CITATION: Patricia Tearoiti AND Q-COMP and Woolworths Limited (WC/2012/155) - Decision

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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission

Patricia Tearoiti AND Q-COMP and Woolworths Limited (WC/2012/155)

INDUSTRIAL COMMISSIONER THOMPSON 27 August 2013

DECISION Introduction [1] On 19 April 2012, Patricia Tearoiti (Tearoiti) lodged a Notice of Appeal with the Industrial Registrar pursuant to

s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) dated 22 March 2012.

[2] Q-COMP confirmed the decision of the self-insurer to reject Tearoiti's Notice of Claim for Damages in

accordance with s. 32 of the Act. The Notice of Claim was for multiple injures sustained in a car accident on 27 May 2009 which was said to be as a result of sequelae of an incident which occurred on 26 May 2009 when Tearoiti was hit in the head at work.

[3] On 2 April 2013, Deputy President Bloomfield granted Woolworths Limited (Employer) leave to appear in this

matter under certain conditions. Relevant Legislation [4] The Legislation pertinent to this Appeal is s. 32 of the Act:

"32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant

contributing factor to the injury.".

Nature of Appeal

[5] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls to Tearoiti. Standard of Proof [6] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of

probabilities". Evidence [7] In the course of proceedings, evidence was given by eight witnesses. [8] The Commission, in deciding to précis the evidence of each of the witnesses and submissions, notes that all the

material has, for the purposes of this decision, been considered in its entirety. Witness Lists [9] The witnesses for Tearoiti were as follows:

• Patricia Tearoiti (Tearoiti); • Robert Emanuel (Emanuel); • Elizabeth Rodak (Rodak); and • Dr Frank Tomlinson (Dr Tomlinson).

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[10] The witness for Q-COMP were as follows:

• Greg Miller (Miller); • Gillian Weber (Weber); • Dr Leigh Atkinson (Dr Atkinson); and • Dr Gregory Ohlrich (Dr Ohlrich).

[11] The Employer called no witnesses. Appellant Tearoiti [12] Tearoiti (now known as Patricia Emanuel) had been an employee of Woolworths Limited for almost ten years

and in May 2009 held the position of 2IC Deli Manager at the Sunnybank Hills store. Following a motor vehicle accident on the way to work on 27 May 2009 she was absent from work for almost one year. At the time of hearing, her employment was not that of a full-time employee as she now worked 25 hours per week as a Bakery Assistant at the Sunnybank Hills store.

[13] Tearoiti gave evidence that she had no recollection of a work incident on 26 May 2009 when storage tubs (made

of thick plastic) were said to have fallen on her head or any recollection of a motor vehicle accident the following day.

[14] In regards to her recollection, she gave the following evidence "No. Not what - only little bits but I don't know if

it's mine or what other people have said" [Transcript p 1-10]. [15] Tearoiti gave evidence about her understanding of the storage tubs and of them being used for the storage of

seafood. The tubs were described as being one metre in length and 60 centimetres in width. The empty storage tubs were stored in a refrigerator "anywhere on a shelf" above head height.

[16] In regards to the motor vehicle accident of 27 May 2009, Tearoiti gave evidence to the effect that:

• she had held a drivers licence for about a year and a-half (having a "learners" for about six months); • on the day she was driving a Holden Commodore that was without fault or defect; • she had never previously been involved in any motor vehicle accident; and • she had never been issued with a traffic infringement notice.

[17] Under cross-examination, Tearoiti confirmed that at the time of the motor vehicle accident she held a provisional

drivers licence. On the size and weight of the plastic tubs, she acknowledged that she had never measured the tubs but accepted the weight of a tub would be around 1.6 kilograms.

[18] In questioning from Q-COMP's Counsel, Tearoiti had difficulty recalling the events of 26 May 2009, stating that

"I don't know if that's my memory or if what people have told me" [Transcript p. 1-15]. Her memory of the incident was almost non-existent with her being unable to give any credible evidence of the incident and events after, including being picked up by her partner at 6.00 p.m. that evening. She went on to concede that she had no memory of the circumstances of the actual incident or of the evening of 26 May 2009 [Transcript p. 1-17].

[19] Tearoiti accepted that on 7 September 2010 in a consultation with Dr Ohlrich she informed him that she could

recall receiving a minor head injury on 26 May 2009 when empty storage tubs fell on her head, but did not accept telling him that she was not knocked unconscious and her memory of events on that day was satisfactory [Transcript p 1-19].

[20] Tearoiti did not recall, in terms of her driving, that she had been involved in any "near misses" however when

taken to a report from Dr Nicholas Burke where on 29 June 2010 she had indicated that there had been a couple of "near misses", her evidence was that there was an issue on a roundabout when she was the driver.

[21] In evidence about the layout of the cold room at the Sunnybank Hills store, Tearoiti accepted that the highest

shelf level was 180 centimetres and that her height was 166 centimetres. When shown an incident report said to have been filled out by her on 26 May 2009 in the presence of Weber, Tearoiti could not recall if she completed the document or whether Weber had collected the information from her [Transcript p. 1-22]. Tearoiti gave evidence that arising from the motor vehicle accident of 27 May 2009, she had pleaded guilty in the Ipswich Magistrates Court to driving without due care and attention [Transcript p. 1-23].

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[22] In re-examination, Tearoiti's evidence was that on the day she appeared in the Ipswich Magistrates Court she was advised by a person unknown to plead guilty and her evidence being that she had spoken to a Police Officer on the day before she attended the Court.

Emanuel [23] Emanuel, the now husband of Tearoiti, gave evidence that in May 2009 he and Tearoiti were, at the time, sharing

a house with his mother (Rodak). In evidence, he recalled that on 26 May 2009 at around 2.00 p.m. he received a call from his wife advising that some tubs had fallen on her head at work and could he pick her up as she did not feel comfortable driving home. She did not want to come home immediately and undertook to ring him when she was ready. She advised him that for the rest of the afternoon she would be completing paperwork. He was subsequently contacted by his wife at 4.30 p.m. and, in the company of Rodak, drove to Tearoiti's place of employment.

[24] On arrival at the shopping centre at around 5.00 p.m. he and Rodak entered the building (separately) and he

found Tearoiti being escorted to the front of the Woolworths store by Weber. He observed that Tearoiti had a large lump on the right side of her head and she told him that it was sore and she had a headache. She indicated that she had not been taken to a doctor but was alright.

[25] Emanuel drove Tearoiti home (in her car) whilst Rodak drove the other vehicle. The trip home took about 30

minutes during which time Tearoiti slept, only waking when the car hit a bump in the driveway. He gave Tearoiti some Panadol and prepared a bath in which she spent some time, including eating of a meal prepared by Rodak, who had arrived home after them. His evidence was that at around 7.30 p.m. she got out of the bath and went to bed which was earlier than her normal time of 9.00 to 9.30 p.m. Tearoiti woke at around 5.00 a.m. the next morning and whilst complaining of a headache Tearoiti left for work. Later that morning (at around 9.00 a.m.) he received a phone call from his sister advising that his wife had been in an accident.

[26] In evidence, he recalled that subsequent to the motor vehicle accident he attended a number of doctor's

appointments with Tearoiti but at no time did he assist her in describing the incident of 26 May 2009. Tearoiti, according to Emanuel, "couldn't remember the accident at all" [Transcript p. 1-39].

[27] Under cross-examination, his evidence was that when Tearoiti had rang him on the afternoon of 26 May 2009

she was speaking normally and made an arrangement to be picked up when she was ready [Transcript p. 1-40]. In the second phone call received at 4.30 p.m. his evidence was that she had not displayed any problems with her communication.

[28] With regards to his arrival at Woolworths that afternoon, he doubted the arrival time was 6.00 p.m. rather than

5.00 p.m. because when he arrived home the sun was still up. A number of propositions were put to him about his arrival at the store which included:

• Tearoiti was not at the front of the shop but in a room upstairs; • he was required to locate her; • he had a conversation with Weber where suggestions were made by Weber the best course of action for

Tearoiti was to go home and go to bed; and • he had never mentioned to Weber whether Tearoiti had been taken to a Doctor.

Emanuel either did not recall or disagreed with the propositions [Transcript p. 1-42].

[29] With regards to the lump on Tearoiti's head, it was Emanuel's evidence that whilst it was in her hairline, he was

able to observe it and did not accept that there was no lump [Transcript p. 1-43]. With regards to the injury, he did not see the need to take her to see a General Practitioner or a hospital to have her checked [Transcript p. 1-43].

[30] That evening his evidence was that Tearoiti experienced no difficulties:

• bathing and getting out of the bath; • eating her meal in the bath (on a block of wood); • communicating; • dressing; and • going to bed.

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Rodak [31] Rodak, the now mother-in-law of Tearoiti, gave evidence that on 26 May 2009 she was residing at the home of

her son (Emanuel) and earlier in the day had been to Ikea with him, arriving home around lunchtime. Later that day, Emanuel took a phone call from Tearoiti about an accident she had at work and wanted Emanuel to pick her up rather than drive home herself. Immediately after the phone call (around "four-ish") they drove to Tearoiti's place of work where Emanuel went in to Woolworths to get Tearoiti while Rodak remained in the centre proper.

[32] Around 15 to 20 minutes later they both appeared from the store at which time Tearoiti indicated that she was

"not too good". They left for home where her evidence was that she was the first one home by some five minutes. Tearoiti had a bath, dinner and went to bed at around 7.00 p.m. rather than her usual time of 10.00 p.m.

