Scully and BIS INDUSTRIES LTD (Compensation)

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 pain, but did not give it too much thought because of other workplace incidents involving racial vilification – Exhibit 7, Witness Statement of Grant William Scully at paras 8 and 10.
In his Workers’ Compensation Claim Form, the Applicant gave the following account of what he was doing when he was injured (Exhibit 1 T3 p.11):
“I sat down for breakfast, then I couldn’t stand up, I did after a few attempts I then walked back to my room. I then attended a meeting about 1 Hour later with Bis Management when I went to stand up after the meeting I couldn’t stand, I was transported by wheel chair to receive treatment.”
More detail is provided in the Applicant’s Witness Statement (para 11):
“On 21 October 2014, I was asked to attend an onsite meeting with the HR Management… At the conclusion of the meeting I tried to stand up from the chair I was sitting and noted immediate onset of abdominal and lower back pain. I was not able to walk or stand independently without assistance. I was taken to the onsite medics and was given a muscle relaxant. Although the back pain came about on the 21 October 2015 (sic), I was suffering from intermittent back pain as result of operating heavy vehicles on rough services where jarring, bouncing, jolting occur constantly over a shift, however because of the other issues happening at the time I just pushed along and keep working.”
On 22 October 2014 the Applicant was treated by Dr Catherine Nixon, a General Practitioner, and prescribed Panadeine Forte and Valium, and referred for an MRI.
The Applicant lodged an Incident Report on 29 October 2014 and on the same day lodged his Worker’s Compensation Claim Form.
The Respondent is licensed as a self-insurer for its workers’ compensation claims under the Comcare Scheme. The Respondent is empowered to accept liability to pay compensation and other amounts and to manage claims – ss. 108 – 108C of the Act. The High Court has held that this licensing scheme is within the corporations power and a valid law of the Commonwealth – Attorney-General (Victoria) v Commonwealth (2007) 230 CLR 369.
On 3 December 2014 Ms Catherine Crampton-Smith, Claims Advisor, on behalf of the Respondent, determined not to pay compensation to the Applicant under s 14 of the Act – Exhibit 1 T30 p.472. The reasons adduced for rejecting the Applicant’s claim are as follows (at p.475):
“20…There is no evidence to indicate Mr Scully had reported concerns linked to the seating in his truck or that this was causing jarring to his back. I have reviewed Hazard Reports in the month leading up to the onset of symptoms, however he did not raise concerns about the seating or report this mechanism of injury to Dr Nixon following the initial onset of symptoms. He was unable to be specific as to the time interval from using a new seat to the onset of his symptoms and had not operated a vehicle for 24 hours prior to the onset of his pain.
21. By his own account, Mr Scully had no symptoms prior to standing up at breakfast on 21 October 2014 and the available evidence suggests it was this activity that gave rise to the exacerbation. Whilst he developed symptoms during an interval in an overall period of work, his mere presence is not what caused the injury to occur it was the activity of standing up which is something he would have done irrespective of being at a place for the purpose of his employment.
22. Having regard to the available evidence, I have not been able to establish that Mr Scully has suffered an injury arising out of, or in the course of his employment with Bis Industries.”
The Applicant sought reconsideration of the determination pursuant to s 62 of the Act. On 28 May 2015 the decision under review was affirmed. In reaching this conclusion, the decision-maker, Ms Sharon Coleman on behalf of the Respondent, made some key findings.
The first finding was as follows (Exhibit 1 T41 p. 495):
“20. Section 6 of the SRC Act provides the circumstances under which an injury is found to have arisen out of, or in the course of employment. In reviewing the matters listed in section 6 of the SRC Act I agree with the primary decision maker that the claimant did not sustain an injury that arose out of, or in the course of, employment with Bis Industries.
21. There is no suggestion that the claimant was performing any activity directly related to his duties as an employee of Bis Industries when he experienced the onset of low back symptoms. The onset of symptoms clearly arose during an interval in an overall period of work, noting that the claimant had been stood down from duties from 6:00am on 20 October 2014 due to HR/disciplinary matters, and had not therefore performed any duties as part of his employment with Bis Industries for at least 24 hours prior to the onset of symptoms.
22. I am therefore satisfied that section 5A of the SRC Act is not relevant to the assessment of the liability to pay compensation under the SRC Act.”
The second finding was explained as follows (p.496):
“27. Whilst it has been asserted in the reconsideration request that the claimant reported issues with the seating in the trucks and that he attributed this to the onset of symptoms, it is clear that at no time did the claimant make any report to Bis Industries of issues or concerns with the seating, yet the claimant had lodged other hazard reports indicating that he was well familiar with the process of reporting issues. As such I do not consider that the claimant had any perceived issues with the seating in the truck until some time after the onset of symptoms, and which may have been influenced in part by the fact of the claimant being stood down from employment pending a HR investigation.
28. I have noted the start up log entries that the claimant’s legal representatives point to as support for the claimant’s assertion that there were problems with the trucks, however I don’t believe these to be strong support of the claimant’s specific exposure. Whilst other employees have noted issues with the trucks, there is no evidence that the clamant made any such complaints to management, or information provided as to what if any corrective actions ensued from such reports.
29. It is clear that the claimant was predisposed to the development of symptoms in his lumbar spine as a consequence of the pre-existing degenerative changes noted in the MRI scan of 26 October 2014. Given the clear break in time between the claimant last working and the onset of symptoms, I am not convinced that employment significantly contributed to the onset of symptoms on 21 October 2014, which may well represent the natural progression of the underlying degenerative disease.
30. The claimant’s legal representatives suggest that if not an injury, the claimant suffered an aggravation of a disease, and as such section 5B of the SRC Act is satisfied. Having regard to the matters noted above I do not consider that it can be established that the claimant suffered an aggravation of his pre-existing degenerative condition of the lumbar spine, that has been contributed to, to a significant degree, by employment by Bis Industries.”
On 13 July 2015 the Applicant lodged an Application for Review with the Tribunal – Exhibit 1 T42.
The Applicant contends (Outline of Submissions of the Applicant (OSA) para 7) that he suffered an aggravation of an ailment (multisegmental disc degeneration and severe left and moderate right foraminal L5 root entrapment) and therefore suffered an aggravation of a disease, constituting an injury pursuant to s 5A(1)(a) of the Act. It is further contended that this was contributed to a significant degree by his employment, which involved jarring and jolting to his lower back from driving road trains, including those with faulty seats.
Alternatively, the Applicant contends that he suffered an injury as defined in s 5A(1)(b) of the Act.
The Respondent contends (Respondent’s Submissions in Reply paras 4 - 6) that the Applicant did not suffer an injury at all as there was no incident, and to the extent that the Applicant had an ailment, it was an underlying disease (degenerative disc disease) that was not contributed to, to a significant degree, by the Applicant’s employment. Further, it is also contended that even if the Tribunal is satisfied that what happened on 21 October 2014 amounted to an injury from the “resultant effect of an incident”, it did not arise out of, or in the course of, the Applicant’s employment.
This matter was set down for hearing over two days: 12-13 December 2016. The Applicant was represented by Ms Jennifer Hewson of Counsel and the Respondent by Mr Steven Whybrow of Counsel. The Applicant appeared and gave evidence and was cross-examined.
The Statutory Scheme
Subsection 14(1) of the Act provides that Comcare (or in this instance a licensed self-insurer) is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
It is accepted that at the relevant time the Applicant was an employee of the Respondent.
“Injury” is defined by section 5A to mean:
“(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’’
The section then proceeds to deal with an exception where the disease, injury or aggravation was suffered as a result of reasonable administrative action, which exception is not of relevance to this matter.
“Disease” is defined in s 5B. Subsection (1) provides that disease means either (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. Subsection (3) provides that a “significant degree” means a degree that is substantially more than material.
Ms Hewson helpfully drew the Tribunal’s attention to the explanation of the above provisions by the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016); 331 ALR 369 at [41] – [56]. The Tribunal has attempted to apply the principles expounded by the Court in those paragraphs in this determination.
Jurisdiction
The Applicant contends (OSA p.3) that the Tribunal’s jurisdiction is limited to the determination of liability under s 14. This is so because the Respondent has not made a reviewable decision with respect to ss 16 and 19, and, consequently, the Tribunal has no jurisdiction to address these matters. The Applicant also contends that the Tribunal is unable to impose time limitations in relation to the Applicant’s incapacity and medical treatment, should the Tribunal find liability for compensation under s 14.
The submission of the Applicant is undoubtedly correct. Reliance can be placed on the decision of the Tribunal in Re Liu and Comcare [2004] AATA 617; 79 ALD 119 and that of the Federal Court in Plumb v Comcare (1992) 39 FCR 236 as supporting this proposition.
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.
A distinction has to be drawn in this matter between the reporting of “hazards” and reporting of vehicle defects. Hazard reports concerned problems with the roads and natural hazards and the likes. For example, Mr Cooksey stated that the kind of hazards he reported were matters such as rocks on the road and dust (para 12). This is contrasted with the pre-start reports which are designed to focus on defects with the asset being operated that day.
In the Applicant’s Statement of Issues the following information was provided regarding the Applicant’s reporting of the faulty truck seating (para 6):
“6. The Applicant also formally recorded these hazardous risks in the Pre-Start Checks/Logs of the trucks he predominately drove, namely RT 126 and RT 129, as follows:
RT 126
(i)Entry 19 June 2014 noted vibration between 30-35 kilometres per hour;
(ii)Entry 5 September 2014 noted two broken leaf springs;
(iii)Entry 6 September 2014 noted two broken leaf springs;
(iv)Entry 10 September 2014 noted ‘seat no good’;
(v)Entry 21 September 2014 noted steering was hard and referred to a problem with the seat;
(vi)Entry 24 September 2014 noted three flat tyres;
(vii)Entry undated noted ‘drivers side seat slide stiff’;
RT 129
(i)Entry 24 April 2014 noted ‘driver’s seat base slides uncontrollably’;
(ii)Entry 14 July 2014 noted ‘drive like sitting on milk crate. Solid, no movement’;
(iii)Entry 24 July 2014 noted A trailer had two broken springs and dolly two broken springs;
(iv)Entry 2 August 2014 noted A trailer had two broken springs;
(v)Entry 13, 14, 15, 16 & 17 August noted first trailer had two main springs broken;
(vi)Entry 23 August 2014 noted ‘drive seat ridged, no sliding base’;
(vii)Entry 24 August 2014 noted a fault in the seat and reported ‘sliding base seat’;
(viii)Entry 26 August 2014 noted ‘driver seat need new shock absorber’;
(ix)Entry 4 September 2014 noted ‘no air pressure for driver’s seat’;
(x)Entry 15 September 2014 noted ‘truck front end bounces’;
(xi)Entry 17 September 2014 noted ‘shocks right side front end bounces’;
(xii)Entry 18,19, 20, 21. 22 & 23 September 2014 noted ‘prime mover shocks right side front end bounces’;
(xiii)Entry 23 September 2014 noted there were two broken springs on a trailer and two broken springs on dolly.
(xiv)Entry 18 & 19 October 2014 noted ‘front shocks right side bouncing’; and
(xv)Entry 21 October 2014 noted ‘front shocks need repairing.”

