Burgess v Precise Timbers Pty Ltd - [1990] TASSC 50

Serial No 47/1990
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Burgess v Precise Timbers Pty Ltd [1990] TASSC 50; A47/1990

PARTIES:  BURGESS
  v
  PRECISE TIMBERS PTY LTD
  FAI GENERAL INSURANCE COMPANY LTD

FILE NO/S:  LCA 8/1990
DELIVERED ON:  19 September 1990
JUDGMENT OF:  Wright J

Judgment Number: A47/1990
Number of paragraphs: 32

Serial No 47/1990
List "A"
File No LCA 8/1990

BURGESS v PRECISE TIMBERS PTY LTD
& FAI GENERAL INSURANCE COMPANY LTD

REASONS FOR JUDGMENT WRIGHT J

19 September 1990

This is an appeal from a determination of the Workers' Compensation Commissioner made on 20 March 1990. The learned Commissioner had before him an application purporting to be made under s42 of the Workers' Compensation Act 1988 in the following terms:

"I, FAI Insurance for and on behalf of Precise Timbers of 125 Collins Street Hobart hereby apply to the Workers' Compensation Commissioner to hear and determine the following – due to the circumstances surrounding the claim we wish to dispute this claim for compensation."

The application was dated 2 November 1989. Particulars of the "circumstances" referred to and the "claim" in question, were not included in the application itself. It was plainly deficient in that it was devoid of any relevant detail as to the subject matter of the application. It was however accompanied by a letter addressed to the Workers' Compensation Commission in the following terms:
"re: Workers' Compensation Claim Precise Timbers and Darrel Ian Burgess
It appears that some circumstances surrounding the alleged accident are somewhat vague and therefore we have decided to dispute this claim. We briefly submit the following information which outlines the basis of our dispute:
(a)The worker stated on their (sic) claim form that the alleged injury occurred on 25589.
(b)The clients stated on their claim form that the worker had the alleged injury on 25589, started work for Precise Timbers on 24589 and that the worker didn't stop work until 4.30pm on 26589.
(c)It has been established since the completion of the claim forms that the worker actually started employment on 17589 and had the alleged accident on 18589.
(d)A witness' statement stated that the worker complained of a torn leg muscle which he said happened whilst working on the roof of Hamilton's Butcher Shop in Wynyard, earlier that week.

The claim was initially accepted because the employer's claim form was not forwarded to us within the five day limit. Also, as it did not seem a very serious injury, we assumed that it would be only a relatively small claim so we did not dispute it at the time.
After some time the initial injury progressed into a back problem.
We referred him to a specialist in Hobart but he did not attend the appointment so we served a notice on him advising that compensation would be terminated in accordance with section 85(6) of the Act.
A couple of days after the notice was served both letters that were sent to him returned to us in the mail…

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.

Continue reading Burgess v Precise Timbers Pty Ltd

Details

AGLC: Burgess v Precise Timbers Pty Ltd [1990] TASSC 50
Case: [1990] TASSC 50
Decision Date: 19 September 1990

CaseChat Overview and Summary

Burgess, a former employee of Precise Timbers Pty Ltd, appealed a determination by the Workers' Compensation Commissioner dismissing his claim for workers' compensation. The Commissioner's decision was based on his finding that Burgess had not proved on the balance of probabilities that his injury occurred in the course of his employment with Precise Timbers Pty Ltd. Burgess argued that the Commissioner erred in law by failing to find that the employer had the onus of proving that the injury did not occur in the course of employment, and by failing to refer the matter to a medical board for assessment. The Supreme Court of Tasmania held that the Commissioner erred in law by not recognising that the employer and insurer had the onus of proof and that the appeal should be remitted to the Commissioner for rehearing. The court found that the Commissioner's decision to dismiss the claim for failure to discharge an onus of proof was inappropriate given the inquisitorial nature of the proceedings before the Commissioner. The Commissioner had the power to refer matters to Medical Boards and to call for reports and investigations, and should have pursued these avenues of enquiry before dismissing the claim.

Orders