[33] Under cross-examination, Rodak's evidence was that she believed there was only the one telephone call on the

afternoon of 26 May 2009 and she did not hear the conversation but relied upon what Emanuel had told her. The arrival time at the shopping centre could have been around 6.00 p.m. On arrival at the house, she waited for the other car to arrive as she had no key to gain entry.

Dr Tomlinson [34] Dr Tomlinson, a Neurosurgeon with 25 years in practice, examined Tearoiti on 12 April 2012 for the purpose of

providing a medico-legal report. The report (dated 9 July 2012) was tendered in the proceeding [Exhibit 4] and contained a lengthy history of events from 26 May 2009 until 12 April 2012 which had been provided by Tearoiti at the time of the consultation.

[35] In the report under the heading of "Impairment Assessment", Dr Tomlinson stated:

"On 26.5.2009 Ms Tearoiti developed a concussion following a minor closed head injury at her work. It is my belief that if not for the accident which occurred on 27.5.2009 Ms Tearoiti would have made a complete recovery following the concussive injury she sustained on 26.5.09". He went on further to opine: "I believe there is a causal relationship in relation to the accidents which occurred on 26 [27] May 2009. I have reached this belief from the information contained in the statements of Gillian Weber (12.10.2011), Greg Miller (23.9.2011) and Robert Emanuel (5.12.2011).".

[36] In regards to the statement of Emanuel, he quoted the following:

"On arrival Mr Emanuel noted that there was a large lump on the side of his wife's forehead which was prominent.".

[37] In his evidence-in-chief, Dr Tomlinson stated that Tearoiti had "altered sensorium" which meant that she was suffering a post-concussional syndrome secondary to the traumatic brain injury, from the minor head injury she had sustained on 26 May 2009. Post-concussional syndrome was said to occur in anything between 40 and 80 percent of people who suffer a mild head injury. The symptoms associated with this condition were said to include headaches, irritability, fatigue, and some difficulty with memory and concentration.

[38] With regards to the lump on her head, that would indicate there was a point of impact. It was Dr Tomlinson's

opinion that a minor closed head injury is in the traumatic brain injury spectrum and the fact that Tearoiti was able to show two Managers physically the location of the incident was not inconsistent with her subsequently suffering a post-concussional syndrome.

[39] Under cross-examination, Dr Tomlinson did not believe that when he examined Tearoiti that Emanuel was

present and his notes reflected that position. Tearoiti, according to Dr Tomlinson, told him that she had no clear recollection of the 26 May 2009 incident. On the matter of a traumatic brain injury, Dr Tomlinson conceded that the spectrum covered a minor to a severe closed head injury [Transcript p. 2-8]. He further conceded that a person could have a minor closed head injury and not experience post-concussional syndrome [Transcript p. 2-9]. There was evidence from a number of people that she suffered a minor closed head injury and that had been accepted by Dr Atkinson [Transcript p. 2-11].

[40] In terms of the car accident the following day, Dr Tomlinson was of the view that the cause of the accident was

linked to the incident that had happened the previous day [Transcript p. 2-13]. [41] Questioning around his report revealed that the Doctor was unaware of the hours worked by Tearoiti on

26 May 2009 and he had limited knowledge regarding the dimensions of the plastic tubs (nor the weight of the

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tubs) that had hit Tearoiti on the head. The height of the shelf was also unknown with Dr Tomlinson giving evidence that Tearoiti was unable to give a satisfactory recollection of events on that day.

[42] On the failure of Miller to find any sign of a lump when undertaking an examination of Tearoiti, Dr Tomlinson's

evidence was that "lumps don't have to come up straight away" [Transcript p. 2-15]. When the proposition was put to Dr Tomlinson that Tearoiti had not complained of fatigue three to three and a-half hours after the incident, his response was "your symptoms don't have to all come at once" [Transcript p. 2-16].

[43] The content of Dr Tomlinson's report was subject to questioning as well as his opinion about the link between

the minor closed head injury and the motor vehicle accident of 27 May 2009. [44] Dr Tomlinson was taken to a file note of Dr Ohlrich (dated 28 March 2013) where he believed it was unlikely

that the head knock on 26 May 2009 was causally related to the motor vehicle accident that occurred on 27 May 2009 although he had stated that he could not completely exclude the possibility. Dr Tomlinson did not disagree with that opinion, however was of the view that it was more likely than not if you had a minor closed head injury you are going to have post-concussional syndrome [Transcript p. 2-22].

[45] When taken to the history relied upon by Dr Ohlrich in which it was put that Tearoiti's history was consistent

with the observations made by Weber and Miller, Dr Tomlinson's response was that she was unable to give him specific details of her accident [Transcript p. 2-22].

[46] Counsel for the Employer quoted a number of symptoms in respect of concussive traumatic brain injury, those

being headache, amnesia, ringing in ears, nausea or vomiting, and slurred speech. Dr Tomlinson accepted they were some of the symptoms, however there was a variety of symptoms and you don't have to have them all [Transcript p. 2-24].

[47] In reaching his opinion on Tearoiti suffering post-concussional syndrome, Dr Tomlinson did not accept that he

was working backwards from the motor vehicle accident [Transcript p. 2-26]. He did not accept that if a person woke up the morning after suffering a minor closed head injury and had a headache that they would be "right" [Transcript p. 2-27].

[48] In re-examination, Dr Tomlinson stated that Tearoiti's decision not to drive after the 26 May 2009 incident but

drive the next morning did not alter his view that she was suffering from post-concussional syndrome [Transcript p. 2-29]. On the presence of a lump on Tearoiti's head, his evidence was that the application of an ice pack is supposed to reduce any swelling that may occur. With regards to the testing undertaken by Miller on 26 May 2009, he gave evidence that it seemed appropriate [Transcript p. 2-30].

Q-COMP Dr Atkinson [49] Dr Atkinson, a Medical Practitioner, conducts a specialist practice as a Neurosurgeon and Pain Management

Specialist. He saw Tearoiti on 13 October 2011 after which he released a report (dated 27 October 2011) [Exhibit 7].

[50] In the "Executive Summary" (at page 4) of the report, Dr Atkinson recorded the following findings:

• "Ms Tearoiti suffered a minor closed head injury on 26 May 2009. She did not suffer any irreversible organic brain injury. There was no loss of consciousness.

• In the absence of any organic brain injury, it would be most unlikely that Ms Tearoiti would suffer an epileptic turn or a syncopal attack the following day while driving a motor vehicle.

• The reported incident on 26 May 2009 did not contribute in any way to the subsequent motor vehicle accident on 27 May 2009.".

[51] In evidence-in-chief, Dr Atkinson gave evidence regarding the types of symptoms present when diagnosing

someone with concussion. The symptoms could include:

• suffering a head injury, the type of trauma that could cause a brain injury; • dizziness; • forgetfulness; • visual changes; and • fatigue.

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[52] On consideration of the material placed before him in respect of Tearoiti, it was his opinion that the minor head injury she suffered on 26 May 2009 was not sufficient to have caused a significant concussion. In relying on the observations of Miller and Weber, there was a lack of evidence to support that Tearoiti was concussed. Dr Atkinson did not accept that because a person has a headache that they have sustained a mild traumatic brain injury giving evidence there were "many hundreds" of different causes for headaches.

[53] On consideration of the incident on 26 May 2009 and the subsequent actions of Tearoiti that evening, he did not

accept that they gave support for a post-concussion syndrome. [54] Under cross-examination, Dr Atkinson acknowledged that his evidence on the symptoms of concussion were not

necessarily all going to be experienced at the same time or, in some cases, some of the symptoms may not be experienced at all [Transcript p. 2-41]. On the circumstances regarding Tearoiti not feeling comfortable in driving home on the evening of 26 May 2009 being an indicator of the concussion, Dr Atkinson accepted "it's possible" [Transcript p. 2-42].

[55] Dr Atkinson indicated that in preparing his report, it would have been helpful if he had been provided with the

weight of the plastic storage containers, the number of containers, and the height from which they fell. On being informed that each container weighed 1.6 kilograms and had fallen from a height between 10 and 20 centimetres, his evidence was "that's stretching things a bit, isn't it" and "it's most unlikely that's caused concussion". Dr Atkinson did not accept that five kilograms or more falling from the same height would have resulted in a minor head injury [Transcript p. 2-43].

[56] On the actions of Tearoiti following the incident on 26 May 2009, Dr Atkinson accepted that it was an

after-effect of her experience but did not accept it related to any organic brain damage [Transcript p. 2-45]. He accepted the proposition that 50 percent of people with a minor closed head injury would develop post-concussion syndrome [Transcript p. 2-46].

[57] The light duties (completing paperwork) undertaken by Tearoiti following the incident of 26 May 2009 rather

than her normal duties were, in the opinion of Dr Atkinson, "more than normal duties for a person who'd had concussion because they wouldn't be able to do it. You know, I'd consider for someone with concussion this'd be more taxing to what she normally does" [Transcript p. 2-49].

[58] Dr Atkinson clarified his evidence (given previously) that 50 percent of people who sustain a minor closed head

injury will experience post-concussional syndrome by adding "We consider 50 percent of them are of a psychological basis and 50 percent may have an organic basis.". Dr Atkinson went on to reiterate that in his opinion Tearoiti did not have post-concussional syndrome [Transcript p. 2-56].