In fact that Applicant did not record these hazardous risks, as will be explained below; and in previous correspondence the solicitors for the Applicant did not assert this, but correctly noted that other drivers of RT 126 and RT 129 had reported these risks – Exhibit 1 T39 p.487.
The Respondent prepared for the hearing three Virtual Operational Insight Control Environment (VOICE) Reports, which were admitted into evidence. The VOICE Preliminary Data Report of 11 September was admitted as Exhibit 2, that of 20 January 2016 as Exhibit 3 and, finally, that of 29 April 2016 as Exhibit 4. The accuracy of these reports was not contested.
The VOICE Reports record that the Applicant drove 14 different vehicles during his employment with the Respondent, and nine during his last three months of employment: PM 1073 (1), RT 126 (7), RT 128 (1), RT 129 (1), RT 131 (1), RT 133(2), RT 135 (1), RT 136 (45), RT 138 (1) and RT 141 (3) – Respondent’s Statement of Facts, Issues and Contentions (RSFIC) para 22. Accordingly, the Applicant drove the vast majority of his time in RT 136 (45 times) and RT 126 (seven times).
During that same three month period, the VOICE Reports indicate that seat faults were repaired in RT 126, 128, 129 and 141, but not RT 136. A perusal of Exhibit 4 indicates that there were a number of complaints by road train operators about seating issues. It appears that one operator complained of the seating in RT 131 on 11 July 2014 and two complained of the seating in RT 128 on 10 January and 16 June 2014. None of the complaints would appear to have been made by the Applicant and none were in relation to RT 136, the vehicle most often used by the Applicant.
The Applicant drove RT 126 in his last three months of employment (11, 20, 21, 22 July and 10, 18 August), but not after 18 August 2014.
There is no reported instance of the Applicant advising, in writing, of a faulty seat prior to his claimed injury.
Exhibit 1 T7 pp. 45 - 426 comprises 381 pages of Bis Industries Truck and Power Trailer Pre-start Check Forms. These are the forms required to be completed by day and night shift drivers before vehicles can be operated. They are designed to highlight faults that require notification, and, if necessary, for the fault to be rectified, before the vehicle can be used.
Many of these forms related to the vehicles used by the Applicant on various days, and highlight what faults were notified by the Applicant during his employment. I outline below the forms that the Applicant completed in which he notified of vehicle faults. They are not in chronological sequence but in line with the pages in the T documents (I have not corrected spelling errors, and the information outlined is as set out by the Applicant:
Page               Date              Vehicle          Comment
46                  24.9.14           RT129            Trailer Braking Poor When Loaded.
4711.08.14         RT126            Engine Oil Leeks from both engines. Vertical
tipping rams Leeking T166
PT165 engaging while RT126 is in neutral
4921.07.14         RT126            B – Trailer 166 – Cracks in Weilds on Ribs.
Repairs to RT 126 PM – Windscreen Wiper Arm
50                  21.04.14         RT126            Tipping fault A-Trailer B-Trailer 166 Has
Cracks in Ribs PT 165 Eng Oil Leeks
51                  17.08.14         RT126            Left hand HID Replaced. Eng Oil Leeks No  Anti-Slip on Fuel Tank
52                  18.08.14         RT126            Eng Oil Leeks
As previously set out in [34], it is contended that the Applicant formally recorded hazardous risks in various Pre-Start Checks/Logs. Seven entries are recorded for RT 126 and 15 for RT 129.
First, it is claimed that the Applicant recorded on 24 April 2014 for RT 129, “driver’s seat base slides uncontrollably”. A perusal of that document (Exhibit 1 T7 p.204) indicates that the Applicant did not drive that vehicle that day. Second, the same is true of the entries of 14 July 2014 (p.205), 24 July (p.206), 2 August (p. 207), 13 August (p.208), 14 August (p.209), 15 August (p.210), 16 August (p.211), 17 August (p.212). 23 August (p.213), 24 August (p.214), 26 August (p.215), 4 September (p.216), 15 September (p.217), 17 September (p.218), 18 September (p. 219), 19 September (p.220), 20 September (p.221), 21 September (p.222), 22 September (p.223), 23 September (pp. 224-225), 18 October (p.226) 19 October (p.227 and 21 October (p.228). The same is true of the complaints relating to RT 126, but I will not deal with each of these separately. However, during cross-examination of the Applicant, he stated that he did not fill out the report of 10 September 2014 in relation to RT 126 where the comment was made “seat no good” (p.200).
In short, the suggestion that the Applicant had been a prolific notifier of seat problems with the vehicles he was operating has no foundation in fact, and is contrary to the oral testimony he gave at the hearing.
The evidence demonstrates that the Applicant did notify his employer of problems with vehicles he was operating, but he did not notify his employer, or, if he did, then not formally, about the alleged spinal issues he was suffering from seating malfunction.
The Pre-Start Check Form is divided into Categories A, B and C. Category A Faults are those which “must be rectified before vehicle can be used – inform supervisor asap”. Nine types of faults are specified under Category A. The fourth of those faults is “Check seat/seat belt operation and condition”. In short the condition of the driver’s seat and seat belt was a matter of utmost importance and drivers were required to report if there were any issues with either. There is no record of the Applicant having marked in the requisite box any issues with his seat or seat belt in any of the vehicles he was driving. On the contrary he marked on all of the relevant forms that there was not an issue with either the seat or seat belt with any of the vehicles he was operating. In the relevant column the driver had to mark with a tick (as in positive) or a cross or other mark (as in negative). In the T documents presented to the Tribunal the Applicant has marked the requisite box in the positive (e.g. pp. 45 – 52).
The Site Manager at the Cloudbreak Mine at the relevant time was Mark Simon Wells. The Respondent tendered a Witness Statement of Mr Wells dated 5 December 2015 (Exhibit 9) in which he dealt with both the 21 October 2014 meeting with the Applicant as well as a truck seat trial which occurred around this time. As to the latter, he stated:
“31. I have been asked to comment on the seat trial we had in place around the time of Grant’s injury.
32. The seats that we used prior to the seat trial were the stock seats that came with the vehicle.
33. There were no issues with the old seats.
34. The old seats had good lumbar support and heaps of cushioning.
35. They were air operated, and drivers had to adjust them to suit their height and weight when they got into the vehicle (Green Zone).
36. We contacted the manufacturer to build a new type of seat.
37. When we got the prototype, we set it up in the crib room for about two weeks so that people could test it.
38. Once everyone had made their comments and we were happy with it, we fitted the new seat in a truck and asked as many people as possible to test it.
39. No one raised any issues or hazard reports about the seat.”
Mr Wells also gave evidence on 13 December 2016. He testified that there were approximately 160-165 employees at the Cloudbreak Mine, and of those approximately 50 were driver operators. Every morning and evening, before a shift, there was a pre-start meeting which was usually 15 to 25 minutes in duration. All drivers were required to attend such meetings. At that meeting there was usually a de-brief on what was going to happen that day/evening as well as discussion about safety procedures. In particular, according to Mr Wells, all vehicle defects and other hazards were to be reported.
Mr Wells denied that drivers were told not to report defects/hazards or that there was any covert pressure placed on them not to do so. He testified that there were approximately 22 trucks at the site, which was a surplus of five trucks. At any one time, an average of three trucks were under repair. The Respondent expended approximately $1 million per month on repairs and maintenance.
Mr Wells denied that there was any direction given to staff not to report faults, or to not report if they were injured, lest their employment was terminated. He specifically denied that there was any direction not to report problems with truck seats: at any time there were approximately 5-6 seats in stock to deal with any defect issues. A replacement truck seat cost approximately $2,750.
Mr Wells testified that if a seat was adjusted to the correct position (the Green Zone) it would not “bottom out”, however it was possible that a seat would “bottom out” if it was not properly adjusted by the driver.
He denied that drivers were required to report 10 hazards per fortnight, but agreed that they were encouraged to report hazards. This state of affairs is supported by Mr Cooksey, who sated in his Outline of Evidence (Exhibit 12) that there “was no formal quota for hazards” (para 9), but that Mr Wells “encouraged us to try to lodge two hazard reports per swing” (para 10). The rationale for this being “to make sure we were paying attended (sic) to what was going on around us and keeping safety front of mind” (para 11).
The road between Cloudbreak and Christmas Creek was dirt, and there were two “graders” engaged in levelling and repairing dirt roads. Under cross-examination he stated that potholes and corrugation could take up to three days to be repaired and truck operators were required to drive over rough surfaces.
Ms Hewson pointed out during cross-examination, that in the period 15-16 October 2014 the Applicant was driving RT 141 (Exhibit 3 “Assets marked against Grant Scully”), but that in that very same time period, according to Exhibit 4 (Work orders relating to Seats for Cloudbreak fleet), that vehicle had been reported as having a faulty seat and a work order had been placed. The seat was reported as not lifting or going down – Exhibit 10, Maintenance History, PM 141. She also highlighted that in the period 25 September 2014 until 11 November 2014 RT 141 was reported as having no arm rests. The Applicant operated RT 141 on three shifts during that period – 10, 15 and 16 October 2014. Mr Wells agreed that was the case.
