Chambers v Cascade Brewery Co Ltd - [1991] TASSC 79

Serial No 63/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Chambers v Cascade Brewery Co Ltd [1991] TASSC 79; A63/1991

PARTIES:  CHAMBERS, Richard Andrew
  v
  CASCADE BREWERY CO LTD

FILE NO/S:  WC 119/1990
DELIVERED ON:  21 August 1991
JUDGMENT OF:  Zeeman J

Judgment Number: A63/1991
Number of paragraphs: 13

Serial No 63/1991
List "A"
File No WC 119/1990

RICHARD ANDREW CHAMBERS v CASCADE BREWERY CO LTD

REASONS FOR JUDGMENT ZEEMAN J

21 August 1991

The plaintiff has instituted proceedings against the defendant for workers' compensation and has invoked the jurisdiction which was conferred on this Court by s14(1) of the Workers' Compensation Act 1927 ("the 1927 Act"). That Act was repealed by the Workers Compensation Act 1988 ("the 1988 Act"), which commenced on 15 November 1988 ("the commencement date"). By virtue of s4(3) of the 1988 Act it does not apply in respect of an injury which occurred before the commencement date. Section 4(4) of the 1988 Act provides that the 1927 Act continues to apply in respect of an injury to which the 1988 Act does not apply by virtue of s4(3). This Court retains jurisdiction to deal with claims for compensation to which the 1927 Act continues to apply.

By his grounds and particulars the plaintiff alleges that at all material times he was a worker, within the meaning of the 1927 Act, employed by the defendant, and that between 1969 and 12 April 1990 he suffered industrial deafness caused by prolonged exposure to excessive noise in the environment in which he worked. He further alleges that as a result of having suffered industrial deafness, he has been partially incapacitated for work since 12 April 1990. He claims payment of weekly compensation for the period of his partial incapacity and payment of a lump sum pursuant to r7 of the First Schedule to the 1927 Act.

The plaintiff has closed his case. The defendant has elected to call no evidence and has submitted that it has no case to answer. That submission is upon the basis that if the plaintiff has any entitlement to compensation, then that entitlement does not arise under the 1927 Act. If the plaintiff has no entitlement to compensation under the 1927 Act, then the defendant has no case to answer. It matters not that the plaintiff might have an entitlement under the 1988 Act as this Court has no original jurisdiction under that Act. Such jurisdiction is conferred upon the Workers Compensation Division of the Court of Requests.

On the most favourable view of the evidence from the plaintiff's point of view it is capable of establishing the following facts:

1         The plaintiff has been in the continuous employ of the defendant since September 1969.
2         Whilst so employed the plaintiff has held various positions.
3         All positions held by the plaintiff up until 12 April 1990 required him to work in locations where he was exposed to very noisy machinery.
4         The noise…

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: [1991] TASSC 79
Decision Date: 21 August 1991

CaseChat Overview and Summary

Chambers v Cascade Brewery Co Ltd is a case where Richard Andrew Chambers sought workers' compensation from Cascade Brewery Co Ltd for industrial deafness caused by prolonged exposure to excessive noise in the workplace. The Supreme Court of Tasmania was tasked with determining whether the Workers Compensation Act 1927 (the 1927 Act) or the Workers Compensation Act 1988 (the 1988 Act) applied to the case. The key legal issues revolved around the applicability of the 1927 Act and whether Chambers' claim for workers' compensation was valid under either the 1927 Act or the 1988 Act.

The court examined the provisions of the 1988 Act, particularly s4(3), which excluded the application of the 1988 Act to injuries occurring before its commencement date. It also looked at s4(4), which provided that the 1927 Act continued to apply in cases where the 1988 Act did not. The court held that the condition of industrial deafness was a disease under s3(1) of the 1988 Act, and thus, s3(5) applied to determine the date of occurrence of the injury. Based on the evidence, the court concluded that Chambers did not become partially incapacitated until 12 April 1990, which was after the commencement date of the 1988 Act. Therefore, the 1927 Act did not apply, and the claim was within the jurisdiction of the Workers Compensation Division of the Court of Requests, not the Supreme Court of Tasmania.

The court also considered the precedent set by Boucher v Motors Pty Ltd, where it was held that a worker suffering from industrial deafness but not disabled from earning wages was not entitled to compensation under the 1927 Act. The court found that Chambers, who had not been prevented from earning his full wages until 12 April 1990, did not meet the criteria for compensation under the 1927 Act. Consequently, the court ruled that the defendant had no case to answer as Chambers had no entitlement to compensation under the 1927 Act.

In conclusion, the court dismissed Chambers' claim for workers' compensation, holding that the claim was not within its jurisdiction and that Chambers had no entitlement to compensation under the repealed 1927 Act.

Orders