Roche Bros Pty Ltd v Brown - [1989] TASSC 26

Serial No 20/1989
List "A"

CITATION: Roche Bros Pty Ltd v Brown [1989] TASSC 26; (1989) Tas R 42; A20/1989

PARTIES:  ROCHE BROS PTY LTD
  v
  BROWN, Arthur William

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 58/1988
DELIVERED ON:  16 May 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Neasey, Underwood and Crawford JJ

Judgment Number: A20/1989
Number of paragraphs: 64

Serial No 20/1989
List "A"
File No FCA 58/1988

ROCHE BROS PTY LTD v ARTHUR WILLIAM BROWN

REASONS FOR JUDGMENT FULL COURT

NEASEY J
UNDERWOOD J
CRAWFORD J
16 May 1989

Order of the Court:

Appeal dismissed.

Serial No 20/1989
List "A"
File No FCA 58/1988

ROCHE BROS PTY LTD v ARTHUR WILLIAM BROWN

REASONS FOR JUDGMENT FULL COURT:

NEASEY J
16 May 1989

I agree with the judgment of Crawford J.
File No FCA 58/1988

ROCHE BROS PTY LTD v ARTHUR WILLIAM BROWN

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
16 May 1989

The facts are fully set out in the judgment of Crawford J I agree with his Honour's reasons with respect to grounds 1, 2 and 4 and the order that he proposes should be made but make some observations of my own with respect to ground 3 which alleges error in the finding that the date of disablement was the 17 May 1984.

By virtue of the Workers' Compensation Act 1927, s5(1), disablement as a result of a disease, as defined by the Act, imposes liability to pay compensation in accordance with the provisions of Sch. 1. Upon the occurrence of such disablement liability is fixed. That proposition applies equally to cases where liability is incurred by reason of the occurrence of personal injury by accident which arose out of and in the course of employment. See Fenton v Hutton Neasey J 3472. Accepting that the condition known as industrial deafness was one of gradual onset, the appellant contends that there is no evidence to support the finding that disablement occurred on the 17 May 1984 or, for the reasons explained by Crawford J at any time after the 1 January 1984.

I agree with the reasoning of Chambers J in Boucher v Motors Pty Ltd [1976] Tas SR 130 at pp136–138 and his conclusion that disablement in s5(1) means incapacity, either wholly or partially, for work. In his judgment, the Chief Justice, at p135 (ibid) said that disablement meant "loss or reduction of the ability to work." The same meaning of the word disablement when used in Workers Compensation legislation was adopted in Peters Ice Cream Pty Ltd v Feeney [1970] 3 NSWR 125 and Wati v The Attorney–General [1963] NZLR 139. Petrov v A B Moore Pty Ltd Cosgrove 881 was a case in which an unemployed plaintiff claimed entitlement to compensation for industrial deafness. His Honour referred to Boucher's case and noted that in that case, during the whole of the relevant period, the plaintiff had been employed. His Honour said, "[Boucher

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: [1989] TASSC 26
Decision Date: 16 May 1989

CaseChat Overview and Summary

Roche Bros Pty Ltd appealed against a decision of Nettlefold J, which awarded the respondent, Arthur William Brown, compensation for industrial deafness arising from his employment with Roche Bros Pty Ltd. The Full Court of the Supreme Court of Tasmania, comprising Neasey, Underwood, and Crawford JJ, dismissed the appeal. The appeal raised four grounds: (1) the trial judge erred in finding that Brown suffered personal injury by accident; (2) the trial judge erred in finding that Brown was entitled to weekly payments; (3) the trial judge erred in finding that Brown's disablement occurred on or about 17 May 1984; and (4) the trial judge erred in finding that no percentage of Brown's hearing defectiveness was contracted outside the state. The Court found that grounds 1 and 4 were not properly before it, as they did not relate to any judgment, decision, order, or determination of Nettlefold J. Regarding ground 2, the Court held that the trial judge did not err in finding that Brown was entitled to weekly payments, as compensation for industrial deafness is payable under the Workers' Compensation Act 1927. Lastly, the Court found that the trial judge did not err in finding that Brown's disablement occurred on or about 17 May 1984, as disablement in the context of workers' compensation legislation refers to an inability or reduced ability to work. The Court dismissed the appeal and affirmed the judgment of the trial judge.

Orders