Oral evidence was also given by Mr Cooksey, who worked at Cloudbreak as a road train operator for two years until he was made redundant when the site closed (Exhibit 12 para 4). Overall he has worked for the Respondent for five years and currently is employed by the Respondent as a road train operator at Murrin Murrin (para 3).
He testified that he had driven a truck with a faulty seat for half a shift and had driven over rough roads, including those with potholes and corrugated surfaces.
He testified that there were no difficulties in reporting defects with assets and that he had experienced no problems with the new seats.
In his Outline of Evidence, Mr Cooksey dealt at some length with reporting hazards, condition of roads and faulty seats. Set out below are some of the key information contained therein:
“14. I have been asked about the condition of the roads on site.
15. The roads were dirt roads.
16. They were wide enough to have dump trucks and road trains on them.
17. The supervisors would do road inspections when they flew in to check the condition of the roads.
18. Bis and FMG both had graders to fix the roads if they got rough.
19. If the roads were really rough, Bis vehicles were not allowed to drive on them in case the vehicles got damaged.
20. Other times, we would be directed to drive around particular hazards, or stretches of rough road, especially if the roads were blown out due to rough weather.
21. Any issues with roads would be discussed at pre-start meetings.
22. I have worked on a number of different sites, and the roads at Cloudbreak were no different to roads on the other sites.
23. Sometimes there were potholes or damage, but drivers are instructed to drive to conditions and taught that if you see a hazard, drive slowly.
24. I have been asked if I ever felt discouraged from reporting hazards at Cloudbreak.
25. I never felt like I shouldn’t report a hazard, and I was not aware of anyone else feeling this way.
26. I have reported many hazards over my time with Bis and have never received any negative feedback for it, or been discouraged from doing it.
27. I understand that Grant says his seat was faulty.
28. I have driven a truck with a faulty seat before.
29. I complained about the seat to my supervisor during my shift and was told to take the truck into the workshop so they could fix it.
30. Sometimes, when a truck is taken off the road there is a spare vehicle for you to drive.
31. Most of the time there isn’t, so you wait for your vehicle to be fixed.”
Before I outline those other issues, there is a degree of inconsistency in the Applicant’s contentions. As set out above, the Applicant contends that at the Pre-Start Meetings “employees were encouraged to verbally report any hazards or concerns” and there are then outlined numerous instances where this occurred in the Pre-Start Check/Logs of the road trains that the Applicant operated. Yet at the hearing, the Applicant testified that there was pressure on workers not to report hazards and that he and other workers operated in what could be said to be a climate of fear. In short in the written contentions it is asserted that the Respondent encouraged employees to report hazards, but in the oral testimony it was asserted that the Respondent discouraged such reporting.
As previously noted ([3]), the Applicant claimed he experienced back pain but did not focus on it too much because of other workplace issues.
It is relevant to note that the Applicant is an indigenous Australian. In the Applicant’s Statement of Issues there is an extensive account of how he was subjected to a sustained and vile campaign of racial abuse from some of his co-workers. I will not outline or quote the type of abuse the Applicant was subjected to, other than to note that it was demeaning and extremely objectionable.
The Applicant complained to management, and this complaint was referred by the Respondent to HR for an internal investigation. During the investigation both the Applicant and certain co-workers were stood down on full pay. Consequently the last shift that the Applicant worked was the evening shift of 18 October 2014 – Exhibit 1 T9 p.428, T11 p.432 (although it may have been on 19 October concluding at 6am on 20 October – T29 p. 470: the evidence is unclear).
On 21 October 2014 the Applicant was requested to attend an onsite meeting with HR to provide his statement of events.
The Applicant gave Dr Catherine Nixon the following account of the evening of 20 October and the morning of 21 October 2014 (Exhibit 1 T9 p.428):
“No pain overnight and woke well.
Went for breakfast sat down to enjoy his coffee and when he stood up he could not stand.”
Subsequently the Applicant attended the meeting with HR, and, as outlined above, experienced pain and was unable to stand at the conclusion of the meeting. In an email to Dr Nixon from Jessica Pereira, a Bis Industries Rehabilitation Advisor, there is the following account of this meeting (Exhibit 1 T10 p.430):
“Emma (RTW Coordinator) has reported Mark (Site Manager) and Shane (Operations Manager) advised:
·They were interviewing Grant in camp yesterday (21/10/14) about a HR investigation being conducted. This went for about an hour.
·About half way through Grant appeared to be in some sort of discomfort as he kept adjusting himself in the seat he was sitting in.
·They asked what the problem was and he said it had nothing to do with work – he had woken up fine, sat down to have breakfast and when he stood up he felt pressure and pain in his lower back.
·They asked if he was ok to continue and he said it was fine.
·At the end of the interview Grant went to stand up and was obviously in a great deal of pain and could not perform the motion from sitting to standing.
·Mark stayed with him while Shane went to the medic to make him come back to help. The medic came back and made a quick assessment of Grant before returning to the medic’s office and coming back with a wheelchair and the site physio.
·They then managed to get Grant into the wheelchair and took him to the medic to conduct a thorough examination,
·The medic returned and said Grant was in a fair amount of pain which was muscular.
·They gave him an injection for the pain and asked that a flight to Perth be booked.”
The Applicant testified at the hearing on 12 December 2016 that he experienced extreme pain when he attempted to stand up at the end of the meeting. He said that pain was akin to “a horse kicking me in the guts”. He stated that he couldn’t walk, suffered muscle spasms and for some time thereafter his legs wouldn’t work properly.
Dr Nixon examined the Applicant in Perth on 22 October 2014. She noted that he was suffering from lower back pain with the pain at 2-3/10 if resting but 10/10 with any movement. The pain was sharp, but settled within seconds once rested. Further, although he could walk for 20 minutes, he could not bend forward. She noted that he previously worked for Trucks Australia and in the 1990s had pulled lower back muscles while vacuuming. He had not had a back injury since, but had never sought medical assistance and never recalled having a back X-ray. On 21 October he had an injection of muscle relaxant and was ingesting Panadeine Forte and Nurofen. Dr Nixon opined that the Applicant appeared to have significant muscle spasms and needed a significant reduction of pain. She prescribed Valium, Panadeine Forte and Voltaren – Exhibit 1 T9 pp. 428-429.
Dr Nixon referred the Applicant to Dr Brendan Adler, Consultant Radiologist, who performed an MRI on 26 October 2014. Dr Adler made the following findings (Exhibit 1 T13 p. 434):
“The lumbar alignment is within normal limits.
There is disc degeneration involving the lowest four mobile segments.
The lower thoracic cord, conus and cauda equina are normal.
No pars defect or marrow infiltration is demonstrated.
At L2/3 there is disc annulus bulge with no focal disc herniation, canal stenosis or radicular entrapment.
At L3/4 there is further disc annulus bulge is evident at L4/5, again without disc extrusion or neural compromise.
Further degenerative disc annulus bulge is evident at L4/5, against without disc extrusion or neutral compromise.
At L5/S1 there is severe disc degeneration with disc height loss and vacuum phenomenon. There is prominent broad-based disc annulus bulge although without local disc extrusion. There is, however, severe left foraminal stenosis and compression of the existing left L5 root.
Moderate right L5 foraminal compromise is evident.
The facet articulations are within normal limits.”
70.Dr Adler made the following comments based on the above findings (p.434):
“1. Multisegmental disc degeneration maximal at L5/S1 may be the most relevant lesion.
2. Severe left and moderate right foraminal L5 root entrapment.”
On the afternoon of 27 October 2014 the Applicant was again examined by Dr Nixon who provided a Progress Medical Certificate (Exhibit 1 T15 pp 437-438) in the following terms:
“MRI
1. Multisegmental disc degeneration maximal at L5/S1
2. Severe left and moderate right L5 root entrapment due to foraminal stenosis
Current symptoms: pain level zero but only due to the medication
Able to sleep very well at night
Able to do all movements
Very keen to go to work
O/E: Moving freely and has full pain and free ROM
Knee and ankle reflexes normal
Lower limb power 5/5
Slump test negative
It would appear that he may have had pain in the L5/S1 disc region
There is no clinical evidence that the foraminal stenosis is causing nerve compression – at this point in time I believe that this is an incidental finding (but of course I am not a specialist)
He want (sic) to return to work but we need to reduce his medications and even then, being on tramadol he cannot be around machinery or workshops
I also recommend a Pilates programme to reduce the risk of future back injury.”