[59] In re-examination, Dr Atkinson when provided with details that Tearoiti left home for work at 5.00 a.m. on

26 May 2009 and was picked up at 6.00 p.m. thought that this was a "very possible reason for falling asleep [in the car]". He confirmed his evidence that the storage tubs being 1.6 kilograms each and falling a distance of approximately 10 to 14 centimetres would not have caused organic brain injury [Transcript p. 2-57].

Miller [60] Miller, the Manager of Woolworths Birkdale store, had been in the employ of Woolworths for approximately

38 years and in May 2009 was the Store Manager at Sunnybank Hills. In addition, he was qualified in First Aid having received a range of formal training from the age of 16 which continued to be updated through a range of providers. Over that time, he had been involved in either treating or assessing injuries ranging from minor knocks to more serious incidents causing hospitalisation.

[61] On 26 May 2009 whilst involved in training at the Sunnybank Hills store, he was informed by Weber that

Tearoiti had been hit on the head by some tubs in the "deli" cold room. He went to the office where Tearoiti had been taken and immediately observed that she was holding an icepack against her head, in the hairline above the right ear. He performed tests from a visual and pressure perspective and asked a number of questions that were answered fluently by Tearoiti. An inspection of the head area said to have been injured produced no evidence of either lacerations or lumps/bumps to any part of the scalp. After thoroughly examining Tearoiti he asked if she was experiencing any pain and was advised that she was feeling a little numb to which he suggested the icepack be removed. It was his evidence that the numbness had been replaced by the normal feeling in the time they were discussing the incident as a consequence of removing the ice pack.

[62] Tearoiti, according to Miller, made no complaint about dizziness or having been knocked unconscious. He could

not recall if Tearoiti had mentioned attending a Doctor and, based on his examination, there was not any requirement for her to be sent to a Doctor. Arrangements to see a Doctor could have been facilitated if necessary as there was a medical practice in the centre.

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[63] An inspection of the area where the incident occurred was undertaken with Tearoiti walking down a number of stairs (unassisted) showing no signs of issues affecting her balance. He observed that the top shelf was about 180 centimetres above the floor. Tearoiti (whilst standing) gave a detailed explanation as to what had happened and had no difficulty responding to questions put to her about the incident. It was his recall that four or five plastic tubs were involved. Upon a return to the office there was discussion about "filling out some paperwork from the incident" and he suggested that Tearoiti might undertake some paperwork from the delicatessen rather than go back down to the work area.

[64] During the course of the afternoon, he checked on Tearoiti on two or three occasions and found her to be okay.

She had made no complaints about dizziness and she was able to maintain an appropriate conversation with him. On the matter of fatigue, Miller stated:

"The only thing with fatigue was that Trish [Tearoiti] used to get tired sometimes. She'd make some comments - that was even prior to - to that incident occurring, sometimes from the shifts she was doing" [Transcript p. 1-67].

[65] With regard to the paperwork being undertaken by Tearoiti, according to Miller there was no issue raised by her

about having difficulties concentrating on that work. When he left the store at the end of the day (between 5.30 and 5.45 p.m.) Tearoiti was still in the store.

[66] Under cross-examination, Miller was taken to the incident report [Exhibit 8] of which he was one of the

signatories. The injury to Tearoiti on that form was identified as a minor injury and in signing off on the form agreed with that status.

[67] Miller's evidence on being called out of training to see Tearoiti on 26 May 2009 was that it was normal

procedure as he was one of the First Aid Officers in the store. Miller conceded that in September 2011 he provided a statement which included reference to Tearoiti complaining that her head hurt on 26 May 2009 [Transcript p. 2-72]. Miller accepted that having ice on an area recently exposed to trauma was done "to potentially reduce if there was going to be any swelling" [Transcript p. 2-74]. His examination of Tearoiti's scalp had occurred at 2.30 p.m. and he conducted no further examination later that day.

[68] Miller was questioned about the later effects that may rise as a result of a head injury and accepted the

proposition that head injury symptoms can manifest some hours later [Transcript p. 2-76]. [69] Discussions with Tearoiti on the day of the injury about how she was to get home were, according to Miller,

made from a duty of care perspective with the same offer being made to someone who may have had a cut hand [Transcript p. 2-78]. On having Tearoiti undertake the assigned paperwork, it was not seen by Miller as light duties, it was just work that needed to be done [Transcript p. 2-79]. Miller was taken to a statement [Exhibit 10] given by him on 13 March 2012 where he had stated:

"I do not recall the plaintiff asking to be relieved from her duties due to her injury. To the best of my knowledge I suggested Ms Tearoiti should not return to the deli and that she should sit down and complete some deli paperwork, which was an aspect of her - Ms Tearoiti's work duties.".

[70] Miller could not recall why he had specifically made those comments but it would have been in the back of his

mind about duty of care in terms of somebody who was injured [Transcript p. 2-82]. [71] In re-examination, Miller's evidence was that when he last saw Tearoiti on 26 May 2009 there had been no

change to her presentation, demeanour or appearance from 2.30 p.m. Weber [72] Weber, a Store Services Officer, had been in the employ of Woolworths for 31 years and in May 2009 was

working at the Sunnybank Hills store as a Store Services Manager. In the course of that employment she was line management for Tearoiti and would communicate with her regularly in the course of the day. On 26 May 2009 she received a call to the service deli from Tearoiti who informed her that she had been hit on the head with some plastic containers. She worked through the procedures then accompanied Tearoiti to the upstairs office. They were required to ascend three flights of stairs and her recollection was that Tearoiti had no difficulty with the stairs. Once upstairs, ice was obtained for the bump on her head and Miller was contacted and subsequently performed a number of procedures from a First Aid perspective. During that process Tearoiti had complained to her about having a headache but made no complaints about dizziness or concentration.

[73] They (Miller, Tearoiti, and Weber) went back to the cold room where Tearoiti explained what had happened and

they went back upstairs. Weber's evidence was that Tearoiti did not appear to have any difficulties transporting herself up or down the stairs. Tearoiti (with Weber's assistance) completed an incident report with much of the handwriting being undertaken by Weber who also signed the form. She was present when Tearoiti left to go

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home with Emanuel after exiting down the back stairs. There was a brief conversation where Tearoiti joked around a bit about going home and having a sleep.

[74] Under cross-examination, questions were put in relation to the incident report form and the "ticking of the box"

requiring an investigation of the category four incident which, according to Weber, was a process for all incidences [Transcript p. 2-93] which was documented in a company policy publication [Transcript p. 2-94]. Weber gave evidence about her involvement once contacted by Tearoiti which included providing her with an icepack. Weber accepted that Tearoiti made arrangements for Emanuel to take her home because she was not well enough to drive home [Transcript p. 2-95]. Weber thought it was a bit odd that Emanuel did not pick her up earlier [Transcript p. 2-96]. It was Weber's evidence that when someone reported an injury to her Miller would always be contacted, subject to him being in the store [Transcript p. 2-99]. Weber did not recall Miller attending Tearoiti at any other time that afternoon. The paperwork assigned to Tearoiti was work she would normally undertake and, in this instance, had performed the work unsupervised. Weber had no knowledge of the standard of the work completed [Transcript p. 2-101].

[75] Weber recalled Tearoiti and Emanuel leaving work through the bakery area and speaking to them. Weber had no

recall about whether there was discussion around Tearoiti seeing a Doctor [Transcript p. 2-102]. [76] In re-examination, Weber had no recall of Emanuel and herself having a conversation about a Doctor and

believed if he had made mention of a Doctor it was likely she would recall that conversation [Transcript p. 2-103].

Dr Ohlrich [77] Dr Ohlrich, a Specialist Neurologist of some 39 years standing, at the request of WOW Care Queensland

(Woolworths Limited) saw Tearoiti on three occasions which resulted in two reports being provided on 10 September 2010 [Exhibit 11] and 4 October 2010 [Exhibit 12]. On 28 March 2013 Dr Ohlrich participated in a teleconference with Peter O'Neill (Barrister) and Ruth Jamieson (Appeals Officer - Q-COMP). A file note of the teleconference was prepared and signed by Dr Ohlrich which confirmed it was an accurate summary of the opinions expressed by him in the teleconference and that he continued to hold those opinions. The file note was tendered in the proceedings [Exhibit 13].

[78] In the report of 10 September 2010 [Exhibit 11] at page 3, Dr Ohlrich recorded the following comment:

"Ms Tearoiti told me that she does not remember the accident and in fact does not remember getting up on the morning of the accident and remembers nothing of the day of the motor vehicle accident.

She does remember a minor head injury on the day before when empty storage tubs fell on her head while she was at work. However, she was not knocked unconscious and her memory for events after this episode seems to be satisfactory.".

[79] Dr Ohlrich, in evidence, confirmed his notes taken at the time of the consultation were in accordance with the

information contained in the report. The significance of this history indicating that Tearoiti was not knocked out in the incident meant that it was a minor head injury and that she had a memory of incidents that occurred after the head knock which highlighted the fact the injury was quite minor, there was not any post-traumatic amnesia and nothing to suggest any brain injury.

[80] The second report [Exhibit 12] was prepared after seeing Tearoiti on two occasions with Emanuel being present

at the second consultation. Dr Ohlrich's reason for conducting the second consultation was the need to re-evaluate her with Emanuel. At that consultation Emanuel did not indicate to him that there was any concern about the bang on the head on 26 May 2009. In any event, what had been subsequently said by Emanuel about Tearoiti complaining of a headache, not being her usual self, and forgetting her key, did not alter his opinion about the nature of the injury.

