Foord v Workcover/Mmi

4 It was contemplated that after the sale of the business, the claimant would continue to perform (to use a neutral term) tool-making duties for Brook. Thereafter, the claimant routinely performed tool-making duties for Brook and the income generated therefrom was recorded in the trading profit and loss statements for Reg Foord Pty Ltd. However, for the financial year from 1 July 1993, which effectively ended for the claimant on the day of the stroke, Brook issued a group certificate in the name of Reg Foord Pty Ltd.

5 The claimant asserts that he is a worker for the purposes of the Act on one of two bases. First, that despite the apparent existence of contractual arrangement between Reg Foord Pty Ltd and Brook, he was in truth, personally employed by Brook. Secondly, that in the alternative, the arrangements between Reg Foord Pty Ltd and Brook reflect the true legal relationship; that the claimant was an employee of Reg Foord Pty Ltd; and that his services were effectively lent out on hire to Brook.

6 The Corporation contends, that the group certificate to which I have earlier referred, was clearly issued in error, and in any event, was issued to Reg Foord Pty Ltd and should be ignored. It asserts that the true legal relationship was a contract between Reg Foord Pty Ltd and Brook and that the claimant, having chosen to conduct his business affairs under the corporate veil is stuck with that and cannot now assert that he was in fact, at all material times, an employee either of Brook or Reg Foord Pty Ltd.

7 I am against the Corporation on this issue. In my opinion the fact that the claimant was the proprietor of Reg Foord Pty Ltd, was its director, and was its major shareholder, is not inconsistent with him being an employee of that company. I also do not consider that Reg Foord Pty Ltd's failure to issue the claimant with a group certificate or its failure to claim him as an employee on its taxation returns, is decisive. The company, and in particular, the claimant, had left issues such as accounting and the preparation of taxation returns to the claimant's accountant, Mr Russo. Mr Russo's description of the situation for accounting and taxation purposes is not conclusive. For what it is worth, I do not think that there is any sham here. There is no evidence that suggests to me that any of this was calculated to avoid taxation that otherwise would have legitimately been payable. Be that as it may, I am satisfied on the evidence presented and I find that the claimant was employed by Reg Foord Pty Ltd as a tool maker and that it, pursuant to its contractual obligations with the Brook, lent the claimant's services on hire, for a fee. Hence, I find that the claimant was an employee of Reg Foord Pty Ltd. I therefore find, that he was a worker for the purposes of the Act.

8 The notice of work disability and claim for compensation were lodged at the same time. That is, over four years after the alleged compensable disability occurred. S 52(1)(b) provides that a claim for compensation must be made within the prescribed period which in turn, is defined in s 52(7) as within six months of the date upon which the entitlement to compensation arises. In other words, the claim for compensation, to have strictly complied with s 52, should have been lodged in February 1994. In addition to this there is a requirement under s 51 for a notice of disability to be given as soon as practicable after the disability occurs. Pursuant to s 52(1) and 52(2) the failure to make a timely claim or the failure to give timely notice, can provide a bar to the pursuit of a claim for compensation. But s 52(3) provides exceptions to this that can be relied upon to excuse the delay. One of these is that the failure to give notice or to make a claim can be attributed to reasonable cause. At the time when the claimant should have given timely notice of his disability, he was suffering from the debilitating effects of the stroke. At the time when he should have pursued a claim for compensation, he was pursuing a rigorous course of rehabilitation in an attempt to overcome the debilitating effects of the stroke. In my opinion these excuses satisfy the relevant statutory provisions. I find that the claimant's failure to give notice and his failure to make a timely claim, can be attributed to reasonable cause. I therefore find that the claim for compensation is not statute barred.