On 29 October 2014 the Applicant met with representatives of the Respondent to discuss the next steps in relation to his lower back condition. At the conclusion of the meeting the Applicant decided that he wished to apply for workers’ compensation, and it was agreed that the Respondent would book him a flight back to Perth later that afternoon - Exhibit 1 T18 p. 443.
The next day one of the persons present at that meeting (Toni Brockwell) sent an email to the other participants as well as other employees of the Respondent. The relevant parts are as follows (Exhibit 1 T19 p.444):
“As you are aware, we had a discussion with Grant yesterday in regards to his EIP reaching financial limitation and spoke about options that he was able to take.
Grant chose that he would like to submit for workers compensation at the time. Due to his drowsiness he was unable to complete all of the paperwork on his own, and doesn’t have access to a printer whilst in Perth to scan these documents back to us. Grant gave permission to myself complete the paper work on his behalf, given we had all information on file for the sections that he did not complete.”
The Claim for Workers’ Compensation (Exhibit 1 T3 pp. 5 – 25) is the document referred to by Ms. Brockwell.
On his return to Perth the Applicant was again examined by Dr Nixon. In her Progress Medical Certificate of 31 October 2014 she noted that the Applicant had lost his script for Endone and had not taken that drug since 29 October, and had not taken Valium or Panadeine forte “for some time”. Dr Nixon made the following observations (Exhibit 1 T20 p. 445):
“Current symptoms: lower back pain persists a (sic) 5/10
Sleeps on the medications but even during the day
Knee and ankle reflexes brisk and normal
medication; no medication today
Yesterday tramal 3 tablets yesterday – reduces the pain but makes him sleepy”
Dr Nixon was of the view that the Applicant was fit for a restricted return to work from that day but limited to administrative duties with no lifting of weights above 5 kg.
Following the lodgement of the Applicant’s workers’ compensation claim, Bis Industries Workers Compensation Insurance Services arranged for the Applicant to be examined by an independent Orthopaedic Surgeon, Dr Nicholas Anastas on 24 November 2014, and notified the Applicant in a letter dated 10 November 2014 – Exhibit 1 T23 p.450.
On 11 November 2014 the Applicant was examined again by Dr Nixon. Her report indicates that his medical condition was, at that time, improving. She noted that “he is feeling much better” and was “able to walk 500 metres”. While “initial back pain” persisted he was “having Chinese management and acupuncture which he finds very beneficial”. She opined that he able to “do seated or light workshop duties”, was able to “stand and walk around as long as he can sit down after every 15 minutes” and was “able to lift 8kg with left arm and 5kg with right arm.” – Exhibit 1 T24 p.456.
Dr Nixon again examined the Applicant on 21 November 2014 and again there were improvements in his condition. Dr Nixon reported that he could “move freely but still some tightness in the lower back. Can sit squat bend. Can flex forward to reach his toes. (A)ble to lift the 8 kg now” – Exhibit 1 T26 p.460.
The Applicant was examined by Dr Anastas on 24 November 2014 and he prepared a medical report on that day (Exhibit 1 T27 p.461). After setting out at some length the Applicant’s medical history, Dr Anastas provided the following diagnosis (at pp 465-466):
”1. Imaging on the 26. October 2014 has demonstrated pre-21^st. October 2014 degenerative changes of this gentleman’s lumbar spine.
2. He advises that his symptoms occurred after a trail of using different driver’s seats which were soft and springy causing some jarring to his back. He further advises that the back rest had a lumbar support, and the top inclined away from his shoulders. He used the trial seat on different occasions, but could not be specific as to the time interval from using a new seat to the onset of symptoms. By the mechanism of onset of symptoms he describes, it is likely that this gentleman has sustained a jarring exacerbation to his low back area.
3. In apportioning blame for the onset of his symptoms and need for treatment, I attribute 50% as being due to pre-21^st. October 2014 degenerative changes and I attribute 50% of his onset of symptoms and need for treatment as being due to the jarring incidents at work.
4. He does advise of pain in the low back area with simulated rotation of his spine and this is an inconsistency which can, at times, suggest symptom magnification and that the incapacity is not as great as the examinee perceives.
5. The exacerbation that this gentleman sustained to his lumbar spine,, as a result of using a different driver’s seat as a trial in October 2014, will in my view completely resolve within three months from the 21^st. October 2014. Subsequent to three months from the 21^st. October 2014, I attribute any of his symptoms, incapacity, need for treatment and impairment as being totally due to the natural progression of pre-21^st. October 2014 degenerative changes and unrelated to his work.
6. He does not have any lower limb radiculopathy, and as such this is in agreement with Dr. Catherine Nixon’s comment on the WorkCover Workers’ Compensation Progress Medical Certificate of the 27^th. October where she states ‘There is no clinical evidence that the foraminal stenosis is causing nerve compression’.”
Later in his report Dr Anastas opined that the Applicant had suffered an aggravation to a pre-existing condition, namely the degeneration of his lumbar spine (p.466). However, he was also of the opinion that this aggravation “should completely resolve within three months from the 21^st. October 2014.” (p.467).
Dr Anastas was asked to review his file by the Respondent in May 2016 having been briefed with updated information, including medical reports, the VOICE Reports and the Witness Statements of the Applicant and Mark Wells. In his report dated 24 May 2016 (Exhibit 11), Dr Anastas advised that “I have not seen anything to have me change any aspect in my report of the 24. November 2014.”
Dr Anastas gave evidence by telephone on 13 December 2016. He testified that after the age of 40 most persons experience spinal degeneration, but the rate of degeneration differs from person to person. The Applicant’s spinal degeneration, in his opinion, was within the range one would expect, or perhaps a little more.
He confirmed that his diagnosis of the onset of the symptoms was based on what the Applicant told him. He relied on the veracity of the Applicant’s account of the seating in the road trains and the degree of jarring etc that he experienced. During cross-examination he testified that the extent of the jarring of the Applicant’s back was important for the formulation of his opinion. If the account that the Applicant gave was not an accurate account of what had occurred, Dr Anastas said it would negate his whole report.
Dr Anastas stated that a faulty truck seat could cause a back injury, and jarring could exacerbate a pre-existing condition.
The Applicant was next examined by Dr Nixon on 4 December 2014 (Exhibit 1 T31 p.476). Dr Nixon observed that the Applicant had increased tightness in his back, experienced pain with flexing forward whilst sitting, but was still able to lift 20 kg (but not repetitively) and was able to walk one kilometre. She advised that he was “able to do workshop and admin duties and able to drive a vehicle including a truck as long as he can rest an(sic) do his stretches every one hour.”
The Applicant was examined by Dr Scott Campbell, Neurosurgeon, on 30 October 2015 and a medical report was prepared on the same day – Exhibit 5.
Dr Campbell first outlined his clinical findings (p.4):
“Clinical examination on 30 October 2015 revealed a restricted range of movement of the lumbar spine with flexion and extension. There was asymmetry of movements. There was tenderness and guarding bilaterally. The lower limb power, reflexes and sensation were normal. He sat is discomfort. He had difficulty getting in and out of the examination chair. He walked with a slow and cautious gait."
