Carr v the Glenorchy Municipality - [1988] TASSC 55

Serial No 54/1988
List “A”

COURT: SUPREME COURT OF TASMANIA

CITATION: Carr v the Glenorchy Municipality [1988] TASSC 55; A54/1988

PARTIES:  Carr
  v
  The Glenorchy Municipality

FILE NO/S:  54/1988
DELIVERED ON:  16 November 1988
JUDGMENT OF:  Cox J

Judgment Number: A54/1988
Number of paragraphs: 36

Serial No 54/1988

List "A"

File No WC 561/1986

CARR v THE GLENORCHY MUNICIPALITY

REASONS FOR JUDGMENT COX J

16 November 1988

This is a claim for the continuation of weekly payments of workers' compensation. The plaintiff claims that on the 25 June 1984, while employed by the defendant as a labourer, he suffered injury by accident in circumstances (namely on his way to work) deemed to arise out of and in the course of his employment. He has not returned to work since that date and until 12 December 1986 was paid weekly payments of compensation by the defendant at the rate appropriate for total incapacity for work. On that latter date the defendant terminated payments of compensation and has refused to make any further payments.

There has been debate at the Bar table concerning the onus of proof in a situation such as the present. The plaintiff's counsel submits that the onus lies on the defendant to justify its termination of the payments, while counsel for the defendant, relying in particular on the decision of Cosgrove J in Holmyard v The Marine Board of Hobart, unreported, Serial No 101987, contends that it rests on the plaintiff to satisfy the court firstly that an award should be made and secondly as to the quantum of the award.

I think the true position lies somewhere between the two contentions. It is a truism that he who asserts must prove. The first question to be determined is what are the facts upon which the plaintiff's claim rests and what, if any, are the facts upon which the defendant relies to avoid the liability proof of the plaintiff's facts would otherwise impose upon him.

The Workers' Compensation Act 1927 ("the Act"), s5(1), provides:

"5–(1) If in any employment a worker suffers personal injury by accident, or is disabled or dies as the result of a disease, arising out of and in the course of the employment, his employer shall, subject to this Act, be liable to pay compensation in accordance with the provisions of Schedule I:
Provided that no such compensation shall be payable in respect of any disease arising before the commencement of this subsection out of and in the course of any employment in which the worker was employed."

Rule 3(1) of Schedule I provides:
"3–(1) Subject to this rule, where total or partial incapacity for work results from an injury sustained by the worker, the compensation payable under this Act is, in addition to any lump sum that may be payable under rule 5 or rule 6 in respect of that injury, a weekly payment at the relevant compensation rate reduced, in the case of a period of partial incapacity, by…

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 Carr v the Glenorchy Municipality

Details

AGLC: Carr v the Glenorchy Municipality [1988] TASSC 55
Case: [1988] TASSC 55
Decision Date: 16 November 1988

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Carr v The Glenorchy Municipality revolved around a claim for the continuation of weekly workers' compensation payments. The plaintiff, Carr, asserted that he suffered an injury by accident on 25 June 1984, while commuting to work, which arose out of and in the course of his employment as a labourer for the defendant, The Glenorchy Municipality. He had not returned to work since the incident and was paid weekly compensation until 12 December 1986, when the defendant terminated the payments. The core legal issue in this case was the onus of proof concerning the termination of the compensation payments. The plaintiff's counsel argued that the onus lay on the defendant to justify the termination, while the defendant's counsel contended that the onus rested on the plaintiff to prove both the entitlement to compensation and its quantum. The court found that the true position lay between these two contentions, emphasizing that the party asserting a fact bears the burden of proof. Initially, the plaintiff must establish his entitlement to compensation by proving the injury and the resultant incapacity for work. Once established, the onus shifts to the employer to justify any termination or diminution of payments by demonstrating circumstances outlined in the Workers' Compensation Act 1927. The court concluded that the plaintiff had established his entitlement to compensation and that the employer had failed to demonstrate circumstances justifying the termination of payments. The plaintiff was awarded the balance of his compensation, amounting to $19,548.68.

Orders