9 The evidence clearly establishes that for some time prior to the stroke the claimant was suffering from high blood pressure and that this was undoubtedly the main contributing cause to the occurrence of the stroke. The question that arises here is whether there were other factors that featured. The claimant's case is that the work that he performed in the hours before the stroke, being work which involved him in manoeuvring a very heavy die, contributed to the onset of the stroke in circumstances whereby the stroke can be said to have arisen out of or in the course of his employment. In respect of this issue, I heard and read medical opinions from two neurologists, Dr Mark Robinson and Dr Chris Kneebone and from two neurosurgeons, Mr Brian North and Mr Glen McCulloch, the former of whom was the claimant's treating neurosurgeon. The neurologists gave expert opinion that there can be a relationship between an increase in blood pressure associated with the performance of physical work and the subsequent development of an intra cerebral stroke. The neurosurgeons refuted that hypothesis and contended that no such relationship could be said to exist, although Mr McCulloch, conceded, that if there had been a very strong temporal connection between the elevation in blood pressure and the development of the stroke that it would be difficult to argue that such a connection did not exist.

10 The claimant's case was that in the course of manipulating a particularly heavy die on the day of the stroke he experienced some distress and developed a headache at the back of his head. I was asked to find that when he ceased working that day at around midday, he felt unwell and upon his return home, he declined to go shopping with his wife, as was usually his custom and instead resolved to potter around his boat, which was situated in his garden at the rear of his house. I was asked to find that shortly after this, he felt excruciating pain in the same site as where he had previously experienced the headache and that this evidenced the major stroke he was subsequently diagnosed as having sustained at that time.

11 As much turns upon my findings as to what occurred on the day of the stroke I think it is important to canvass the evidence on this topic in some detail.

12 Dr Peter Thorpe, the claimant's general practitioner who came to the claimant's home on the day of the stroke after being notified by Mrs Foord that the claimant was in some difficulty, records in his report of 15 December 1997:-

"The history obtained was the Mr Foord, on [sic] particular day, had been lifting a heavy die up and down all morning. He returned home at approximately 12.30pm and while he was at the back of his garden, at approximately 1pm, he developed severe headache but does not remember very much else."

13 The notes at the Modbury Hospital accident and emergency department, no doubt reflecting the history provided by Mrs Foord on the day of the stroke record:-

"He was alright until 13.00 hours today when wife left home. She returned around 15.00 hours and found him on the sofa slumped on right side, unable to speak properly and complaining of left sided headache."

14 On 12 December 1997, investigators who were engaged by the Corporation to investigate the claimant's claim interviewed the claimant and his wife. I take the following from the transcript of that interview (Book of Docs 43):-

"I said: Okay When you finished work at 12.30, you went home?

He said: Well I said hello, had something to eat and she said come in town ...

She said: [ie Mrs Foord] Yeah, I asked Reg if he wanted to go shopping, his reply, just replied he didn't feel too good, his head was aching, he'd stay at home."

15 In a report dated 15 January 1998, Dr Robinson sets out the following history:-

"... On the day in question, Mr. Foord was apparently lifting heavy objects at work. He completed work at lunchtime, this being his normal hours for that particular day. Around this time he developed a mild headache and subsequently went home. He did not return because of the headache but only because he had finished work at his usual time. He returned home and it was while when he was in a boat at the back of his garden at approximately 1.00 pm. or later, that he had a severe instantaneous headache which was felt at the top of his head. He returned to the house but doesn't recall much else. His wife returned home at about 2.00 pm. to find her husband severely ill with a right hemiparesis and significant speech disturbance."

16 In a report dated 29 December 1998, Dr Kneebone records:-

"From the statement given by Mr Foord there seems little doubt that the major haemorrhage occurred while he was on his boat in his garden after lunch. The possibility that there may have been some initial small haemorrhage is raised by the history given by his wife that her husband had chosen not to go shopping with her because he `didn't feel too good, his head was aching'. It is a pity that there isn't a more detailed history available as to the onset of these symptoms. If these symptoms did in fact begin while lifting the heavy metal dies or soon afterwards then I think that there is a very good case for assuming that the heavy lifting was responsible for his intracerebral haemorrhage."