Dr Campbell’s diagnosis of the Applicant’s condition was (p.4) “a musculoskeletal injury lumbar spine.” In his opinion the injury occurred “whilst standing from the sitting position at work on 21 October 2014.” As to the cause of the injury, Dr Campbell was less certain stating it was “undetermined. There was no specific precipitating event. Under usual circumstances, standing from the sitting position would not cause a lower back complaint unless there was a significant underlying predisposing problem.”
However, Dr Campbell went on to opine (p.4):
“If Mr Scully did not sustain the lower back injury whilst standing from the sitting position on 21 October 2014, it is very likely he would have sustained the same injury soon after performing similar light manual tasks.”
In conclusion Dr Campbell stated (p.5):
“The lower back injury was sustained at work whilst Mr Scully stood from a chair after a meeting. However, the activity performed was trivial in nature and would not have caused a lower back injury unless there was a significant pre-existing predisposition. Had the work accident not occurred, it is likely Mr Scully would have sustained a similar injury in the not too distant future.”
Dr Campbell was later provided with the documents admitted into evidence in these proceedings and marked as Exhibit 1, and was asked a series of questions by the solicitors for the Applicant. Question 3 which was posed to him was as follows (Exhibit 6 pp.1-2):
“3. On the balance of probabilities as distinct from probabilities, is the condition suffered by the employee related to;
(a) Employment with BIS Industry
(b) A pre-existing, congenital, constitutional or underlying condition,
(c) An aggravation, or recurrence of a pre-existing condition and if so have the effects of the aggravation, acceleration or recurrence ceased. If not ceased, when do you consider the effects would cease?”.
In response, Campbell said:
“Most likely b. as there was no precipitating event and no lower back pain in the run up the onset of symptoms which might suggest driving the truck was causing the injury to the lumbar spine.”
Dr Campbell gave oral evidence on 12 December 2016, which was consistent with his medical reports. He re-iterated that in his opinion the Applicant suffered an opportunistic injury when he stood up on 21 October 2014 with spontaneous onset of pain. He opined that there was a tenuous link between the event of 21 October and the Applicant’s truck driving. Whilst he did not give a definitive diagnosis (as he could not), he thought it more likely that the events of 21 October 2014 could be categorised as a temporary aggravation of an existing condition.
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.
Consideration
Introduction
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?
The Applicant contends (OSA para 25) that the evidence of Dr Anastas and Dr Campbell supports a finding that the Applicant suffered an aggravation of an ailment, being his pre-existing degeneration of his lumbar spine, pursuant to s 5B(1)(b) of the Act. Quite correctly, the Applicant concedes that a positive finding is dependent on factual findings that his employment contributed to this aggravation to a significant degree.
The Applicant contends that the Tribunal’s consideration of this issue depends on factual findings whether he experienced jarring and pain as a result of seats bottoming out while he drove, or otherwise due to faulty seats.
The Tribunal’s attention was drawn (paras 28-29) to the fact that the Applicant drove asset RT 141 on at least three occasions in mid-October 2014 while that vehicle had been reported as having no arm rests and with a seat fault. The Applicant contends (para 30):
“Therefore, read together, these reports provide objective evidence that Mr Scully drove on a faulty seat twice in the week leading up to the onset of his symptoms on 21 October 2016.”
Reliance was placed on the evidence of Mr Cooksey that he had driven a truck with a faulty seat for half a shift and that he had regularly driven over rough and corrugated roads, often suffering jarring from rough surfaces.
The Applicant contends (para 34) that the evidence of Mr Wells and Mr Cooksey supports a finding, on the balance of probabilities, that he experienced jarring while driving trucks.
The Applicant then relies on the medical evidence of Dr Anastas and Dr Campbell. I have previously set out at length the two reports of Dr Anastas, but as for Dr Campbell, the Applicant conceded that Mr Scully did not report to him any jarring incidents or pain in the lead up to 21 October 2014 (para 42).
It was contended (para 43) that while giving Evidence in Chief, Dr Campbell changed his opinion as to the cause of his injury expressed in his report. It was contended that Dr Campbell was of the opinion that there was a strong link between Mr Scully’s work and his injury. This was irrespective of whether he was driving in a new or old seat. It was also contended that Dr Campbell was of the opinion that the jarring incidents contributed to the Applicant’s injury to a significant degree (para 45).
In conclusion the Applicant contended as follows (paras 46 – 47):
“46. It is submitted that ‘aggravation’ is synonymous with exacerbation, in the sense that the ailment is made worse or the experience of the ailment is ‘increased or intensified by an increase or intensification of symptoms’.
47. It is submitted that the objective evidence contained in the VOICE reports referred to above and the opinions of Dr Anastas and Dr Campbell support a common sense finding that Mr Scully experienced jarring while driving in a different seat in the lead up to 21 October 2014, which contributed to his aggravation to a significant degree.”
The Respondent contends (RSFIC para 28) that the Applicant’s condition is properly characterised as an ailment pursuant to s 5B of the Act, and that it was not contributed to, to a significant degree, by his employment. The Respondent relies on:
1.    Radiological evidence which indicates that the Applicant suffers from multisegmental disc degeneration, worst at L5/S1;
2.    VOICE reports which do not support the Applicant’s contention that the vehicle seats were faulty or caused any jarring or jolting of his back;
3.    The medical reports of Dr Anastas, who considered the Applicant suffers from pre-existing degenerative changes in the lumbar spine. Dr Anastas specifically stated that the Applicant’s employment had not worsened or accelerated his pre-existing degenerative condition;
4.    The medical reports of Dr Campbell who opined that the cause of the Applicant’s lumbar injury was undetermined. He considered, on the balance of probabilities, the Applicant’s condition was related to a pre-existing, congenital, constitutional or underlying condition.
It is not disputed that the Applicant suffers from multisegmental disc degeneration and severe left and moderate right foraminal root entrapment.
The first issue in dispute is whether the Applicant suffered an aggravation of this ailment that was contributed, to a significant degree, by his employment; namely the jarring and jolting of his lower back from driving road trains over rough surfaces which trucks contained faulty or inadequate seating.
There have been numerous decisions on what constitutes aggravation. I refer, however, to the following formulation by Gyles J in Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508 (at [6]/509):
“It has been well settled by a series of decisions starting from Jordan CJ’s judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abatoir Pty Ltd (1989) 167 CLR 533 and Casarotto v Australian Postal Commission (1989) 10 AAR 191, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.”
The Tribunal was presented with voluminous evidence and in making the appropriate and necessary factual findings in order that the law can be correctly applied, it has been necessary to look at the evidence as a whole and not be side-tracked by “cherry picking” snippets of evidence to support a particular proposition, but in the process, distorting the clear, and in this case, tidal flow of the evidence.
In order to find in favour of the Applicant I must be satisfied, from the evidence presented, of two things:
(a)The Applicant experienced jarring and jolting of his lower back whilst operating trucks, sometimes with defective seats; and
(b)That jarring and jolting resulted in an aggravation of his pre-existing lower back ailment.

