Martin v Employers Mutual Ltd - [2012] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
Question of Law Reserved
MARTIN v EMPLOYERS MUTUAL LTD
[2012] SASCFC 36
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)
20 April 2012
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - EVIDENCE - ONUS OF PROOF
Question of law referred by the Full Bench of the Workers Compensation Tribunal - whether in the judicial determination of a dispute as to whether the worker has no current work capacity within the meaning of s 35B(1) of the Workers Rehabilitation and Compensation Act 1986 (SA), it is the worker or the compensating authority who has the onus of proof - discussion of principles relating to appropriateness of question referred - question reformulated by Tribunal.
Held: the compensating authority bears the onus of proof in the judicial determination by the Tribunal.
Supreme Court Act 1935 (SA); Workers Rehabilitation and Compensation Act 1986 (SA) s 3, s 35, s 35A, s 35B, s 35C, s 36, s 53, s 86A, s 88DA, s 89A, s 90, s 91, s 92D, s 94A, s 108; Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA) s 15; Compensation (Commonwealth Government Employees) Act 1971 (Cth); Commonwealth Employees Compensation Act 1930-59 (Cth), referred to.
The Commonwealth v Muratore (1978) 141 CLR 296; J & H Timbers Pty Ltd v Nelson (1972) 124 CLR 625; Phillips v The Commonwealth (1964) 110 CLR 347; Rapson v WorkCover Corporation (2007) 98 SASR 86, applied.
Royal Adelaide Hospital v Withers [1999] SAWCT 132; Kairns v WorkCover Corporation (2004) 90 SASR 81; WorkCover Corporation v Davey (2011) 110 SASR 172; WorkCover Corporation v Fogliano (2000) 76 SASR 192; Commonwealth v Portelli (1982) 59 FLR 203; WorkCover Corporation v Toohey [2001] SAWCT 53; Simpson Ltd v Arcipreste (1989) 53 SASR 9; Mitsubishi Motors Australia Ltd v Sosa (Unreported, Supreme Court of South Australia, Full Court, 8 June 1995, Jdgt No S5084), considered.

Question of Law Reserved
MARTIN v EMPLOYERS MUTUAL LTD
[2012] SASCFC 36
Full Court: Doyle CJ, Anderson and White JJ

DOYLE CJ: I would answer the question reserved for consideration of this Court in the manner proposed by White J, and for the reasons that he gives for answering it in that manner. There is nothing that I wish to add to his reasons.
ANDERSON J. I agree that the question should be answered in the manner suggested by White J. I agree with White J’s reasons.
WHITE J. The Full Bench of the Workers Compensation Tribunal has, under s 86A of the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA), referred a question of law to this Court. The question concerns the onus of proof in proceedings for the judicial determination of a dispute arising…

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: [2012] SASCFC 36
Decision Date: 20 April 2012

CaseChat Overview and Summary

The case of *Martin v Employers Mutual Ltd* concerned a question of law referred to the Full Court of the Supreme Court of South Australia by the Workers Compensation Tribunal. The dispute centred on whether the worker or the compensating authority bore the onus of proof in determining if a worker had no current work capacity under section 35B(1) of the *Workers Rehabilitation and Compensation Act 1986* (SA).

The legal issue before the Court was to determine which party carried the burden of proof when a dispute arose regarding a worker's current work capacity, specifically in the context of the cessation of weekly payments after the third entitlement period. The Tribunal had reformulated the question referred by the Full Bench to clarify the precise legal point in dispute.

The Court reasoned that while certain personal factors of a worker might suggest an evidential onus on the worker, the compensating authority would typically possess significant material relevant to work capacity after extensive income maintenance, medical assessments, and rehabilitation efforts. The Court found no inherent reason to shift the legal burden of proof from the compensating authority, particularly given the usual position in disputed discontinuances or reductions of weekly payments where the authority bears the onus. The Court also considered the structure of sections 35-35C of the Act, concluding they define circumstances for both cessation and continuation of entitlements, rather than creating a wholly new entitlement process.