"If there can be some confirmation of the onset of the headache while working then I would conclude that its more likely than not that there is a causal connection between the lifting at work and the subsequent development of the intracerebral haemorrhage."

18 In a statement made by the claimant on 13 January 1999, to his solicitor, he states the following:-

"I remember developing a headache at work. I left work at about 12.30 pm and got home shortly thereafter. When I got home I told my wife about the headache. I told her that I didn't feel that well and that I would potter around. My wife left home at 1.30 pm. I continued to have the headache. I recall that I went out to look at the boat in the garden. I climbed into the boat to do something minor and I felt a terrible pain in my head."

19 In a statement that the claimant gave to his solicitor on 10 September 1999, he records:-

"I remember being at work on that morning and remember developing a headache when I left work. I left work at my normal time on that day which was at about midday and drove home to our house then at Tea Tree Gully, which was about 10 minutes away from the factory. I do not recall having any trouble arriving home. My wife was at home when I got there. I can remember having a sandwich for lunch that day. Normally on a Friday afternoon, I would go shopping with my wife when she would do our normal supermarket shopping. I remember that I was not feeling well enough to go with her. I told her that I was not going shopping and I changed into my clothes to go pottering out in the garden. I said I would go look at my boat which was in the garden. I remember climbing the steps to get into the boat. I think I must have been intending to take the boat out on the following day or over the weekend. I think I was probably just going to check that the electrical connections were all okay. I just stepped into the cockpit of the boat and I got a severe pain sensation in my head."

20 In a statement given to the claimant's solicitors on 21 September 1999, Mrs Foord records:-

"On 6 August 1993, Reginald went to work as usual in the morning. He came home at about 12.00 noon or 12.15 pm. I waited for him to come home and when he did, I asked him if he wanted to come shopping with me. We frequently went shopping on Friday afternoons. He said `No, I have a bit of a headache, I'm not feeling too good'. I think Reginald had a sandwich for lunch and I left at about 1:15 pm. I returned at 3.15 pm. ... When I got back home, Reginald was sitting on the sofa in the family room with his head in his hands."

Q How long before you left work did that headache start.

"Q And by the time you got home how were you feeling.

23 During the course of the claimant's cross-examination, Ms Kelly put to the claimant the history that Mrs Foord had given to the doctors at the Memorial Hospital (tr 49):-

"Q You see, she told the doctors at Modbury Hospital when you got there, `He was all right until 1 o'clock today when wife left home'.

Q She was able to say that you were all right because you didn't have a headache when she left home.

"Q What happened, as far as you were concerned, on this day that he had the stroke. Firstly, you were home when he came home.

A I was at home at around 12:00 or 12.15 when Reg came in from work.

A I was at home getting lunch ready. As I said it was around about 12:00, 10 past 12. Usually we had a sandwich for lunch.

A I spoke to him and - usually we went shopping after he got home on Friday lunchtime, grocery shopping. I said "Are you coming today?" And he said, "No I'm not feeling too good, my head's hurting, I'll stay at home and potter in the boat."

25 Ms Kelly put the history that Mrs Foord had given to the doctors at the Memorial Hospital (tr 57):-

"A To be honest, I can't clearly remember that but I was crying and very distraught at the time. I can't remember even driving to the hospital.

Q Well, why would you say he was all right when you left if he told you that he wasn't feeling too good and he had a headache.

A Well, if you have a headache - I didn't consider that would be a life-threatening thing. I mean I have headaches but I don't expect it to be a life-threatening thing and he said he had a - he wasn't a man to make a great stuff. He just said he had a headache."

