Bradshaw v Tasmania Networks Pty Ltd - [2020] TASFC 2

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2

PARTIES:  BRADSHAW, Kim
  v
  TASMANIA NETWORKS PTY LTD

FILE NO: 2646/2019
JUDGMENT

APPEALED FROM: Bradshaw v Tasmania Networks Pty Ltd [2020] TASSC 41

DELIVERED ON:  5 May 2020
DELIVERED AT:  Hobart
HEARING DATE:  13 March 2020
JUDGMENT OF:  Estcourt J, Martin AJ, Porter AJ

CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Determination of claims – Procedure – Procedure before hearing – Disputed liability for weekly payments and other benefits – Referral of dispute by employer to tribunal – Tribunal found employer had reasonably arguable case – Primary judge on appeal found error of law but made the same determination – Injury said to be aggravation or acceleration of pre-existing disease – Evidence left open possibility of progression of underlying disease as a contributing factor – Causation reasonably arguable – Primary judge's determination not shown to be wrong.
Workers Rehabilitation and Compensation Act 1988, ss 3(1), 3(2A), 25.
St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 4, applied

Long v Kmart Australia Ltd [2016] TASSC 6, 25 Tas R 237, referred to.
Aust Dig Workers Compensation [307]

REPRESENTATION:

Counsel:
Appellant: W A Ayliffe SC
Respondent: P L Jackson SC

Solicitors:
Appellant:Blissenden Lawyers
Respondent: Page Seager

Judgment Number: [2020] TASFC 2
Number of paragraphs: 92

Serial No 2/2020
File No 2646/2019

KIM BRADSHAW v TASMANIA NETWORKS PTY LTD

REASONS FOR JUDGMENT FULL COURT
ESTCOURT J

MARTIN AJ
PORTER AJ
5 May 2020

Orders of the Court:

Appeal dismissed.

Serial No 2/2020
File No 2646/2019

KIM BRADSHAW v TASMANIA NETWORKS PTY LTD

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
5 May 2020

The appeal and the background

This appeal involves the application of s 3 of the Workers Rehabilitation and Compensation Act 1988 (the Act), in the context of the respondent's referral of the appellant's claim for compensation for a determination by the Workers Rehabilitation and Compensation Tribunal (the Tribunal), under s 81A of the Act. After a hearing pursuant to that section, the Tribunal ordered that compensation not be paid and the appellant appealed to this Court against that determination.
The question arising is whether it is "reasonably arguable", on the evidence that was before the Tribunal, that the appellant's employment was not the major or most significant factor contributing to a "recurrence, aggravation, acceleration, exacerbation or deterioration" of his pre-existing lumbar spondylosis, for the reason that a natural degenerative process is open as an alternative explanation.
The learned primary judge, Brett J, held that, for the purposes of s 81A, the evidence left open a reasonable argument that, following a contested final hearing, the appellant's claim might be rejected, having regard to the requirement that the appellant's employment must be shown to be the major or most significant factor in the aggravation or exacerbation of the underlying disease.
The learned primary judge concluded that the only…

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: [2020] TASFC 2
Decision Date: 5 May 2020

CaseChat Overview and Summary

In *Bradshaw v Tasmania Networks Pty Ltd*, the Full Court of the Supreme Court of Tasmania considered an appeal concerning a workers compensation claim. The dispute involved an employee who alleged their injury was an aggravation or acceleration of a pre-existing disease, with the employer, Tasmania Networks Pty Ltd, disputing liability for weekly payments and other benefits. The matter had been referred by the employer to a tribunal, which initially found the employer had a reasonably arguable case. A primary judge on appeal subsequently found an error of law in the tribunal's decision but ultimately made the same determination.

The central legal issue before the Full Court was whether the primary judge erred in upholding the tribunal's finding that the employer had a reasonably arguable case, despite identifying an error of law. This required the court to consider the evidence regarding causation, specifically whether the injury was attributable to the employment or the natural progression of an underlying disease. The court had to determine if the evidence presented left open the possibility that the progression of the pre-existing disease was a contributing factor to the employee's condition, and if this possibility meant the employer's case was reasonably arguable.

The Full Court reasoned that the evidence presented did indeed leave open the possibility that the progression of the underlying disease was a contributing factor to the employee's current condition, separate from any aggravation caused by employment. This uncertainty meant that the employer's contention that the injury was not solely or primarily caused by their actions, but rather by the natural progression of a pre-existing condition, was a reasonably arguable position. Consequently, the Full Court concluded that the primary judge's determination, that the employer had a reasonably arguable case and that their decision was not shown to be wrong, was correct.

Orders