[81] There was a description given to Dr Ohlrich about the weight of the storage tubs and the distance they had fallen

(similar to the information provided to Dr Atkinson) which involved him being asked whether an incident of that nature would cause a serious head injury, to which he replied "No, no, seems quite minor, doesn't it" [Transcript p. 3-7].

[82] The file note [Exhibit 13] contained material that confirmed the history provided by Tearoiti about her

satisfactory recall of the events of 26 May 2009. On the balance of probability Dr Ohlrich believed it was unlikely the head knock on 26 May 2009 was causally related to the motor vehicle accident of 27 May 2009 although he could not, however, exclude that possibility. Dr Ohlrich confirmed that the history provided by Tearoiti was consistent with that given by Weber and Miller.

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[83] On the seriousness or otherwise of the incident of 26 May 2009, the file note at point 7 stated:

"Dr Ohlrich confirmed that given that Ms Tearoiti:

• was able to stay at work following the incident on 26 May 2009; • was able to show Mr Miller and Ms Webber [Weber] where and how the incident occurred; • was able to complete paperwork and converse with Ms [Mr] Miller,

was an indication that the blow to the head she suffered on 26 May 2009 was not a serious one.".

[84] Dr Ohlrich's evidence regarding the comment (file note - point 4) of not being able to exclude the possibility that

the head knock (from the previous day) was not causally related to the motor vehicle accident had been made as a result of being "bothered" by the Police report which gave no good explanation why the vehicle seemed to go out of control. When informed that Tearoiti had pleaded guilty to driving without due care and attention in relation to the accident, his evidence was this did assist in assuaging some of his concerns.

[85] Under cross-examination, Dr Ohlrich accepted his reports of 10 September and 4 October 2010 were for the

purposes of Tearoiti's permanent impairment arising from the injuries suffered in the motor vehicle accident that were being dealt with under the statutory scheme. In compiling Tearoiti's history for the purposes of the first report, Dr Ohlrich accepted that Tearoiti had not provided a full history around the 26 May 2009 incident and he had found out additional information in statements made by Emanuel. He was of a view that the additional information did not influence him particularly [Transcript p. 3-10].

[86] Dr Ohlrich accepted that the symptoms for post-concussional syndrome included headaches, fatigue (possibly)

and confusion or altered state of consciousness. [87] On the evidence of Dr Tomlinson that 40 to 80 percent of people who sustain a minor closed head injury would

develop post-concussional syndrome, Dr Ohlrich disagreed with that opinion describing it as "obviously nonsense" [Transcript p 3-14]. He also disagreed with the opinion of Dr Atkinson on the 50 percent figure arising from a minor closed head injury.

[88] Dr Ohlrich did not accept Tearoiti not wanting to drive home on 26 May 2009 was necessarily related to her

being fatigued following the head knock nor did that apply to her falling asleep on the way home. [89] Significant questioning occurred regarding the possibility of the head knock and the condition of Tearoiti

afterwards being causally related to the motor vehicle accident the following day and, whilst Dr Ohlrich conceded some of the scenarios, his evidence remained that he did not believe that the minor head injury was anything but a minor head injury with no causal connection to the motor vehicle accident.

[90] Dr Ohlrich conceded that there was a possibility although unlikely that Tearoiti could have been suffering from

the after effects of the head injury. He went on to say:

"I was actually amazed that the other witnesses could say that - you know, that the - I think that Dr Scott Campbell and Dr Tomlinson and - I just don't know how they reached that conclusion. They just seemed to pull it out of the air" [Transcript p. 3-24].

[91] In re-examination, Dr Ohlrich indicated that whether Tearoiti had a lump or otherwise on her scalp, did not particularly influence him one way or the other. If there was not a lump then that probably lessoned the significance of the minor head injury [Transcript p. 3-25]. He gave evidence that she had not been influenced by fatigue but a 12 hour shift at work (on 26 May 2009) and getting up early could have explained the fatigue. Dr Ohlrich confirmed that in his opinion the head injury of 26 May 2009 was quite minor [Transcript p. 3-26].

Submissions Q-COMP [92] Extensive written submissions (40 pages) were provided by Q-COMP that, in the first instance, identified the

chronology of events and the onus of proof falling to Tearoiti to establish there had been an error in the Q-COMP Review Unit's decision.

[93] There was no issue that Tearoiti, at the time she sustained injuries in the motor vehicle accident on 27 May 2009,

was a "worker" in accordance with the Act. Effectively the only issue for determination was whether there was a causal link between the injury Tearoiti sustained on 26 May 2009 when some plastic tubs fell on her head and the motor vehicle accident the following day when she was travelling to work. It needs to be determined

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whether the injuries sustained in the motor vehicle accident arose out of, or in the course of, employment and whether her employment at Woolworths can be seen to be a contributing factor to the injury.

[94] It was the contention of Q-COMP that on the evidence before the Commission a case had not been made that

there was any causal link between a very minor head knock received by Tearoiti on 26 May 2009 and the motor vehicle accident that occurred the following morning.

[95] The background and history of both the Appeal and the Notice of Claim for Damages was set out in the

submission with the Commission being encouraged to place greater weight on the evidence around the incident of 26 May 2009 from Dr Ohlrich than that of Tearoiti who had no reliable memory of either of the events of 26 or 27 May 2009. Despite the claim by Tearoiti in the Notice of Claim that whilst transferring boxes of stock from a roll cage to shelves and that all of a sudden three or four storage containers fell from the top shelf striking her on he right side of the head causing her to briefly lose consciousness, there was no evidence available that would confirm Tearoiti was knocked unconscious. The evidence of Weber was that following the incident of 26 May 2009 at all times Tearoiti conversed in a normal manner and had no difficulty walking up three flights of stairs shortly after the incident.

[96] Tearoiti was examined by Miller (trained in First Aid) who found that Tearoiti had not demonstrated any

symptoms of a post-concussional syndrome, had no slurred speech, nor demonstrated any difficulty walking through the store to the cold room to show Miller the incident scene. Miller also found on checking her head that there was an absence of any lacerations. In evidence, Miller confirmed he had extensive experience and training in First Aid and had been involved in up to 40 incidents where people had suffered various levels of head injuries. In the contact between Miller and Tearoiti, there had been no complaint of being knocked out, dizziness or of her head feeling numb. Tearoiti was made an offer of medical treatment at a medical centre but declined the offer. Tearoiti had not displayed any change in demeanour and was lucid and quite conversational two to three hours after the incident had occurred. In that time, Tearoiti undertook duties in the form of completing paperwork and, according to the evidence of Weber, made no complaint about being unable to complete that task.

[97] The submission canvassed the evidence of Tearoiti, concluding that due to the difficulties associated with her

memory of events (which Q-COMP accepted as genuine), her evidence should be treated with a significant amount of caution and where her evidence was contradicted by witnesses, such as Miller and Weber, their evidence should be preferred.

[98] In regards to the evidence given by Emanuel, the submission went to some length in highlighting parts of his

evidence that were vague and inconsistent, both internally and with the evidence of other witnesses. [99] There was a question raised in respect of the rule in Browne v Dunn1 with authorities cited that included:

• Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation2; • Seymour v Australian Broadcasting Commission3; and • Richardson v Q-COMP4.

[100] In terms of the inconsistencies associated with Emanuel's evidence, the submission identified areas that included:

• timing of events not consistent with other evidence; • his arrival at the store and discussions with Weber; • the noticing of an "egg sized" lump on Tearoiti's head (left side) not witnessed by anyone else, including

Rodak who was with him at the store; and • alleging that he had arrived home on 26 May 2009 before Rodak, which was completely inconsistent with her

evidence. [101] It was submitted that the extent of the inconsistencies with his evidence was such that the Commission should

give no real weight to Emanuel's evidence. [102] The evidence of Rodak was largely irrelevant and should also be given little weight by the Commission.

1 Browne v Dunn [1893] 6 R 67 2 Allied Pastoral Holdings Pty Ltd v Commission of Taxation [1983] 1 NSWLR 1 3 Seymour v Australian Broadcasting Commission [1990] 19 NSWLR 219 4 Richardson v Q-COMP [2007] 184 QGIG 194

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[103] On the documentary evidence before the proceedings in the form of the records from the Queensland Ambulance Service and the Queensland Police Service, it was open for the inferences to be drawn that:

• Tearoiti was running late for work on 27 May 2009; • there was no mechanical fault with either of the vehicles involved in the accident on 27 May 2009; • the right rear tyre of Tearoiti's vehicle was in an unsatisfactory condition; • the evidence is entirely consistent with there being driver error on the part of Tearoiti; and • the description of the accident was not consistent with Tearoiti "blacking out".

[104] In summation of the medical evidence, the evidence from Dr Ohlrich, who provided three reports (10 September

2010, 4 October 2010 and a file note of 28 March 2012) was that the blow to Tearoiti's head on 26 May 2009 was not a serious one and that she had not experienced an altered state of consciousness. Dr Ohlrich opined that the evidence from Emanuel about what occurred at their home on the evening of 26 May 2009 supported the position that the events of 26 and 27 May 2009 were not causally linked. Dr Ohlrich's evidence was not in any way diminished in the course of cross-examination. On the proposition of Dr Tomlinson that 40 to 80 percent of persons who suffer a minor closed head injury develop a post-concussional syndrome, it was his view that to attribute a percentage in that way was not a useful concept and Tearoiti's behaviour immediately following the incident on 26 May 2009 made the proposition of concussion a "nonsense". The attempt to draw a connection between the head injury and the motor vehicle accident the next day was described in evidence by Dr Ohlrich as "fallacious reasoning".

