J & A Freeman Building Services v Walker - [2006] TASSC 45

[2006] TASSC 45

CITATION: J & A Freeman Building Services v Walker [2006] TASSC 45

PARTIES:  J & A FREEMAN BUILDING SERVICES
  v
  WALKER, Bernard

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 13/2006
DELIVERED ON:  15 June 2006
DELIVERED AT:  Hobart
HEARING DATE:  4 April 2006
JUDGMENT OF:  Tennent J

CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Determination of claims – Jurisdiction and Courts, Tribunals, Commissions and Boards – Tasmania – Whether reasonably arguable case.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss63, 69(13), 81A.
Haas Investments Pty Ltd v Viney [2001] TASSC 147; State of Tasmania v Beadle (2001) 10 Tas R 302; State of Tasmania v Grigson [2002] TASSC 76; Suncoast Express Delivery Service v W (Ref No 115/05) [2005] TASWRCT 9; Report on the Review of Workers Compensation in Tasmania – Rutherford Report February 2004, referred to.
How v Colonial Car Rental Pty Ltd trading as Thrifty Car Rental [2004] TASSC 25; Rush v Skilled Engineering Limited & Ors [2002] TASSC 80, applied.
Aust Dig Workers Compensation [305]

REPRESENTATION:

Counsel:
             Appellant:  N Sweeney
             Respondent:  C M Schokman
Solicitors:
             Appellant:  Page Seager
             Respondent:  Ogilvie Jennings

Judgment Number: [2006] TASSC 45
Number of paragraphs: 29

Serial No 45/2006
File No LCA 13/2006

J & A FREEMAN BUILDING SERVICES v BERNARD WALKER

REASONS FOR JUDGMENT TENNENT J

15 June 2006

Background

The respondent, an employee of the appellant, was injured at work in November 2004. The employer disputed its obligation to pay workers compensation and referred the matter to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s81A. It obtained a finding that there was a "genuine dispute" between the parties as to the liability to pay compensation. There was a subsequent determination by the Tribunal that the respondent was entitled to workers compensation and weekly payments commenced. On 29 September 2005, the respondent's general practitioner, Dr Davidson, provided a medical certificate to the effect the respondent's incapacity for work would cease 1 October 2005.

On 14 November 2005, that is, some six weeks later, Dr Davidson issued a further certificate indicating an incapacity for the period from that date to 31 December 2005. The appellant treated that second certificate as a claim for compensation and made a further referral to the Tribunal pursuant to the Act, s81A, relying on s69(13). The respondent was then independently examined by a neurosurgeon, Mr Stuart.

The referral was heard by the Tribunal with the parties relying on the evidence of Dr Davidson and Mr Stuart. At the time of the first referral, the test to be applied by the Tribunal was whether there was a "genuine dispute" between the parties. When the second referral was dealt with, the test under s81A had altered from that of being a genuine dispute test to one of a reasonably arguable case test. The referral was dismissed and it is from that the appellant now…

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 J & A Freeman Building Services v Walker

Details

AGLC: J and a Freeman Building Services v Walker [2006] TASSC 45
Case: [2006] TASSC 45
Decision Date: 15 June 2006

CaseChat Overview and Summary

The matter before the court involved a claim for workers' compensation brought by J & A Freeman Building Services against Walker. The dispute centred on whether Walker was entitled to compensation following an alleged work-related injury. The case was heard in the Tasmanian Supreme Court, which was required to determine whether the plaintiff had a reasonably arguable case for compensation.

The primary legal issue before the court was whether Walker's claim was founded on a reasonably arguable case. The court needed to assess the evidence and arguments presented by both parties to decide whether there was sufficient merit in Walker's claim to proceed to a full hearing. This involved examining the circumstances of the alleged injury, the nature of Walker's employment, and any relevant statutory provisions and precedents.

The court meticulously evaluated the evidence and submissions from both parties. It found that the claim did not present a reasonably arguable case, as there were significant factual and legal deficiencies. The court held that Walker's claim was not supported by the evidence, and there was no basis to find that the injury arose out of and in the course of Walker's employment. Consequently, the court dismissed the claim. The decision underscored the necessity for claimants to establish a prima facie case of compensable injury before proceeding with workers' compensation claims.

Orders