Pasminco Australia Limited v Fairchild - [1990] TASSC 61

Serial No 59/1990
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Pasminco Australia Limited v Fairchild [1990] TASSC 61; A59/1990

PARTIES:  PASMINCO AUSTRALIA LIMITED
  v
  FAIRCHILD, Howard John

FILE NO/S:  LCA 17/1990
DELIVERED ON:  9 October 1990
JUDGMENT OF:  Zeeman J

Judgment Number: A59/1990
Number of paragraphs: 23

Serial No 59/1990
List "A"
File No LCA 17/1990

PASMINCO AUSTRALIA LIMITED v HOWARD JOHN FAIRCHILD

REASONS FOR JUDGMENT ZEEMAN J

9 October 1990

This is an appeal from the workers compensation division of a court of requests pursuant to s63 of the Workers Compensation Act 1988.

The learned commissioner who dealt with this matter determined that the respondent was entitled to weekly payments of compensation in respect of a period of total disability whilst the respondent was suffering from tinea. His Honour did not make any final determination as to the amount to which the respondent was entitled, leaving it to the parties to settle the amount of compensation due in accordance with his reasons and reserving leave to refer the matter back to him in default of agreement. Having regard to the wide terms of s63(1) it appears that the appeal is competent and it was not otherwise submitted to me.

The learned commissioner did not make express findings of fact as to all relevant matters, but it appears from the written reasons for his determination that he either expressly or impliedly made the following findings of fact:

1The respondent was a labourer in a zinc production plant operated by the appellant.
2A medical practitioner examined the respondent on 10 December 1989, found him to be suffering from tinea of both feet and certified him as being unfit for work and prescribed treatment which was successful.
3The respondent was wholly incapacitated from working as a result of his condition for a period of about ten days.
4It was not possible to find that the respondent contracted tinea at work.
5Whilst engaged in his employment with the appellant, the respondent was required to work in wet conditions which caused his feet to sweat, aggravating the tinea to the degree that the respondent became wholly incapacitated from working.

Upon the basis of those findings of fact, the learned commissioner held that the respondent was entitled to be paid weekly compensation in respect of the period of incapacity upon the basis that the respondent suffered an injury, namely a disease. The basis for that conclusion appears from the following portion of his Honour's reasons:

"Although the words aggravation, exacerbation and recurrence have been omitted from the definition of the word disease in the new Act, I think that the concept of disease in the new Act includes the aggravation of a pre–existing disease. It must always be shown, of course, that the disease arose out of the employment and was substantially contributed to by the employment."

In making those observations, the learned commissioner no doubt had in mind the definition of "disease" in s3(1) of the Workers' Compensation Act 1927 which defined that…

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: [1990] TASSC 61
Decision Date: 9 October 1990

CaseChat Overview and Summary

Pasminco Australia Limited appealed against a decision of the Workers Compensation division of a court of requests that Howard John Fairchild was entitled to weekly payments of compensation for a period of total disability while suffering from tinea. The court had to determine whether the aggravation of a pre-existing disease could be considered as an injury under the Workers Compensation Act 1988, which would entitle the respondent to compensation. The appeal hinged on the interpretation of the term "disease" as defined in the Act, and whether it encompassed the aggravation of a pre-existing condition. The court considered the definition of "injury" and "disease" in the Act, as well as the relevant provisions for determining an employer's liability to pay compensation. The court found that the learned commissioner's conclusion that the aggravation of a pre-existing disease was encompassed within the concept of disease was incorrect. However, the injury that resulted in the aggravation of the disease did constitute an injury in the ordinary meaning of the word, and therefore the respondent was entitled to compensation under s25(1)(a) of the Act. The appeal was dismissed.

Orders