[105] Dr Atkinson, in his report (27 October 2011) had opined that:

"… Ms Tearoiti suffered a minor closed head injury on 26 May 2009. She did not suffer an irreversible organic brain injury. There was no loss of consciousness. In the absence of any organic brain injury, it would be most unlikely that Ms Tearoiti would suffer an epileptic turn or syncopal attack the following day while driving a motor vehicle. The reported incident on 26 May 2009 did not contribute in any way to the subsequent motor vehicle accident on 27 May 2009.".

[106] Dr Atkinson concluded his report by stating:

"I conclude that Ms Tearoiti suffered a minor closed head injury in the incident on 26 May 2009. The reasons for this opinion are: • On the day, she had a clear memory for the details of the incident. • She was not knocked unconscious. • There was no concussion. • Assessment by a First Aid Officer excluded any evidence of cerebral irritation. • She continued to work on paperwork for one hour prior to being picked up by her partner.".

[107] In oral evidence, Dr Atkinson affirmed the content of his report and supported the findings of Miller on 26 May 2009. Under cross-examination, he had noted Tearoiti's performance with paperwork after the head incident would have required more "cerebral concentration" and her ability to perform the work was inconsistent with having sustained a concussion. Dr Atkinson had, in re-examination, noted that the mechanism of injury regarding the tubs falling some 14 centimetres to strike Tearoiti would not cause organic brain damage.

[108] The evidence of Dr Tomlinson that Tearoiti had suffered concussion following the incident of 26 May 2009

which more likely than not caused her to have an altered sensorium resulting in her being involved in the motor vehicle accident was without any compelling evidence. Indeed there was no evidence at all to support Tearoiti had suffered a concussion nor that there was a causal link to the accident the following day. The failure of Dr Tomlinson to provide any basis for his opinion that the 40 to 80 percent of people who suffer a mild head injury suffers from post-concussional syndrome should result in virtually no weight being given by the Commission to this claim.

[109] There was a question over the quality of Dr Tomlinson's evidence which was described as being non-responsive

at times and, in the case of the actual mechanism of injury on 26 May 2009, it was described as "illuminating" when compared to the emphatic responses of Dr Ohlrich and Dr Atkinson. The Commission was urged to reject Dr Tomlinson's opinion on the level of Tearoiti's minor head injury.

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[110] The history provided to Dr Tomlinson was inconsistent with the history Tearoiti had given Dr Ohlrich and was inconsistent with the observations of Miller and Weber which left Dr Tomlinson without a clear understanding of the incident on 26 May 2009 resulting in his conclusions being made "in a vacuum".

[111] With regards to the medical evidence before the proceedings, the Commission was taken to a number of

authorities that identified the requirements that must be considered when assessing the value to be placed on such medical evidence. The authorities included:

• R v Turner5; • Pollock v Wellington6; • King v Pampano & Ors7; • Harrington-Smith v Western Australia (No. 7)8;and • Sarkis v Summit Broadway Pty Ltd trading as Sydney City Mitsubishi9.

[112] The authorities were said to, amongst other things, highlight that Dr Tomlinson had adopted fallacious and

flawed reasoning processes in reaching his medical conclusion regarding the injury suffered by Tearoiti on 26 May 2009. Additionally, there were many difficulties apparent in Dr Tomlinson's evidence that would make it a safe course for the Commission to largely set aside his opinion and prefer the stronger evidence of Dr Ohlrich and Dr Atkinson which was that the motor vehicle accident that occurred on 27 May 2009 had no causal link or involvement with the incident at work on 26 May 2009.

[113] There was a question over the credibility of the principal witnesses called by Tearoiti with their evidence

described as inherently unsatisfactory. Whereas the evidence from witnesses called by Q-COMP was direct and forthright given in an honest way for the purposes of assisting the Commission. It was strongly submitted that Tearoiti, through no fault of her own, had no clear recollection of events and therefore the evidence of Miller and Weber should clearly be preferred. The submission was even stronger regarding Emanuel's evidence that conflicted with that of Miller and Weber.

[114] It was submitted that the Commission, in determining the Appeal, could not be satisfied that the Common Law

test of the balance of probabilities had been met, with a number of authorities cited that included:

• Bonnington Castings Ltd v Wardlow10; • MacArthur v WorkCover Queensland11; • Carr v Baker12; • Seltsam Pty Ltd v McGuiness13; • Rhesa Shipping Co SA v Edmunds and Another14; • Briant v Allan & Anor15; and • Ocean Harvester Holdings Pty Ltd v MMI General Insurance Limited16.

[115] On the evidence before the proceedings, the Commission, it was submitted, could not have the necessary level of

satisfaction or persuasion that Tearoiti had made out her case. There was no evidence presented that established some impairment of Tearoiti's reaction times that had given rise to the motor vehicle accident of 27 May 2009 with only the speculative opinion of Dr Tomlinson that the 26 May 2009 incident was causal of that accident.

[116] There was significant difficulty for Tearoiti in that there were any other number of plausible explanations for

how the accident had occurred on 27 May 2009 which included driver error from an inexperienced provisional licence holder and when witness statements relating to the motor vehicle were considered, the Commission could feel a degree of safety in making that factual finding.

5 R v Turner [1975] QB 834 6 Pollock v Wellington [1996] 15 WAR 1 7 King v Pampano & Ors [2001] WADC 237 8 Harrington-Smith v Western Australia (No. 7) [2003] 130 FCR 424 9 Sarkis v Summit Broadway Pty Ltd trading as Sydney City Mitsubishi [2006] NSWCA 358 10 Bonnington Castings Ltd v Wardlow [1956] AC 613 11 MacArthur v WorkCover Queensland [2001] QIC 21 12 Carr v Baker [1936] 36 SR (NSW) 301 13 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 14 Rhesa Shipping Co SA v Edmunds and Another [1985] WLR 948 15 Briant v Allan & Anor [2002] QCA 157 16 Ocean Harvester Holdings Pty Ltd v MMI General Insurance Limited [2003] QSC 262

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[117] It was submitted that Tearoiti had not made a case that the injuries from the motor vehicle accident arose out of, or in the course of her employment, and in particular the Commission could not be satisfied that her employment was a significant contributing factor to the injuries occurring.

[118] It was finally submitted that the Appeal should be dismissed and the decision of Q-COMP dated 22 March 2012

should be confirmed. [119] Costs of defending the Appeal were sought. Tearoiti (Appellant) [120] The written submissions on behalf of Tearoiti firstly indicated there was an acceptance with the Q-COMP

submissions in respect of the onus and the summary of issues for determination. [121] The central issue for determination was the question of a link between an incident that occurred in Tearoiti's

place of work on the afternoon of 26 May 2009 and a motor vehicle accident that occurred the following morning as she was travelling from home to her place of employment.

[122] The case for Tearoiti relied upon lay witness evidence regarding observations and recorded symptoms

experienced by her following the incident at work on 26 May 2009 and the evidence of Dr Tomlinson who concluded in his report that those observations recorded and the symptoms displayed to the lay witnesses were consistent with Tearoiti having sustained a minor closed head injury at work on 26 May 2009. Dr Tomlinson went on to opine that the most probable explanation of the motor vehicle accident on 27 May 2009 was that Tearoiti suffered an "altered sensorium" as a consequence of "post-concussional syndrome" which arose as a consequence of a concussion sustained the previous day.

[123] In terms of witness testimony, it was argued that both the lay persons and the experts in this matter gave

consistent evidence as to the key events in respect of the 26 May 2009 incident and there were no differences between the parties as to the facts of a motor vehicle accident the following day.

[124] In addressing the evidence of Tearoiti, it was clear due to the severity of her injuries she had no independent

recollection of events that occurred on 26 or 27 May 2009 with it being the case Tearoiti could not, with any degree of certainty or reliability, state the circumstances relating to the events of both days. This concession is a factor to her credit in that rather than favourably reconstruct events, she frankly conceded she had no independent recall.

[125] The evidence of Miller and Weber (called by Q-COMP) to some degree provided insight into the nature of the

injury reported by Tearoiti, the circumstances under which it occurred and her reported symptoms following the incident. Whilst their evidence for the most part was reliable, the submission suggested that in some places was affected by personal scepticism about Tearoiti's claim. It was their evidence upon which Dr Tomlinson based his opinion which provides for a factual basis upon which the Commission could accept her claim.

[126] It was not of contest that the incident of 26 May 2009 was reported to Weber and that the incident report

confirmed that five storage tubs (weighing 1.68 kilograms per tub) had fallen and hit Tearoiti on the head. First Aid was immediately provided in the form of arranging for an ice pack to be placed on her head and Miller was requested to attend. Miller, who stated he had expertise in First Aid which was accepted as extensive but his skills were way short of a trained Neurosurgeon, confirmed an ice pack had been applied however after conducting an inspection was unable to find any sign of a cut or swelling but did concede in cross-examination that the ice pack would have had the effect of reducing any swelling that may have been apparent or emerging at that time. Miller went on to concede that this was the only time he undertook an inspection of her head, therefore he was unable to confirm or dispute the presence of a lump on Tearoiti's head later that afternoon.

[127] Whilst Miller had attempted to "play down" his reaction to his observation of Tearoiti, he had made enquiries as

to how she was to get home from work, with a view to ascertain whether she would be driving or otherwise which, in that context, is important as to how she was feeling after the incident.

