Nazar v Hydro Electric Corporation - [2022] TASFC 11

[2022] TASFC 11

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Nazar v Hydro Electric Corporation [2022] TASFC 11
PARTIES:	NAZAR, Buddy Detlef
v
HYDRO ELECTRIC CORPORATION
FILE NO:	1611/2022
JUDGMENT
APPEALED FROM:	Hydro Electric Corporation v Nazar [2022] TASSC 37
DELIVERED ON:	6 December 2022
DELIVERED AT:	Hobart
HEARING DATE:	12 October 2022
JUDGMENT OF:	Blow CJ, Estcourt J, Jago J
CATCHWORDS:

Workers' Compensation – Entitlement to compensation – Employment related injury, disability or disease – Arising in course of employment – Worker living away and on call – Injured while walking and within mobile phone range.

Workers Rehabilitation and Compensation Act 1988 (Tas), s 25(1)(a).
Kavanagh v Commonwealth (1960) 103 CLR 547; Henderson v Commissioner of Railways (Western
Australia) (1937) 58 CLR 281; Humphrey Earl Limited v Speechley (1951) 84 CLR 126; Hatzimanolis v ANI
Corporation Ltd (1992) 173 CLR 473; Comcare v PVYW [2013] HCA 41, 250 CLR 245; St Helens Colliery
Company Limited v Hewitson [1924] AC 59; Potts v Commonwealth (1971) 18 FLR 128; Wilkinson v
Forestry Commission [1986] TASSC 47, discussed.

Aust Dig Workers Compensation [91]

REPRESENTATION:

Counsel:

Appellant: K E Read SC, A Williams
Respondent: P L Jackson SC

Solicitors:

Appellant: McLean McKenzie Topfer
Respondent: Abetz Curtis Lawyers

Judgment Number:	[2022] TASFC 11
Number of paragraphs:	113

Serial No 11/2022

File No FCA 1611/2022

BUDDY DETLEF NAZAR v HYDRO ELECTRIC CORPORATION

REASONS FOR JUDGMENT	FULL COURT BLOW CJ ESTCOURT J JAGO J 6 December 2022
Orders of the Court:

1            Appeal allowed.
2            Orders of Geason J set aside.
3            Appeal 258/2021 dismissed.
2   No 11/2022

BUDDY DETLEF NAZAR v HYDRO ELECTRIC CORPORATION

REASONS FOR JUDGMENT

FULL COURT
BLOW CJ
6 December 2022

1 The appellant, Buddy Nazar, broke his leg on 25 May 2018. He claimed workers compensation in respect of that injury from his employer, the Hydro Electric Corporation ("the HEC"). Liability was disputed. There was a hearing before the Workers Rehabilitation and Compensation Tribunal. Its Chief Commissioner, Ms A Clues, made a determination that the appellant's injuries arose in the course of his employment: N v Hydro Electric Corporation [2021] TASWRCT 2. The employer appealed. The appeal was heard by Geason J, who made orders to the effect that the determination of the Tribunal be set aside and the referral to the Tribunal dismissed: Hydro Electric Corporation v Nazar [2022] TASSC 37. This is an appeal by the worker from that judgment.
2 I have read the reasons for judgment of Estcourt J, and agree with him that this appeal should be allowed, the orders of Geason J set aside, and the determination of the Tribunal restored.

The facts

3 The facts of this case were not in dispute. When the worker broke his leg, he was walking with his partner and his dog beside the lake at Tullah. He and his partner had decided to go for a stroll. The party…

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: [2022] TASFC 11
Decision Date: 6 December 2022

CaseChat Overview and Summary

The parties in this matter were the applicant, Mr. Nazar, and the respondent, Hydro Electric Corporation. The dispute concerned Mr. Nazar's entitlement to workers' compensation for an injury he sustained. The case was heard by the Full Court of the Supreme Court of Tasmania, comprising Blow CJ, Estcourt J, and Jago J.

The central legal issue before the court was whether Mr. Nazar's injury, sustained while walking within mobile phone range of his workplace, arose out of or in the course of his employment. Mr. Nazar was living away from his usual residence and was on call at the time of the incident.

The court considered the principles governing injuries sustained by workers who are living away from home and are on call. It was held that the employer's responsibility for the worker's safety extends to periods when the worker is not actively engaged in their duties but remains subject to the employer's control or is in a situation necessitated by their employment. The court reasoned that Mr. Nazar's presence at the location and his obligation to be on call were directly linked to his employment. Therefore, his injury, occurring while he was within mobile phone range and thus able to respond to a call, was considered to have arisen out of or in the course of his employment.

The court found in favour of Mr. Nazar, upholding his entitlement to workers' compensation.

Orders