The Applicant testified that there was covert pressure placed on workers at Cloudbreak, or to put it another way, an atmosphere created, which was not conducive to drivers reporting faults with their vehicles, if such complaints would result in the vehicles being placed off-road and at cost to the Respondent.
It was contended that, in part, this pressure or atmosphere of non-reporting resulted in the Applicant not reporting the problems he was experiencing with his seating.
Both Mr Wells and Mr Cooksey were questioned about this and both specifically rejected that there was such a policy or situation in place at Cloudbreak. Both of these persons gave oral evidence and were subject to cross-examination. I formed a positive view as to the veracity of their evidence.
The reality is that the Applicant did lodge Truck and Power Trailer Pre-start Check sheets with defects outlined – Exhibit 1 T7 pp. 46-52. Almost all of the Pre-start sheets attached in the T documents have the names of the day and night shift drivers erased as it appears the Applicant “has not completed pre starts for these assets very often” - Exhibit 1 T35 p. 480. Consequently, the documentary evidence before the Tribunal about seating problems with trucks comes exclusively, or almost exclusively, from drivers other than the Applicant.
This in itself raises an obvious point of departure from the contentions of the Applicant. If there was a culture of non-reporting of vehicle defects, why were so many defects reported by so many co-workers of the Applicant during the term of his employment?
The fact that the Applicant’s counsel and solicitors were able to highlight seating defects in particular vehicles at particular points of time, was due, in part, to the reporting of seating defects from employees of the Respondent. The irony of this is self-evident.
Another anomaly was the suggestion that there was a “quota” of reporting hazards. The evidence presented was that there was no mandated quota, but there was pressure placed on workers to report any hazards they observed whilst on duty.
Clearly, this suggests that the Respondent and its management were vigilant in ensuring that risks to employees, visitors, property owners, indigenous native title holders and others, as well as plant and equipment, were minimised and risks isolated and rectified as quickly as possible.
The evidence presented suggests that the Respondent took very seriously its due of care to its employees. There is no credible evidence that the Respondent sought to put in place a culture of non-reporting of defects. On the contrary, the uncontested evidence is that the Respondent had in place surplus plant to ensure that there was always sufficient operational plant to deal with mechanical and related health and safety issues. It would be extraordinary if this were not the case, because the risk to the Respondent, legally, financially and reputationally from operating in a substandard and hazardous manner, was and is enormous. Moreover, like any corporation paying workers’ compensation premiums, it is incontrovertibly in the interests of the Respondent to minimise the risk of accidents and injury (and therefore higher premiums) by engendering and enforcing a culture of safety and risk minimisation.
I therefore do not accept the evidence of the Applicant that he failed to report seating issues because he would have been disadvantaged had he done so.
I accept that the Applicant drove at least one vehicle which had reported seating problems. I accept that the Applicant drove RT 141 on 15 and 16 October 2014, and that on both days the vehicle had no arm rests and that on at least 15 October, and likely 16 October, had other seating issues. I therefore also accept that the Applicant was driving a vehicle with a faulty seat in the week leading up to 21 October 2014.
I also accept that the drivers of road-trains at Cloudbreak traversed difficult terrain, and regularly drove on roads that suffered from potholes and corrugation. Clearly, the Respondent, through hazard reporting and the use of heavy equipment, attempted to minimise the impact of those conditions.
The fundamental issue is whether the Applicant suffered jarring and jolting while driving trucks in the course of his work that resulted in an aggravation of his pre-existing ailment.
I am not satisfied on the basis of the evidence presented that the Applicant suffered jarring and jolting such as to aggravate his pre-existing ailment. The reasons for reaching this conclusion are as follows:
(a)There is no record of the Applicant reporting seating problems with the vehicles he was driving over a six month period;
(b)No evidence was presented of the Applicant complaining to fellow workers or to any other third person of vehicle seating problems or of jarring and jolting whilst driving;
(c)The evidence suggests the Respondent was pro-active in isolating and minimising faulty plant;
(d)No evidence has been presented of any systemic problems with either the old or new seating;
(e)The only evidence presented of seats “bottoming out” was in those instances where the driver had failed to adjust the seat properly, rather than any inherent problem or issue with the seating;
(f)Although the Applicant drove over rough terrain, the Respondent used its best endeavours to ensure that hazards were identified and resolved as quickly as possible;
(g)There was time gap between the Applicant’s final shift and the onset of the symptoms on 21 October 2014, with the Applicant suffering no pain until the morning of 21 October 2014;
(h)There is no evidence of the Applicant suffering persistent pain or discomfort over the six months period leading up to 21 October 2014;
(i)The only identifiable time that the Applicant was driving a vehicle was any seating problems was a 2 day period 15-16 October 2014; nearly one week before the symptoms of 21 October manifested themselves;
(j)There was no reported suggestion to Dr Nixon when she treated the Applicant on 22 October 2014, of any problems with jarring and jolting from driving road trains – Exhibit 1 T9 pp. 428-429.
The evidence at hand is that the Applicant drove road-trains for the Respondent for approximately six months. Up until 21 October 2014 he made no identifiable complaint about the seating in the trucks he was driving or of back pain. Any suggestion that this omission was due to a policy of the Respondent to limit risk and hazard complaints lacks a credible basis. When the symptoms described above occurred on 21 October, they manifested themselves after a break in time from when the Applicant last operated a road train. Until breakfast of 21 October 2014 the Applicant, according to his own evidence, was not suffering pain. The only time where it can be identified that the Applicant drove a vehicle with seat problems was slightly less than a week before 21 October 2014, and then for only one or two days.
Dr Anastas, when giving evidence, said that his diagnosis was based, fundamentally, on the factual circumstances given by the Applicant, particularly as they related to him trialling new truck seats. He stated clearly and without qualification, that his whole diagnosis would need to be reassessed if the factual matrix upon which his clinical diagnosis was based was not accurate, or incorrect.
Insofar as there were differences in the evidence given Mr Scully and that by Mr Wells and Mr Cooksey, I preferred the testimony of the latter gentlemen. I found their testimony convincing and consistent with the documentary evidence presented. In particular I found unconvincing the Applicant’s account of why he did not report the alleged seating problems he was experiencing. There is a difference between recollection and reconstruction; and in this instance I formed the view that some of the key evidence the Applicant gave was in the nature of reconstruction. The task the Tribunal has been presented with in this regard is similar to that described by Owen J in Bell Group (in Liq) & Ors v Westpac Banking Corporation & Ors [2008] WASC 239 ([1052] – [1053]):
“1052… I do not believe that any witness set out deliberately to lie to me. I think most witnesses did their best to present a reasonable account of events and their participation in them. The reliability of that account is, of course, a different matter. In the end, my assessment of the oral testimony was based primarily on its intrinsic reliability, rather than on any appeal to credibility in the sense of deliberate and calculated obfuscation. As I have already said, my primary port of call in assessing reliability was the contemporaneous documentation.
1053 In a case of this nature, the distinction between recollection and reconstruction is important. And it has a direct impact on reliability. There can be a tendency, with the passing of time, to meld the two. In that process, a propensity might develop, albeit innocently, to adopt a position advantageous to the case being presented.”