[128] There was some reluctance by both Miller and Weber to acknowledge that Tearoiti was assigned to perform light

duties (albeit, typically associated with her role) but it was a measure adopted by Store Management as a precaution to ensure that her condition was not further exacerbated. Further that Miller felt it appropriate to check on Tearoiti for the remainder of her shift was an indication that he anticipated, however remotely, the possibility of deterioration in her condition over time.

14

[129] The assessment made by Miller and Weber following the incident on 26 May 2009 was said to be consistent with Tearoiti:

• sustaining a blow to the head when five storage tubs fell onto her from an upper shelf in the store room; • complaining of a headache following this incident; • expressing a feeling of being unsafe to drive home as a consequence of this injury; • requiring some measure of caution to be taken in the manner in which she performed her duties for the

remainder of that shift; and • requiring Miller "check" on her through the afternoon.

[130] There was no clear evidence put before the Commission as to the height of the shelf from which the tubs fell

onto Tearoiti's head with the argument being made that, at it's shortest, it was a distance of 14 centimetres if she was standing upright at the time. However there was no reliable evidence that she was standing at the time which would have the effect of changing the distance in question. The combined weight of the tubs was 8.4 kilograms which was not an insignificant weight to strike the head from any distance.

[131] With regards to the paperwork undertaken by Tearoiti following the injury to her head, there was an absence of

evidence to establish how productive she was in that two hour period, what work was performed, the efficiency or adequacy of the work and what actual time was spent on that work. Accordingly, on the material before the Commission, it is difficult to appreciate the extent, adequacy or quantity of the paperwork completed at the time.

[132] Little was said to turn on the evidence of Emanuel in respect of the delay in collecting Tearoiti from work as it

was most likely that they may have lacked the insight into the potential (and actual) seriousness of the after effect of a blow to the head. However this does not affirm that the head injury was minor. Ultimately, the only real point of significance was Tearoiti arranged for Emanuel to collect her from work and the blow to the head was significant enough for her not to feel comfortable driving home that afternoon.

[133] There was some conjecture between the lay witnesses as to the manner in which Tearoiti left the workplace on

26 May 2009 and how the various parties encountered each other on the day, but these were minor differences and little or nothing turns on the difference. The matter in question had occurred almost four years earlier and memories may have faded over such a period of time.

[134] It was conceded that in cross-examination Emanuel had indicated the lump he observed on the side of Tearoiti's

head was in fact on the side opposite to the side that the tubs had struck. However with the passage of time and the difficulty in identifying those recollections in abstract, he simply had been mistaken in giving his evidence about which side of the head was injured. The failure by Weber to notice a lump does not exclude the possibility that a lump was there.

[135] There was uncontested evidence in respect of the trip home and the events at home that night, although it was

acknowledged that in the course of cross-examination there was some inconsistencies elicited in the evidence of Emanuel and Rodak with respect to the order of events of that afternoon and evening. However, the inconsistence mattered little and had no relevance to the facts. In terms of importance, the most compelling and important aspect of Emanuel's evidence was his observation of Tearoiti's unusual fatigue and this was undisturbed by cross-examination.

[136] It was a matter of record that Tearoiti sustained serious injuries arising from the motor vehicle accident of

27 May 2009 although there was an absence of direct evidence about this event with the only information being the content of the Queensland Police and Ambulance reports tendered in the proceedings.

[137] The medical evidence provided gave a clear acceptance by Dr Tomlinson and Dr Atkinson that a minor closed

head injury will (in some degree of cases) give rise to "post-concussional syndrome" although they differed as to the percentage of persons who statistically go on to develop post-concussional syndrome. They also agreed that post-concussional syndrome could cause altered sensorium and other symptoms including fatigue, loss of concentration and headache.

[138] Dr Tomlinson was satisfied that Tearoiti had suffered a minor closed head injury on 26 May 2009 and then

theorised in all probability, in light of the work injuries which had led to post-concussional syndrome and on to altered sensorium, led to the motor vehicle accident.

[139] It was acknowledged there existed a significant point of difference between the opinions of Dr Tomlinson and

Dr Atkinson in that Dr Atkinson had not accepted that Tearoiti had sustained "minor organic brain damage" consequently not accepting she had developed post-concussional syndrome. Irrespective of the difference in the statistical positions of Dr Tomlinson and Dr Atkinson, it was submitted it was open to make a finding that Tearoiti developed post-concussional syndrome.

15

[140] Dr Ohlrich stopped short of rejecting "entirely" the connection between minor closed head injury and post-concussional syndrome although he described Dr Tomlinson's opinion on this point as nonsense and similarly did not accept the evidence of Dr Atkinson. On this point his evidence was said to less reliable than the evidence of the other two Doctors.

[141] There were levels of inconsistency with the evidence of Dr Ohlrich in relation to his report and oral evidence

which was sufficiently inconsistent to make it less reliable than other medical evidence and is noted that his expertise does not extend to Neurosurgery unlike the other Specialists.

[142] The onus is on Tearoiti to demonstrate, on the balance of probabilities, that there was a causal link between the

injury she sustained on 26 May 2009 and the motor vehicle accident on 27 May 2009. The Commission was requested to accept the theory espoused by Dr Tomlinson that:

• Tearoiti sustained a minor closed head injury on the afternoon of 26 May 2009 when five storage tubs

weighing 8.4 kilograms fell on her head; • as a consequence of the minor closed head injury Tearoiti developed post-concussion syndrome; and • in all probability it was the effects of post-concussion syndrome that led to Tearoiti's motor vehicle accident

on the morning of 27 May 2009. [143] It was conceded that Tearoiti's case will, if accepted, be at the perimeter of the notion of "balance of

probabilities" as the absence of any direct evidence as to the cause of the motor vehicle accident means that a number of competing inferences exist.

[144] A number of authorities were cited in respect of "balance of probabilities" which do not support the

non-exclusion of the claim notwithstanding the existence of competing inferences in respect of the motor vehicle accident that occurred on 27 May 2009. They included:

• Seltsam Pty Ltd v McGuiness and Another; James Hardie & Coy Pty Ltd v McGuiness and Another17; • Cole v Commonwealth of Australia18; • Roulstone v Tetley19; • Fernandez v Tubemakers of Australia Ltd20; • Jones v Great Western Railway Co21:

"The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have validity as legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.";

• Carr v Baker22; • Caswell v Powell Duffryn Associated Collieries Ltd23:

"Inference must carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture."; and

• Lithgow City Council v Jackson24.

[145] The Queensland Police and Ambulance reports on the accident allowed for the following to be clearly concluded:

• Tearoiti was not affected by drugs or alcohol; • the vehicle did not have any significant mechanical defects; • Tearoiti was not exceeding the speed limit or driving erratically; • Tearoiti, although a relatively new driver, had no (significant) history of driving offences; • visibility was good;

17 Seltsam Pty Ltd v McGuiness and Another; James Hardie & Coy Pty Ltd v McGuiness and Another [2000] NSWCA 29 18 Cole v Commonwealth of Australia [1961] 62 SR(NSW) 700 19 Roulstone v Tetley [1966] 2 NSW 389 20 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 21 Jones v Great Western Railway Co [1930] 47 TLR 39 22 Carr v Baker [1936] 36 SR(NSW) 301 23 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 24 Lithgow City Council v Jackson [2011] HCA 36

16

• road conditions were good; • the road was straight; • no other vehicle triggered the actions of Tearoiti's vehicle; • no pedestrians or animals were observed on the road in Tearoiti's path; and • there was no evidence of any suicidal intent of Tearoiti.

[146] In absence of any of the factors identified in the report having relevance to the accident, it was submitted that the

only remaining scenarios involve:

• either a careless lapse in attention by Tearoiti; • a fatigue related lapse of attention; or • loss of consciousness (total or partial) by Tearoiti.

[147] There was no evidence from a properly qualified expert in crash forensics to assist the Commission and the

guilty plea by Tearoiti to the traffic offence, on her evidence was that it was the easiest course to take in the circumstances with no expectation of any serious consequences for her. In the absence of any recall by Tearoiti which may give the impression of "carelessness verses fatigue/loss of consciousness" it was submitted that the chronological proximity of the minor closed head injury at work the day before the motor vehicle accident tips the balance of probabilities in her favour.

[148] In concluding, there were said to be three critical facts that were not contradicted, in fact the first two were

established by Q-COMP's lay witnesses. They were identified as:

• Tearoiti suffered a headache that persisted until the next morning; • Tearoiti did not feel comfortable to drive herself home in the aftermath; and • Tearoiti displayed uncharacteristic fatigue for the remainder of the night.

[149] On these facts, Dr Tomlinson had made his conclusion which resulted in the position that it was likely Tearoiti

suffered post-concussional syndrome and that the condition led to the motor vehicle accident on 27 May 2009. [150] In all of the circumstances it was submitted that the evidence of Dr Tomlinson be preferred to that of the other

medical evidence which would allow for a conclusion that on the balance of probabilities, there was a causal connection between the injury suffered by Tearoiti on 26 May 2009 and the motor vehicle accident of 27 May 2009.

[151] Therefore, the injuries sustained by Tearoiti on 27 May 2009 arose out of, or in the course of, her employment

and that the employment was a significant contributing factor. Woolworths [152] The Employer respectfully adopted the detailed submissions provided on behalf of Q-COMP and in addition

offered further submissions in respect of the matters before the Commission. [153] There was a requirement for Tearoiti to prove on the balance of probabilities that the injury she sustained in the

motor vehicle accident that occurred on 27 May 2009 arose out of, or in the course of, her employment and her employment was a significant contributing factor to those alleged work related injuries. For Tearoiti to be successful with the Appeal, she would need to prove on the balance of probabilities that the incident on 26 May 2009 when the tubs fell on her head in the cold room was a real and effective cause of the injuries sustained on 27 May 2009.

