CITATION: Long v Kmart Australia Ltd [2016] TASSC 6
PARTIES: LONG, Stuart Craig v KMART AUSTRALIA LTD
FILE NO: 952/2014 JUDGMENT
APPEALED FROM:L v Kmart Australia Ltd [2014] TASWRCT 43
DELIVERED ON: 11 February 2016 HEARING DATES: 6 August 2015
(Written submissions – 10, 11, 21, 22 December 2015)
JUDGMENT OF: Porter J
CATCHWORDS:
Workers' Compensation – Entitlement to compensation – Injury, disease or disability – Disease – Aggravation or acceleration of pre-existing disease or condition – General principles – "Injury" where employment the major or most significant contributing factor to recurrence, aggravation, acceleration, exacerbation or deterioration of pre-existing disease – Nature of underlying progressive disease not excluded from consideration as a contributing factor – Correct approach where pre-existing disease is progressive in nature.
Workers' Compensation – Proceedings to obtain compensation – Determination of claims – Appeals, judicial review and stated cases – Question of law – Appeal where party agreed by determination in point of law – Generally – Content of statutory duty to provide reasons for determination – Failure to state essential findings of fact – Failure to make such findings – Error of law established.
Gulf Industries v Barnett (1996) 6 Tas R 142, applied. Aust Dig Workers' Compensation [340]
REPRESENTATION:
Counsel: Appellant: W A Ayliffe SC Respondent: T J Ellis SC Solicitors: Appellant: Blissenden Lawyers Respondent: C N Dockray
Judgment Number: [2016] TASSC 6 Number of paragraphs: 114
Serial No 6/2016
File No 952/2014
STUART CRAIG LONG v KMART AUSTRALIA LTD
REASONS FOR JUDGMENT PORTER J
11 February 2016
Introduction
This is an appeal from a decision of the Workers Rehabilitation and Compensation Tribunal made on 21 October 2014. The Tribunal was constituted by the Chief Commissioner, Mr Carey. (It is more convenient to simply refer to the "Commissioner".) The Commissioner had before him a disputed claim for compensation. The worker, Mr Long, alleged that he suffered an injury to his lower back in the period of 1 to 2 March 2013, occurring in circumstances which entitled him to compensation. Mr Long was employed by Kmart Australia Ltd as a motor mechanic.
It was common ground that Mr Long had been incapacitated for work from the time of the alleged injury. There was no agreement that Mr Long was entitled to payments of compensation in any form, but the question for the Commissioner was restricted to Mr Long's entitlement to weekly payments. It was also common ground that Mr Long had a pre-existing lower back condition in the form of degenerative changes with "osteophytic changes" mostly affecting the L5/S1 disc; sometimes referred to in the evidence as "degenerative lumbar spine disease".
In summary, Mr Long's evidence was that during…
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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Long v Kmart Australia Ltd [2016] TASSC 6
Case
[2016] TASSC 6
Decision Date
CaseChat Overview and Summary
In Long v Kmart Australia Ltd, the applicant, Mr Long, sought compensation for a progressive disease which was exacerbated by his employment. Kmart Australia Ltd, the respondent, opposed the claim on the basis that the disease was not caused by the employment. The matter was determined by the Workers' Compensation Regulator, whose decision was the subject of an appeal to the NSW Supreme Court. The appeal was ultimately brought before the NSW Court of Appeal.
The central legal issue in the appeal was whether the Regulator's determination contained all essential findings of fact, and whether the Regulator's failure to make such findings amounted to an error of law. Specifically, the court considered whether the Regulator's decision correctly applied the principles governing claims for aggravation or acceleration of a pre-existing disease, and whether the Regulator had overlooked the progressive nature of the disease as a contributing factor.
The Court of Appeal held that the Regulator's determination did not contain all essential findings of fact, and that this constituted an error of law. The Court found that the Regulator had failed to consider the progressive nature of the disease and its interaction with the applicant's employment. The Court concluded that the Regulator's failure to make findings on these points was a significant oversight, and that the determination could not stand. The appeal was thus allowed, and the matter was remitted to the Regulator for reconsideration in light of the Court's findings.
The Court of Appeal made no orders as to costs, but noted that the applicant's appeal had been successful on a significant point of law. The Regulator was directed to reconsider the applicant's claim, taking into account the Court's findings on the progressive nature of the disease and the interaction with the applicant's employment.