Aqua Distributors Pty Ltd v Roff - [2002] TASSC 84

[2002] TASSC 84

CITATION: Aqua Distributors Pty Ltd v Roff [2002] TASSC 84

PARTIES:  AQUA DISTRIBUTORS PTY LTD
  v
  ROFF, Richard

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 54/2002
DELIVERED ON:  17 October 2002
DELIVERED AT:  Hobart
HEARING DATES:  10 September 2002
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals and stated cases - Other matters - Tasmania - No power to receive evidence upon hearing of an appeal.

Workers Rehabilitation and Compensation Act 1988 (Tas), s63.
Aust Dig Workers Compensation [170]

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Procedure before hearing - Whether insurer has authority to decide to dispute claim and give statutory notices - Subrogation - Terms of subrogation governed by policy.

Workers Rehabilitation and Compensation Act 1988 (Tas), s81A.
FAI General Insurance Co Ltd v MMI-CMI Insurance Ltd & Ors A14/1992; Freemasons Homes of Tasmania v Price A2/1994; Tasmanian Government Insurance Board & Ors v Priest A57/1993 (noted at (1993) 2 Tas R 493); Griffiths v Devonport Youth Accommodation Services Inc A39/1996, followed.
Aust Dig Workers Compensation [146]

REPRESENTATION:

Counsel:
             Appellant:  A M Quinn
             Respondent:  C N Dockray
Solicitors:
             Appellant:  Dobson Mitchell & Allport
             Respondent:  C N Dockray

Judgment Number: [2002] TASSC 84
Number of Paragraphs: 22

Serial No 84/2002
File No LCA 54/2002

AQUA DISTRIBUTORS PTY LTD v RICHARD ROFF

REASONS FOR JUDGMENT UNDERWOOD J

17 October 2002

The issue in this appeal from a determination of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") is whether there has been compliance with the provisions of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s81A, to ground the Tribunal's jurisdiction to determine whether a genuine dispute existed with respect to the respondent's claim for compensation.

The respondent was a director, part owner and employee of the appellant. In July 1998, the respondent delivered a claim for compensation to the Tasmanian Government Insurance Office, then the appellant's licensed insurer. No medical certificate accompanied the claim. The claim asserted that the respondent suffered back pain about 12pm on 28 April 1998 when lifting a bag of fertiliser off the back of a truck.

On 25 March 2002, a medical practitioner issued a medical certificate which diagnosed a lumbar spine injury. The certificate also provided that the respondent stated that the injury was caused by an incident that occurred on 23 March 1998 when lifting a 50 kilogram bag of fertiliser. The certificate further stated that the respondent would be partially incapacitated for work from the date of the certificate until 25 June 2002. This certificate was submitted to GIO General Limited, the successor to the appellant's former licensed insurer. As is provided by the Act, s34(2), the claim for compensation was thereupon deemed to have been made.

Mr Rodney Bellette, the claims team leader employed by the licensed insurer, received the medical certificate the day it was issued. He thereupon prepared a letter dated 12 April…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] TASSC 84
Decision Date: 17 October 2002

CaseChat Overview and Summary

Aqua Distributors Pty Ltd, the appellant, sought to appeal a decision of the Workers Rehabilitation and Compensation Tribunal, which determined that the employer did not form an intention to dispute liability to pay compensation to the respondent, Richard Roff, who had made a claim for workers compensation. The central issue in this appeal was whether the insurer, GIO General Limited, had the authority to dispute the claim under the terms of the insurance policy, specifically through the rights of subrogation. The appellant argued that the insurer, acting as an agent of the employer, had the right to dispute the claim under the terms of the insurance policy, while the respondent contended that the employer alone had the authority to dispute the claim as required by the Workers Rehabilitation and Compensation Act 1988 (Tas), s81A. The court considered whether the insurer could exercise the rights of subrogation to dispute the claim and whether the employer had formed the requisite state of mind to dispute the claim, as required by the Act.

The court examined the provisions of the insurance policy and relevant case law to determine the scope of the insurer's rights under the policy. The court noted that the policy did not explicitly subrogate the right to dispute the claim to the insurer. The court also held that, even if the policy did confer such rights, the insurer would only have the right to dispute the claim after a loss had been paid, which had not occurred in this case. The court held that the employer alone had the authority to dispute the claim and that the insurer could not exercise the rights of subrogation to dispute the claim on behalf of the employer. The court concluded that the Tribunal was correct in finding that the employer had not formed the requisite state of mind to dispute the claim, and the appeal was dismissed.

No orders were made in favour of either party as the appeal was dismissed.

Orders