26 So I am left with this. The claimant said in his evidence before me that he never mentioned to his wife when he got home that he had a headache. This is contrary to what he had said in previous statements. Mrs Foord told me and others that the claimant had complained to her at lunchtime some time before the stroke, that he had a headache. But she apparently did not mention this to Dr Thorpe when he attended at the scene, nor did she mention it to those who attended upon the claimant at the emergency room at the Modbury Hospital. The claimant told me, and it emerges in a statement, that he was experiencing a headache for up to two hours before he got home from work. But that is not mentioned in any of the statements obtained prior to Dr Kneebone's report detailing the importance of a history of an earlier complaint of headache. The claimant says that the headache that he experienced at work and later, was at the back of his head, whereas, the history obtained upon attendance at the Hospital was that he had a left sided headache. To that, I add Mr McCulloch's evidence to the effect that an intra cerebral haemorrhage produces pain in the side of the head not the back. He also I think validly makes the point (tr 212):-

"...a person who suffered from such a severe haemorrhage as this is very unlikely to have an accurate and correct recollection of events leading up to the haemorrhage."

27 Whilst I am sure that the claimant and Mrs Foord. genuinely believe that their account of what occurred is true, I am also sure that they have gone over and over the circumstances leading up to the stroke and as a result, much of what they had to say was the product of reconstruction on their part. On this issue I do not find their evidence sufficiently reliable to make findings of fact.

28 This leads me to conclude that the correct history is as outlined in the report of Dr Thorpe in his report of 19 December 1997, and that is that the claimant experienced a severe headache at about 1 pm on the day of the stroke. I am unable to make any findings about the existence of a headache prior to that.

30 I find that all of the medical experts are competent in their respective fields and are witnesses of truth. I do not find it necessary to resolve the conflict in their opinions regarding the relationship between a sudden elevation in blood pressure consequent upon physical exertion and the later onset of a major intra cerebral stroke. I say this, because in my view, Dr Kneebone's opinion is significantly weakened by my inability to make a finding about the prior existence of a headache and Dr Robinson's opinion only ever recognised that there was a possible connection between the performance of the activities at work and the onset of the stroke.

31 My very firm impression is that for Dr Kneebone, the existence of the headache beforehand, was of some significance. He said, for example at tr 166:-

"I mean, sometimes the headaches are a bit of a side issue - but given that his headache seems to have been the major initial symptom of his subsequent haemorrhage I am assuming it was also a symptom of the initial haemorrhage."

32 As for my assessment of Dr Robinson's opinion I think it is sufficient to refer to the following extract from his evidence. He said, (tr 105):-

"Did he have a bleed at that time? Who knows. I mean, we don't have a CAT scan at that time because nothing had happened. Could he have had a small haemorrhage at that time, which developed and became the main - bigger haemorrhage, an hour or two later? Then the answer is yes."

33 Thus, even if I were prepared to accept the opinions of Dr Kneebone and Dr Robinson to the extent that they conflict with the opinions expressed by Mr North and Mr McCulloch, I would not be persuaded by their evidence to find that the claimant's work contributed to the stroke.

34 I find that on the morning of the stroke the claimant was performing very arduous working activities that involved significant physical exertion and which were likely to have elevated his blood pressure. I accept that there could be a possible connection between these working activities and the stroke. But, having carefully considered all of the evidence presented to me, I cannot put it any higher than that. I do not see any striking sequence of events that would give rise to the presumptive inference that was spoken of in Adelaide Stevedore and Company Ltd v Forst [1940] HCA 45; (1941) 64 CLR 538, nor do I see it as a case of being able to draw an inference that the stroke was work related, from established facts, in the manner spoken of by Mulligan J in Van Thanh Pham v. Workers Rehabilitation and Compensation Corporation and Wingfield Heat Treaters [1995] SASC 5056. The evidence does not persuade me, on the balance of probabilities,

that the stroke can be said to have been contributed to by the claimant's employment. For this reason, in my opinion, the Corporation was right to have rejected the claimant's claim. I therefore uphold its determination.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.

DECISION INFORMATION SHEET AND PRINTING REQUEST

Author: Gilchrist DP A/J Date Received: 7/3/00

Case: Windham Foord v WorkCover/MMI (Brook Engineering Pty Ltd)

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1st DRAFT [ x ] DATE: 8/3/00 OPERATOR: Nina Mullally

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