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[Extract from Queensland Government Industrial Gazette,

dated 10 June, 2005, Vol. 179, No.6, pages 144-145]

INDUSTRIAL COURT OF QUEENSLAND

Workers’ Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate

Mater Misercordiae Health Services Brisbane Limited AND Q-COMP (No. C11 of 2005)

PRESIDENT HALL 30 May 2005

DECISION

Warren Scott Lucas is a long term employee of the Mater Misercordiae Health Services Brisbane Limited. In October 2001, in the hope of correcting a long term problem with his right ear which had caused significant hearing loss, Mr Lucas underwent a stapedectomy. The stapedectomy involved the insertion of a prosthesis in the incus of his right ear. Mr Lucas continued to have problems with his ear. Ultimately, on 13 March 2002, he underwent a further operation which revealed that the prosthesis had become dislodged. During the course of the operation, the prosthesis was reattached. Mr Lucas continued to experience problems with his ear. On or about 17 July 2002, a third operation was performed. The prosthesis was removed. Mr Lucas continues to experience problems with his ear. He attributes the problems which he encountered after the first operation and the second operation to his employment. It is common ground that he wore ear muffs in the course of his employment. The case developed by Mr Lucas was that sudden removal of the ear muffs cause an outward movement of the ear drum because of the vacuum effect. In particular, it was contended that the slipping of the prosthesis between the first operation and the second operation was attributable to that movement.

WorkCover rejected the claim for compensation. There was a statutory review. Q-COMP accepted the claim. There was an appeal to the Industrial Magistrate at Brisbane. That appeal was dismissed. The employer now appeals to this Court.

The first submission is that the Industrial Magistrate applied the wrong test. Attention is focused upon a passage in the judgement whereat Her Honour said:

“The issue was whether the removal of the ear muffs could have caused the dislodgement of the prosthesis which led to Lucas suffering increased vertigo and tinnitus.”.

The submission is that the issue was not whether the removal of the ear muffs could have caused the increased tinnitus and the vertigo but whether the removal of the ear muffs was a significant contributing factor to the increased tinnitus and the vertigo. With the greatest respect, it seems to me that the submission takes the Industrial Magistrate’s observation entirely out of context. The observation appears in the course of the passage dealing with the evidence of a Warwick Williams, a Senior Research Engineer with the National Acoustic Laboratories, who had been called to give evidence by the Appellant about the likelihood of the sudden removal of the ear muffs producing a partial vacuum. In the course of that discussion Her Worship said:

“He stated in evidence that he had discussed the issue with colleagues involved in the Hearing Research National Physics Laboratory and the agreed opinion was that it would be very unlikely for an individual who had been using hearing protection in the recommended appropriate normal manner to produce the effects of a deterioration in hearing as a result of damage to the stapes after it had been replaced. This was, of course, not the issue. There was no question the removal of ear muffs had anything to do with the deterioration of Mr Lucas’s hearing – it did not. The issue was whether the removal of the ear muffs could have caused a dislodgement of the prosthesis which led to Lucas suffering an increase in vertigo and tinnitus.”.

In context, the observation is quite unacceptable. It may be added that the Industrial Magistrate, who has very considerable experience in workers’ compensation matters, elsewhere in the judgment referred to the proposition that:

“…the appellant has to establish on the balance of probabilities that Lucas has not suffered an injury pursuant to s. 34 of the WorkCover Queensland Act 1996.”.

For fullness, it seems to me that if Her Honour was inquiring whether the sudden removal of the ear muffs could have caused a vacuum and a sudden movement of the ear drum, Her Honour was engaged on a legitimate inquiry. There was evidence, to which it is not necessary to go in any detail for the purposes of this appeal, about the onset of dizziness and nausea contemporaneously with two specific occasions on which the ear muffs had been removed. The issue whether Mr Lucas’s employment was a significant contributing factor to the injury was not a medical question. It was a question of mixed fact and law. Provided the medical evidence stopped short of denying that the removal of the ear muffs could have caused movement of the ear drum, it was open to the Industrial Magistrate to find the causal connection in the contemporaneous facts and sequel; EMI (Australia) Ltd v BES [1970] 2 NSWR 238 at 243 per Herron CJ with Asprey JA and Holmes J agreed. If the Industrial Magistrate did enter upon the inquiry attributed to Her Honour, the Industrial Magistrate was entering upon an entirely appropriate inquiry.