The Applicant’s legal representatives have presented to the Tribunal their client’s very best case from the available evidence. I have considered very carefully, and at considerable length, their submissions. However, the preponderance of evidence does not support their contentions with respect to ss 5A(1)(a) and 5B.
Accordingly, the preponderance of the evidence leads me to the conclusion, on the balance of probabilities, that the Applicant did not suffer jolting and jarring of the lower back of the type claimed, and if jolting and jarring occurred, it was of such a low degree, that it could not be said to have resulted in other than a short term aggravation of his pre-existing ailment, and not an aggravation that made his pre-existing condition worse.
Did the Applicant suffer an injury (other than a disease) pursuant to section 5A(1)(b)
It is not contested that the Applicant experienced pain and discomfort on 21 October 2014 both when he was at breakfast and then during a meeting with management resulting in his incapacity to stand up. The facts presented both about the events of that day and the immediate medical treatment he received by Dr Nixon and the MRI that was taken are uncontroversial.
Dr Campbell in his report of 30 October 2015 (Exhibit 5) diagnosed the Applicant injury as “musculoskeletal injury lumbar spine” and opined that this injury occurred “whilst standing from the sitting position at work on 21 October 2014.” As to the cause of this injury, Dr Campbell stated it was “undetermined. There was no specific precipitating event.” He went on to say: “although as the incident was trivial in nature, it is likely he would have developed his current lower back symptoms regardless.”
The Applicant made the following submission (OSA paras 50 - 51):
“50. Whilst it is accepted that the action of standing is trivial, it remains that that such an injury is appropriately considered as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, being an injury in the ‘primary’ sense of the word referred to in Kennedy Cleaning Services Pty Ltd v Petkoska (and referred to in Military Rehabilitation and Compensation Commission v May [2016] HCA 19).
51. The ‘suddenness’ of the injury is of particular use in this case supporting a finding of a physiological change, as opposed to a natural progress of an underlying disease.”
The starting point, therefore, is to ascertain if the Applicant has suffered an injury. In answering this threshold question it is helpful to refer to the recent discussion of “injury” by the High Court in May. French CJ, Kiefel, Nettle and Gordon JJ outlined the law as follows ([45] – [47]):
“[45] ‘Injury’ in par (b) is used in its ‘primary’ sense. As Glesson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if ‘something… can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word…
[46] That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an internal wall or a lesion to the brain. Each would be described as an ‘injury’ in the primary sense.
[47] However, as the Full Federal Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease… But it is the physiological change – the nature and incidents of that change – that remains central.”
The uncontested evidence is that the Applicant suffered a sudden and ascertainable, physiological change on the morning of 21 October 2014 that manifested itself in the onset of immobilising pain in the lower back, muscle spasms and an inability to stand up or walk. The diagnosis of Dr Campbell was that the Applicant suffered an opportunistic injury when attempting to stand, namely a musculoskeletal injury of the lumbar spine.
I accept, from the evidence presented, then, that the Applicant suffered an injury on 21 October 2014.
The next question which must be answered is whether the injury arose out of, or in the course of, his employment.
The Applicant drew the Tribunal’s attention (OSA para 53) to s 6 of the Act, and, in particular, to paragraph (b) which provides that an injury may be treated to have arisen out of, or in the course of, employment if it was sustained at the employee’s place of work, for the purposes of employment, or when temporarily absent from that place during an ordinary recess in employment.
The Tribunal’s attention was drawn to the decision of the High Court in Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246. The High Court carefully considered the earlier decision of Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. The joint judgment of French CJ, Hayne, Crennan and Keifel JJ, first sounded a note of warning against giving Hatzimanolis an expansive interpretation which would be contrary to the scheme and purpose of the Act. Their honours said ([8]-[11]/254-255):
“8. The respondent may be taken to draw the following from what was said in Hatzimanolis. The employer had directed her to be at a location away from her permanent place of work and her residence. While at that location, she is therefore seen as carrying out an overall period of work. Her presence at a particular place – the motel – creates an interval in that period whilst she is at that place. An injury occurring in that interval is in the course of employment.
9. If this is what Hatzimanolis conveys, it means that, absent gross misconduct on the part of an employee, an employer who requires an employee to be present at a particular place away from their usual place of work will be liable for any injury which the employee suffers whilst present there. It means that the employer has become the insurer for the employee during the time that the employee is at the place. That would be so even though the injury was suffered in the course of an activity which was clearly unrelated to the employment.
10. These are odd results, yet results which the respondent says must follow because Hatzimanolis makes liability for an injury depend upon it simply occurring within a period of time – that is, the interval. If this is the natural consequence of what was said in Hatzimanolis, that decision would need to be reconsidered. It would need to be reconsidered because it would otherwise effect an undue extension of an employer’s liability to pay compensation under the SR&C Act.
11. The joint reasons in Hatzimanolis make plain that it was not intended to do so. Those reasons were mindful of the limitation on an employer’s liability which is inherent in the expression ‘in the course of’ the employee’s employment…”
The majority summarised part of the reasoning in Hatzimanolis as follows ([29]/260):
“... Where an employee is required to live in a remote location for a period until a particular work-related undertaking is completed, the notion of an overall period or episode of work could apply to that whole period. Thus, on the facts of Danvers, it might be concluded that the time spent at the remote location and in the accommodation provided by the employer constituted one whole period of work, rather than a series of discrete periods. In such a circumstance, an injury which occurs in an interval between periods of actual work might more readily be understood as being within the course of employment than one occurring after working hours in the ordinary situation.”
The majority then set out how to correctly apply the Hatzimanolis principle ([38]/262):
“The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer the relevant question is affirmative, then the injury will have occurred in the course of employment.”
The majority made it explicitly clear later that there needs to be an association or connection with employment. The necessary connection with employment is achieved by an inquiry focused on whether the employer induced or encouraged what was done. The following proposition was enunciated ([60]/268):
“… for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.”
A very helpful decision applying PVYW in the context of a FIFO employee is the Full Federal Court decision of Westrupp v BIS Industries Ltd [2015] FCAFC 173; 238 FCR 354. In that case the employee resided in a remote location on a two week roster. He lived in employer provided accommodation during that time, but could leave the camp on the following one week respite. He was assaulted outside a “wet mess” (tavern) in the camp site. Both the “wet mess” and “dry mess” were open seven days a week and were operated under contract for the mine operator (BHP Billiton).
The Full Court unanimously (Buchannan, McKerracher and Katzmann JJ) held ([73]/369) that the injury occurred in the course of the employee’s employment because it “occurred in an interval or interlude in an overall period or episode of work”. The employer impliedly, if not expressly, induced the employee “to spend his time between shifts at Leinster in the vicinity of the camp, including at the tavern if he chose. Mr Westrupp was not acting so as to take himself outside the course of his employment. He was not guilty, either, of serious and wilful and wilful misconduct so as to disentitle him to compensation”.