[154] The submission indicated that Tearoiti had failed to prove she had sustained such an injury on the basis that her

employment needed to be more than just a setting in which the alleged injury was said to have occurred and it further needed to be more than just some part of the history or narrative preceding the actual course of the injury.

[155] The failure of Tearoiti to attempt a favourable reconstruction of what occurred on 26 May 2009 following the

concession that she had little if any memory of that event was said to lead to the only reliable factual evidence of what occurred on that day being from the other witnesses and the exhibits tendered in the proceeding and, in particular, the evidence of Miller and Weber. Further, the Commission was taken to the following:

• records of the Queensland Ambulance Service [Exhibit 2]; • Queensland Police Service Report [Exhibit 3]; • injury accident report [Exhibit 8]; and • statements of Miller [Exhibits 9 and 10].

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[156] The evidence from Emanuel should be discounted where it conflicts with the evidence of Weber and Miller as he was an unreliable and unconvincing witness. There was no basis to suggest that the evidence of Miller and Weber was affected by their "personal scepticism" as claimed in the submissions on behalf of Tearoiti. The evidence of Miller and Weber was given in a forthright and objective way with no attempt to embellish or reconstruct any evidence.

[157] Further to the evidence of Emanuel, the submission suggested there was a vagueness about the timing of events

on 26 May 2009 in addition to his evidence that he had observed Tearoiti had a large lump on her head that was not noticed by Miller or Weber and his evidence was that the lump was on the left side of the head rather than the right side of the head where the contact had actually occurred.

[158] On the admissible evidence, it was clear that the plastic tubs that struck Tearoiti had fallen some 10 to

20 centimetres and there was no factual basis to support a number of hypotheses put forward on behalf of Tearoiti about the incident that occurred in the cold room.

[159] On the motor vehicle accident on 27 May 2009, it was the case that Tearoiti was running late for work as the

accident happened at around 6.05 a.m. with her starting time that day being 6.00 a.m. Subsequently Tearoiti had pleaded guilty to driving with undue care and attention.

[160] The medical evidence was identified as important in determining the Appeal with the opinion expressed by

Dr Tomlinson said to have been based on facts that were unproven. The tenor of Dr Tomlinson's evidence was that because the accident of 27 May 2009 had occurred, there had to be a head injury sufficient from the previous day to cause post-concussional syndrome. This process of reasoning was described as fallacious.

[161] There is a requirement for Tearoiti to prove there is a link between the 26 and 27 May 2009 incidents and not for

those responding to the Appeal to prove there was no link between the two events. On the state of the evidence of Dr Ohlrich and Dr Atkinson, the Commission would not be actually persuaded that there was any link between what occurred on 26 May 2009 and the injuries received in the motor vehicle accident on 27 May 2009. To find any such link would involve mere conjecture. There was no evidence to establish that Tearoiti had post-concussional syndrome.

[162] On 26 May 2009 following the incident in the cold room, it was submitted that the evidence before the

proceedings indicated that Tearoiti:

• was able to negotiate stairs; • could move in a manner unimpeded; • continued to perform parts of her duties; • showed no signs of any problems; and • negotiated eating a meal whilst balancing it on a board in the bath.

[163] The circumstances of the accident on 27 May 2009 would suggest that Tearoiti was conscious when her vehicle

crossed onto the other side of the road, impacting with the other vehicle. There was absolutely no evidence that suggested Tearoiti had blacked out.

[164] The case for Tearoiti was said to be based on the "post hoc ergo propter hoc fallacy" which was described at

paragraph 32 of the submission as:

"That is, that event A caused result B by merely showing that B followed A. The Appellant's case is nothing more than mere speculation. 'An inference may be drawn from other facts where, as a matter of reason, those facts make it more probable than not that the thing to be inferred exists. If they do no more than show a possibility that the thing in question exists then its existence is a matter of conjecture not inference'.".

[165] Tearoiti had failed, on the balance of probabilities, to prove that the personal injuries suffered as a result of the

motor vehicle accident of 27 May 2009 arose out of or in the course of her employment and her employment was a significant contributing factor to those personal injuries.

[166] It was submitted that the Appeal should be dismissed.

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Q-COMP (in reply) [167] In reply, it was submitted that there were a number of inaccurate references to the evidence, contained in the

submission on behalf of Tearoiti that required correction, with the following matters being identified as being inaccurate:

• evidence of Miller regarding an inquiry of Tearoiti on travelling to and from work which was him simply

addressing a duty of care issue rather than concerns arising from her appearance or presentation (paragraphs 24-26 of the submission);

• no evidence to support a conclusion as to how many of the plastic tubs actually struck Tearoiti (paragraphs 16, 17 and 31 of the submission);

• pure speculation regarding Tearoiti adopting different postures and the impact area identified by Tearoiti is inconsistent with the hypothesis developed in the submissions of Tearoiti bending over (paragraph 34 of the submission);

• simply no evidence to suggest that Tearoiti was not productive in the paperwork she undertook; • the suggestion that Emanuel was told by Tearoiti that she did not feel comfortable driving home on

26 May 2009 was at odds with Emanuel's evidence (paragraph 48 of the submission); • evidence from Weber regarding her failure to recall a conversation with Emanuel was at odds with her

cross-examination and re-examination where the evidence was "that conversation didn't happen" (paragraph 54 of the submission); and

• the only witness to see the alleged lump on Tearoiti's head was Emanuel and the submission was repeated by Q-COMP that the Commission would find him an unreliable witness (paragraphs 53 to 57 of the submission).

[168] On the question of onus, the case presented on behalf of Tearoiti at no stage rises beyond a matter of conjecture

and the authorities cited by them were challenged, in effect by the reliance of Q-COMP on the matters of:

• MacArthur v WorkCover Queensland25;and • Minh Lai Nguin v Cosmopolitan Homes (NSW) Pty Ltd26.

[169] The difficulty for Tearoiti was said to be threefold in that:

• there is a cogent and convincing body of expert medical evidence contradicting her hypothesis; • there are a number of acceptable alternate causes or explanations for the accident occurring that contradicts

Tearoiti's hypothesis between the events of 26 and 27 May 2009, including that some weight is added to the alternatives by the fact she was running late for work on 27 May 2009; and

• the alleged mechanism of injury was clearly rejected by two of the expert medical witnesses with the support by Dr Tomlinson was at best equivocal.

[170] There had been a failure to make out a case linking the events of 26 May 2009 as being causative of the motor

vehicle accident that occurred on 27 May 2009 with Tearoiti's case resting upon an unsound basis of conjecture and hypothesis that was not supported by factual and medical evidence.

Conclusion [171] There was no issue that Tearoiti at the time she sustained injuries in the motor vehicle accident of 27 May 2009

was, for the purposes of s. 11 of the Act, a "worker" with the accident occurring in the course of a journey between her home and place of employment. It is of fact that as a result of the motor vehicle accident Tearoiti suffered significant injuries which appear to have had the effect of robbing her of any independent recollection of the events related to the said accident and an incident that occurred at her place of work the previous day (26 May 2009) when a number of plastic storage tubs fell, hitting her on the head.

[172] The parties were not at odds with the issue for determination by the Commission being whether there was a

causal link between the injury to Tearoiti's head suffered on 26 May 2009 and the motor vehicle accident of 27 May 2009.

[173] In the course of submissions advanced in support of the Appeal it was argued by Counsel for Tearoiti her

concession that she could not, with any degree of certainty or reliability, state the circumstances relating to the events of both days that this was a factor to her credit in that she did not seek to favourably reconstruct events. In this decision, the credit or otherwise of witness evidence other than Tearoiti will be the subject of consideration however, in the case of her evidence particularly as it related to the events of 26 and 27 May 2009

25 MacArthur v WorkCover Queensland [2001] 167 QGIG 100 26 Minh Lai Nguin v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246

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it is simply the case that she lacked a genuine capacity to have any independent recall and this was reflected in her evidence in the proceedings.

[174] In addressing the incident of 26 May 2009 the evidence of Weber and Miller stands as being the only evidence

presented of substance relating to that incident. Weber received a telephone call from Tearoiti immediately following the incident and shortly thereafter accompanied Tearoiti to an upstairs office where assistance was provided in the form of ice being obtained for the bump on the head. Weber did not notice that Tearoiti displayed any difficulties going up or down stairs, and was able to complete an incident report and later undertake the completion of paperwork normally associated with her role. No evidence was adduced as to the standard of work completed by Tearoiti nor was there evidence that Tearoiti had raised concerns regarding the task in question.

[175] Weber had immediately sought the involvement of Miller, an experienced First Aid Officer who over many

years had been involved in treating or accessing head injuries ranging from minor knocks to serious incidents resulting in hospitalisation. Miller undertook a number of procedures including visual observations and inspection of the head area said to have been injured.

[176] The various procedures provided no evidence of lacerations, lumps or bumps and Miller had no recall of Tearoiti

of reporting she had been knocked unconscious or complaining of dizziness. There was a complaint about feeling a "little numb" which dissipated once the ice pack had been removed. He had formed the view, following his examination, that there was not a requirement for Tearoiti to be sent to a Doctor although this could have been readily facilitated had Tearoiti made such a request. Upon checking Tearoiti on a couple of occasions during the afternoon, he observed that she was able to maintain an appropriate conversation with him and later that day he was aware she completed paperwork associated with her work role and had raised no difficulties regarding concentrating on the work in question. It was his opinion that Tearoiti had suffered a minor head injury.