The second attack is upon the way in which the Industrial Magistrate dealt with inconsistencies in the evidence of Mr Lucas. The contention is that the case is the converse of Devries v The Australian National Railways Commission and Another (1992-1993) 177 CLR 472 in that the Industrial Magistrate accepted Mr Lucas as a credible witness without dealing with the inconsistencies. There are a number of things to be said about that proposition. First, it seems to me that the Industrial Magistrate did confront the inconsistencies and explained them away by finding that:

“Lucas is understandably a little confused as to the sequence of events as it is sometime since the first operation and he was required to see Coman on a number of occasions.”.

Conclusory though the explanation was, it seems to me that it does expose the basis of the finding that Mr Lucas was a credible witness. The choice between conflicting evidence is often a matter of judgement and evaluation calling for no more than an expression of opinion about credibility; compare Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 QdR 462 at 484 per McPherson and Davies J.A.

Moreover, on fair reading of the transcript, the inconsistencies do not seem to me to be of the moment attributed to them on this appeal. Whilst Mr Lucas had some difficulty in nominating the time of occurrence of events which did not seem of significance at the time, Mr Lucas’s evidence about problems with his ear, including the discharge of dry blood and fresh blood, over a period of time, his evidence about a specific incident involving the use of a “blower” to tidy leaves and his evidence about an incident involving the use of a cherry picker to conduct pruning operation, was essentially consistent. The inaccuracies in detail, e.g. in recollecting that on a particular occasion he sought assistance from his treating specialist (who had control of the treatment) when in fact he had seen the registrar, seem to me to be matters for assessment by the Industrial Magistrate. It was the Industrial Magistrate who had the advantage of seeing and hearing the witnesses and observing the trial unfold. And in fairness to Mr Lucas it seems to me that there is force in the submission of Counsel for the Respondent that there was much leading of evidence (without objection) at the trial and that a part of the problem was that the “inconsistencies” ar0se out of language that was not his own.

I accept the criticism that it was Mr Lucas’ evidence that he told certain work mates that the ear muffs were the cause of his difficulty and the evidence of those workmates that he did not. The Industrial Magistrate did not resolve the conflict. The significance of the evidence was described by Counsel for the Appellant as follows:

“It could have been inferred from their evidence that Mr Lucas was attempting to shore up his claim by creating a contemporaneous conversation with his colleagues. It was open to Her Honour not to draw that inference, but it is curious that these two witnesses were not mentioned in the judgement at all. Her Honour simply disregarded them entirely.”.

There is no doubt there is a problem with the conflict. One cannot know whether the fault lies with the recollection of the work mates or the recollection of Mr Lucas. On that matter, I note that in one Exhibit it was Mr Lucas’s recollection that it was work mates who had suggested to him that ear muffs might have been the cause of his problem. Even if, having considered the matter, the Industrial Magistrate had preferred the recollection of the work mates (who had no particular reason to remember the conversations) to the recollection of Mr Lucas (who had every reason to be concerned), it would have been a further step to find that Mr Lucas was trying to shore up his case. And an adverse finding on that point, would not necessarily lead to the conclusion that Mr Lucas was not credible upon the essential issues. I can well understand that the Industrial Magistrate who, for other reasons, had formed a positive view of the credibility of Mr Lucas upon the critical issues, would simply put the matter aside. The Industrial Magistrate’s findings are not inconsistent with incontrovertible facts, glaringly improbable or contrary to compelling inference and there is nothing that points decisively and not merely persuasively to error by Her Honour: compare Devries v The Australian National Railways Commission and Another (1992-1993) 177 CLR 472; and Fox v Percy (2003) 214 CLR 118.

The remaining criticisms are directed at the way in which the Industrial Magistrate dealt with the evidence. The appeal is by way of rehearing. In the absence of some legislative indication to the contrary, such an appeal is an exercise in the correction of error: compare CDJ v DAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ; and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at para [14] per Gleeson CJ, Gaudron and Hayne JJ and [75] per Kirby J.

Whilst there are some points in the decision upon which reasonable minds might differ, the view taken by the Industrial Magistrate was plainly open to Her Honour. In those circumstances there is no justification for entering upon the retrial on the papers which would have been necessary if the Industrial Magistrate’s decision had been set aside.

I dismiss the appeal.


I reserve all questions as to costs.

Dated 30 May 2005.

D.R. HALL, President.
Released: 30 May 2005 / Appearances:
Ms S. Anderson, instructed by Mr M. McDevitt of Mullins Lawyers, Solicitors for the Appellant.
Mr P. Rashleigh, directly instructed for the Respondent.

Government Printer, Queensland

ÓThe State of Queensland 2005.