The Full Court explicitly rejected the contrary approach of this Tribunal as “too narrow” because it ([68]/368):
“paid insufficient attention to the general nature, terms and circumstances of the employment. It gave too much prominence ‘to the circumstances of the particular occasion...and ‘focused just upon the occasion giving rise to the injury’... When it is recognised that Mr Westrupp was only in Leinster, and at the camp, as an incident of his employment, that he was under the control of the first respondent throughout his time at Leinster, and that he was or would be expected to use the facilities put in place by BHP Billiton, for which the first respondent took the benefit for its own employees as incidents of their engagement, then it seems to us, with respect, that the AAT misapplied the legal principles which govern the proper statutory construction to be given to s 5A of the SRC Act.”
Clearly the Full Federal Court recognised in Westrupp that not every injury which occurs by reference to “place” will be in the course of employment, and thus compensable. Mere presence at a place of itself does not necessarily provide such connection, but what is required in each case is a careful examination of the nature, terms and circumstances of the employment which is the subject of the factual inquiry. In the case of FIFO workers, who are engaged over long periods in remote locations, and where their presence on a camp site and its environs is encouraged, mandated or is practically the only alternative, then, absent misconduct or malpractice, place itself may be determinative of the issue. Indeed, the Full Court held that it was not necessary that both the employee’s presence at the place where the injury occurred and the activity which the employee was engaging in when injured, were each induced or encouraged by the employer ([53]-[54]/365).
In this matter, the uncontroverted evidence is that the Applicant suffered pain and was incapacitated when attending a meeting with management on 21 October 2014. He had previously suffered pain when having breakfast. He had been stood down pending an investigation into claims he made concerning racial vilification, but was still an employee and was required to remain at the camp site. Both having breakfast and attending the meeting were events in the course of his employment. The principles expounded by the Full Court in Westrupp are applicable to this matter.
The Tribunal has previously rejected the contentions of the Applicant that he suffered an injury, namely the aggravation of a disease because of the jarring and jolting of truck seats. The medical evidence supporting that contention, namely the medical report of Dr Anastas, was predicated on a factual matrix which was rejected earlier in this decision.
Conversely, the medical reports of Dr Campbell support a finding that the Applicant suffered an injury when he stood up at the meeting with management. A close perusal of the material might suggest that the onset of the injury occurred during breakfast, but it does not derogate from the fact that whilst at work, in work premises and engaging in activities either promoted (breakfast) or directed (attending the meeting) by his employer, he suffered an injury (other than a disease). That injury being a musculoskeletal injury of the lumbar spine.
Dr Campbell has opined that the injury was “opportunistic” and had it not occurred at the time and place when it did then “it is likely Mr Scully would have sustained a similar injury in the not too distant future” - Exhibit 5 p.5. Nonetheless, the issue to be determined is not whether the injury was opportunistic, but whether it occurred in the course of the Applicant’s employment.
In conclusion, it should be noted that the “induce or encourage” formulation is only applicable during an interval in an overall period of work – O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000; 235 FCR 164. It could be said that the injury in this matter did not occur during an interval in an overall period of work, because the Applicant was required to attend a management meeting and was thus acting on the instruction of his employer in relation to an employment issue at the time the injury occurred. However, even if that were not the case, as already observed, if the injury occurred in an interval, then the Applicant was engaging in activity that was induced or encouraged by the Respondent.
Did the Applicant’s injury result in incapacity for work or impairment?
Liability to pay compensation in accordance with the Act arises where an injury is suffered by an employee resulting in death, incapacity for work or impairment – s 14(1).
The Applicant contends (OSA para 61) an impairment and thereby satisfies s 14. In support of this contention, the Tribunal’s attention was drawn to the fact that the Applicant has not returned to work as a mine site truck driver and is limited to working as an Uber driver for substantially fewer hours than he was working at Cloudbreak (para 59).
Support was also found in the medical reports of Dr Campbell. In his medical report of 30 October 2015, he gave this response to the question whether the Applicant’s condition had resulted in any incapacity for work (Exhibit 5 p.5):
“Yes. Mr Scully’s lower back injury has prevented him from returning to work as a truck driver at a mine site. Any exposure to negotiating machinery over rough terrain in the future would place him at risk of further injury and would be best avoided.”
Dr Campbell provided a further report dated 25 February 2016 in which he again was of the view that the Applicant could not return to work as a truck driver over rough terrain – Exhibit 6 p.2.
In contradistinction, Dr Anastas was of the opinion that the Applicant’s condition would resolve within three months (Exhibit 1 T27 p.467) and that “the workplace incident has not predisposed this gentleman to worsening or permanently accelerate the pre-21^st. October degenerative change.”
When giving testimony, Dr Campbell disagreed with this diagnosis.
The term “impairment” is defined by s 4 to mean: “the loss, the loss of use, or the damage or malfunction, of any part of the body or any bodily system or function or part of such system or function.”
The injury suffered by the Applicant on 21 October 2014 resulted in an impairment which satisfies the requirement of s 14.
Conclusion
The Tribunal has accepted that its jurisdiction is limited to the determination of liability pursuant to s 14 of the Act. The Tribunal has determined that liability exists, but the questions that follow therefrom are for a different decision maker.
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.

I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

..............................[Sgd]..........................................
Associate
Dated: 16 February 2017

Dates of hearing:
12 December 2016; &

13 December 2016

Counsel for the Applicant: Ms Jennifer Hewson

Solicitors for the Applicant: Shine Lawyers

Counsel for the Respondent: Ms Louise Coleman

Solicitors for the Respondent: HBA Legal

[2017] AATA 185

16 February 2017

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Remedies

Statutory Construction

Dates of hearing:	12 December 2016; & 13 December 2016
Counsel for the Applicant:	Ms Jennifer Hewson
Solicitors for the Applicant:	Shine Lawyers
Counsel for the Respondent:	Ms Louise Coleman
Solicitors for the Respondent:	HBA Legal