Ultimately, the Court held that Employers Mutual Ltd, having asserted a change in the worker's incapacity leading to the cessation of income maintenance, bore the burden of proof. Therefore, the Court answered the reformulated question by stating that it was Employers Mutual Ltd's responsibility to prove that Mr Martin had no current work capacity.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ANDERSON J WHITE J

One final consideration is this. In the usual case of a disputed discontinuance of weekly payments under s 36(1)(b) on the ground that a worker has ceased to be incapacitated, and in the usual case of a disputed reduction of weekly payments under s 36(2)(b) on the ground that there has been a reduction in the extent of the incapacity, it is the compensating authority which has the onus of proof. This is the effect of Phillips and Muratore, and is the position adopted in the Tribunal. See, for example, Royal Adelaide Hospital v Withers;[17] WorkCover Corporation v Toohey.[18] There would be some incongruity if, in a judicial determination occurring before the expiry of the third entitlement period, the compensating authority has the onus, but, in a judicial determination of the same issue after the expiry of the third entitlement period, the worker has the onus.[17] [1999] SAWCT 132.[18] [2001] SAWCT 53 at [27].Conclusion The issues raised by the referred question are not easy and there are considerations which point in each direction. I am persuaded by the consideration that EML, by the determination of 29 June 2010, effectively asserted that a change in the extent of Mr Martin’s incapacity had occurred with the effect that his entitlement to income maintenance had ceased. I consider that in those circumstances, this Court should apply the principle recognised in the High Court authorities of Phillips, J & H Timbers and Muratore and hold that it is EML which has the burden of proof. Accordingly, I would answer the substituted question referred to this Court by saying that it is Employers Mutual Ltd which has the burden of proving that Mr Martin has no current work capacity.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, WHITE J

In my opinion, none of these matters indicates that it would be natural for the ultimate burden of proof to be on one party rather than the other. It could be said that the fact that some matters are personal to workers, such as their age, education, skills and work experience, suggests that the worker should at least have an evidential onus. However, in the context of an assessment occurring after income maintenance has been paid for some 130 weeks, after the medical and other assessments which will no doubt have been made at the request of the compensating authority under ss 53 and 108 of the WRCA, and after the attempts at rehabilitation and return to work of the injured worker contemplated by the WRCA, it is to be expected that a compensating authority will have garnered a considerable amount of material bearing on these topics. Further, the flexible procedures available to the Tribunal as to the manner and sequence in which it receives evidence[15] suggest that the matters relevant to the determination of a dispute concerning a worker’s work capacity arising from an assessment under s 35B(1) have no bearing on the location of the legal burden of proof.[15] Cf Simpson Ltd v Arcipreste (1989) 53 SASR 9 at 13-4, 23.Consideration In my opinion, the submission of the Solicitor‑General that the effect of s 35B is to bring to an end a worker’s existing entitlement to weekly payments, but to allow for the creation of a new entitlement should not be accepted. Such a construction is not supported by a consideration of Div 4 of Pt 4 of WRCA as a whole, and, in my opinion, involves some artificiality. Instead of providing for a cessation of entitlements to weekly payments and then the means by which a wholly new entitlement may be created, ss 35-35C should be understood as specifying both circumstances in which a worker’s entitlement will cease, and other circumstances in which the entitlement will continue. This is seen most clearly in the case of the worker who, before the end of the third entitlement period, had been compensated on the basis of partial incapacity only (which of course is not Mr Martin’s case). By s 35A(3)(b) a partially incapacitated worker is entitled, during the third entitlement period, to weekly payments at the rate of 80 per cent of the difference between the worker’s notional weekly earnings and the worker’s designated weekly earnings. Section 35B(1) applies to such a worker and, having regard to the fact that the worker has a partial incapacity only, it will be unusual for a total/permanent assessment to be made at the end of the third entitlement period. Further still, s 35B(4) refers only to workers who were receiving weekly payments under s 35A(3)(a), ie, workers receiving weekly payments on the basis of total incapacity. On its face, therefore, s 35B is likely to have the effect that the entitlement of the partially incapacitated worker to weekly payments of income maintenance will cease at the end of the third entitlement period.