed to that ailment. Secondly, if the condition was not classified as a "disease" under the Act, the court had to consider whether the applicant suffered an "injury (other than a disease)", which generally involves a sudden and ascertainable physiological change, or if the employment aggravated a pre-existing injury.

His Honour applied the principles outlined by the High Court in *May*, which require a fact-by-fact consideration of the evidence. The court examined whether the applicant's lower back pain constituted an ailment and whether his employment, particularly the jarring experienced while driving road trains and the alleged faulty seats, materially contributed to it. The court also considered the applicant's assertion of a culture of not reporting vehicle defects, which may have prevented him from seeking timely repairs. The court noted that while the applicant had pre-existing lower back pain, it had eased significantly before his employment and he had worked in various physically demanding roles since leaving school without further trouble until his employment with the respondent.

The decision under review was set aside. His Honour found that the applicant was entitled to compensation pursuant to section 14 of the Act, and the matter was remitted to the respondent to calculate the quantum of compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The reviewable decision in this matter is a decision that there is not a compensable injury under s 14, as distinct from the quantum of compensation if there is a compensable injury. The sole question to be determined by the Tribunal in this matter, is whether there is a compensable injury under s 14.The Evidence The Applicant was aged 48 whilst he was employed by the Respondent as a road train operator. He worked for the Respondent for approximately 6 months in the period April to October 2014. Prior to commencing employment with the Respondent, the Applicant had previously suffered lower back pain following vacuuming in the late 1990s and was treated with a cortisone injection. His pain eased after two days and he did not have further trouble until his employment with the Respondent - Exhibit 1 T27 p.464. Since leaving school the Applicant has worked as a screen printer, waiter, order picker, forklift operator and courier driver – Exhibit 5 p.2. Each morning, whilst employed by the Respondent, the Applicant was required to attend a pre-start meeting to ascertain which road train had been allocated and its location. The Applicant, together with his co-workers, would be transported to the relevant road train. During the pre-start meetings employees were encouraged to report any hazards or concerns. The Applicant asserts that at one of those meetings he reported faulty truck seats which were causing excessive jarring, bouncing and jolting movements, without providing adequate spinal support – Applicant’s Statement of Issues paras 4-5. A helpful explanation of the procedure adopted at pre-start meetings was provided by Mr Alan John Cooksey, a road train driver at Cloudbreak in his Outline of Evidence (Exhibit 12):“35. The first step is to lock out the vehicle and check for dead – this means you are checking that the vehicle is properly isolated.36. The next step is checking the oil and coolant.37. Once that has been done, you complete your Take 5s, checking for dangers inside the footprint.38. Once you have checked for dangers, you can enter the footprint and check around the vehicle for things like flat tyres.39. Once you have done that, you can take your lock off the vehicle and start the prime mover.40. You need to check the lights and do another walk around.41. On your way around, you start the power trailer, which cannot be started from inside the cab.42. During the pre-start check, you also get into the cab and check your seat and seatbelt, as well as logging into Bis Track and Mine Star.43. Finally, you do a horn blast and check your brakes.44. During the pre-start check, you should adjust the air suspension to the driver’s seat to suit your weight.” The Applicant gave oral evidence on 12 December. He asserted that he experienced jarring all the time whilst driving road trains and experienced pain. He asserted, during cross-examination, that there was a culture at Cloudbreak of not reporting problems with vehicles if that would result in a vehicle being taken off the road. He specifically asserted that management explicitly told staff not to report defects that would result in a vehicle being put out of action. He claimed that he experienced pain on one occasion when his seat “bottomed out” and complained about it at a pre-start meeting.

Decision

Reasons for decision

I place on record my appreciation to counsel for both the Applicant and Respondent for their assistance, professionalism and the clarity of their submissions. In particular, I record my appreciation to Ms Hewson of Counsel who was only engaged at short notice prior to the hearing, but nevertheless was able to master her brief and assisted the Tribunal in the discharge of its duties.Decision The decision under review is set aside. The Applicant is entitled to compensation pursuant to s 14 of the Act, and the matter is remitted to the Respondent to calculate the quantum of compensation.

Ratio Decidendi

Legal Principle Established

The Applicant testified on 12 December 2016 that he still has back pain, but this varies from day to day. He said that he has not been able to return to driving road trains (which is consistent with the opinion of Dr Campbell – Exhibit 5 p.5) but has found work as an Uber driver and drives 30 or more hours per week.ConsiderationIntroduction The task required of the Tribunal was, as previously stated, set out helpfully and precisely by the High Court in May. French CJ, Kiefel, Nettle and Gordon JJ said ([49] – [53]):“[49] It is against that background that the Act requires the tribunal of fact to give consideration to ‘the precise evidence, on a fact by fact basis, …accepted at trial’ and then to ask certain questions in order to determine whether an employee is suffering a ‘disease’ or an ‘injury (other than a disease)’.[50] First, does the evidence amount, relevantly, to something that can be described as an ‘ailment’, being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee’s employment with the Commonwealth?[51] If the answer to both of those questions is ‘Yes’, there is a ‘disease’ within par (a) of the definition of ‘injury’. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is ‘No’.[52] If there is not a ‘disease’ with par (a) of the definition of ‘injury’, the tribunal of fact next inquires whether there is an ‘injury (other than a disease)’ within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental ‘injury’ (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an ‘injury (other than a disease)’. The language of judgments should not ‘be applied literally to facts without further consideration of what is conveyed by the reasoning’ in the cases from which it is derived, or without regard to the text and scheme of the Act’.[53] If there be an ‘injury’ in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee’s employment by the Commonwealth? If that question is answered ‘Yes’, there is an ‘injury (other than a disease)’ within par (b) of the definition of ‘injury’ in s 4(1) of the Act. In some circumstances, if the answer is ‘No’, it may be necessary to ask whether the case is one involving aggravation of an injury…”Was the Applicant’s condition an ailment which was contributed to, to a significant degree, by the Applicant’s employment?