[177] In the company of Tearoiti, Miller had conducted an inspection of the work area where the incident had occurred

giving evidence that she had not experienced any signs of her balance being affected as she descended a number of stairs in the course of the inspections.

[178] Enquiries made by Miller regarding Tearoiti's travel arrangements were said to have been made according to his

evidence from a duty of care perspective with the same type of offer having previously been made to a person who had suffered a cut hand.

[179] On the lay evidence available to the Commission, it would be my view that injury to Tearoiti's head on

26 May 2009 was minor in nature and that Tearoiti had not displayed any signs of being distressed, vague or off balance immediately following the incident or in hours prior to departing the workplace for her home.

[180] Following the incident, Tearoiti had contacted Emanuel at around 2.00 p.m. advising of the injury to her head

indicating that she did not feel comfortable driving home but did not seek a lift home at that time as it was her intention to undertake some paperwork. Later that day at 4.30 p.m. she contacted him advising she was ready to leave work. In cross-examination it was his evidence that in each of the phone calls Tearoiti had spoken normally and there were no issues with her communication.

[181] On arrival at the workplace at 5.00 p.m., Emanuel gave evidence of noticing a large lump on the right side of

Tearoiti's head which contradicted the evidence of Weber and Miller that there were no visible signs of any lumps and bumps as a consequence of the incident and more so the alleged lump noticed by Emanuel was on the opposite side of the head than had been hit by the plastic tubs which, on Miller's evidence, had likely only fallen a short distance before striking Tearoiti.

[182] Emanuel gave evidence that Tearoiti informed him at the time of pick up that whilst her head was sore and she

had a headache, she was alright and he did not see the need for her to obtain any form of medical treatment. There was some conflict in the evidence of Emanuel and Rodak regarding the pick up time and subsequent arrival at their place of residence which appears to be a further example of Emanuel's recollection of events differing from that of the other lay witnesses involved in the proceedings. Emanuel's evidence was that once home he prepared a bath for Tearoiti and whilst in the bath she had been able to consume her evening meal, eating it off a piece of wood placed across the bath. Further the evidence confirmed that she had no difficulties in communicating, dressing or going to bed and that she was able to rise the following morning and depart for work, albeit a little late.

[183] The evidence on the events following the exiting of the workplace by Tearoiti on 26 May 2009 does nothing to challenge the view of the Commission that she had suffered a minor head injury without experiencing any of the signs mentioned in paragraph 179 of this decision.

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[184] In terms of the specialist medical evidence, Dr Tomlinson, a Neurosurgeon, examined Tearoiti on 12 April 2012, almost three years after the 26 May 2009 incident, and opined that as a result of a minor closed head injury suffered on that day in May 2009, she had suffered a concussion. Dr Tomlinson went on to state that it was his belief that there was a causal relationship between that incident and the motor vehicle accident the following day. He had relied upon information provided by Weber, Miller and Emanuel, in particular making reference to Emanuel's claim "that there was a large bump on the side of his wife's forehead which was prominent".

[185] The minor closed head injury had "altered sensorium" which meant she was suffering post-concussional

syndrome secondary to traumatic brain injury which was said to occur in 40 to 80 percent of people who suffer a mild head injury.

[186] The cross-examination of Dr Tomlinson revealed the limited information available to him regarding the incident

of 26 May 2009 and whilst he accepted that Tearoiti had not displayed symptoms such as amnesia, ringing in the ears, nausea, slurred speech or vomiting, associated with concussive traumatic brain injury, it was his evidence that there were a variety of symptoms, all of which did not have to present for the condition to exist.

[187] Dr Atkinson, also a Neurosurgeon, examined Tearoiti on 13 October 2011, which was also a considerable time

after the incident of 26 May 2009, making the finding that Tearoiti had suffered a minor closed head injury on that day in May 2009 without loss of consciousness and did not suffer any irreversible organic brain injury. He went on to state "the reported incident on 26 May 2009 did not contribute in any way to the subsequent motor vehicle accident on 27 May 2009".

[188] Other evidence from Dr Atkinson was that Tearoiti did not suffer a post-concussional syndrome as a result of the

incident of 26 May 2009. Further that when the weight of the storage tubs and the distance they had fallen was considered, the contact with Tearoiti's head could not have caused an organic brain injury.

[189] Dr Atkinson did not accept the proposition of Dr Tomlinson those experiencing a post-concussional syndrome

after a minor head injury could be as high as 80 percent with his opinion being that 50 percent of people who sustain a minor closed head injury will experience post-concussional syndrome on the basis that 50 percent are of a psychological basis and 50 percent may have an organic basis.

[190] Dr Ohlrich, a Neurologist, first saw Tearoiti in September 2010, finding that she had suffered a "quite" minor

head injury on 26 May 2009 without any sign of post-traumatic amnesia and nothing to suggest any brain injury. On the balance of probabilities, he believed it was unlikely that the head knock on 26 May 2009 was causally related to the motor vehicle accident of 27 May 2009 however he was not prepared to exclude the possibility.

[191] On the seriousness of the head knock, the behaviour of Tearoiti following the incident of 26 May 2009 according

to Dr Ohlrich was an indication that the blow to the head was not a serious one. [192] In consideration of the specialist medical evidence, there was common ground that the head injury suffered by

Tearoiti on 26 May 2009 was relatively minor with both Dr Atkinson and Dr Ohlrich not accepting that it was of a nature so as to cause injury to the brain. In the case of the competing evidence from the two Neurosurgeons, it is clear their opinions were based on similar information regarding the history of the events of 26 May 2009, however Dr Tomlinson placed particular reliance upon the claim by Emanuel that he observed a lump on Tearoiti's head when he arrived at her workplace. The Commission does not accept the evidence of Emanuel as being truthful regarding this claim, for the reason that his evidence of the lump being on the right side of her head was not the relevant area of the injury as evidenced by Weber and Miller whose evidence is accepted.

[193] In preferring the medical evidence of Dr Atkinson in these proceedings that Tearoiti did not, on 26 May 2009,

suffer an organic brain injury nor was she concussed from the incident involving the plastic tubs falling upon her head, the Commission acknowledges that Dr Ohlrich had also opined that she had suffered a minor head injury which was not causative of any brain injury. The Commission accepts the conclusion drawn by Dr Atkinson of no causal link between the minor closed head injury of 26 May 2009 and the motor vehicle accident of 27 May 2009 which, in the circumstances, is a conclusion based on extensive experience and sound medical reasoning.

[194] No formal evidence regarding the motor vehicle accident of 27 May 2009 was offered in the proceedings,

although a Queensland Police Service Report [Exhibit 3] was entered into the record by consent. The report contained a number of statements made to Queensland Police from motorists who witnessed the accident, although in the view of the Commission it would be unsafe to rely upon that material as it remained untested in the course of the hearing. The report also contained a statement from Sergeant Bradley Dieckman who had undertaken inspections of the motor vehicles and trailer involved in the accident and whilst he was not called to give evidence, he offered the opinion that Tearoiti's vehicle had no mechanical defects that may have contributed to the accident, excepting the right rear tyre was devoid of tread on the inside section of the tyre. Tearoiti was

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charged with a traffic offence following the motor vehicle accident and entered a guilty plea, seemingly without the benefit of legal advice.

[195] Any attempt by the Commission to draw any inferences as to the cause of the motor vehicle accident would be

improper in the circumstances due to the lack of evidence on that matter in the proceeding and would be speculative at best.

Finding [196] The Commission, on consideration of the evidence, material, authorities and submissions in the proceedings,

finds that on the balance of probabilities Tearoiti suffered a minor closed head injury on 26 May 2009 as a result of plastic storage tubs falling from a minimal height and striking her on the head. The evidence of Miller and Weber as to Tearoiti's state immediately after the incident and the two hours following is such that it is safe to conclude no symptoms were displayed that would allow for a finding she had been concussed as a consequence of the minor closed head injury. Additionally on the evidence available for the period between her leaving the workplace on the evening of 26 May 2009 and departing her place of residence the following morning, it is also safe to conclude there was an absence of symptoms that pointed to her suffering a concussion. The specialist medical evidence of Dr Atkinson was also clear regarding there being no concussion suffered as a consequence of the minor closed head injury.

[197] Having regard for the standard of proof which an Appeal of this nature must be determined Tearoiti, has failed to

establish a causal link between her minor closed head injury on 26 May 2009 and the motor vehicle accident of 27 May 2009.

[198] Therefore, the Appeal is dismissed and the decision of the Q-COMP Review Unit of 22 March 2012 stands. [199] The matter of costs is reserved. [200] I order accordingly. J.M. THOMPSON, Industrial Commissioner. Hearing Details: 2013 8, 9 and 10 April 5 June (Respondent's submissions) 3 July (Appellant's submissions) 25 July (Employer's submissions) 13 August (Respondent's submissions in reply) 27 August

Released: 27 August 2013

Appearances: Mr J. Dwyer of Counsel, instructed by Mr T. Christie of Sciaccas Lawyers for the Appellant. Mr P. O'Neill of Counsel, instructed by Q-COMP. Mr P. Rashleigh of Counsel, instructed by Mr S. Falvey of McInnes Wilson Lawyers for Woolworths Limited.