Scully and BIS INDUSTRIES LTD (Compensation)

The applicant, a road train operator employed by BIS INDUSTRIES LTD, sought compensation for an injury allegedly sustained during his employment. The dispute centred on whether the applicant suffered a compensable injury under section 14 of the relevant Act, specifically whether his work resulted in an aggravation of a pre-existing lower back ailment. The matter came before J Sosso SM for review of a prior decision that found no compensable injury.

The court was required to determine two primary legal issues. Firstly, whether the applicant suffered from an "ailment" as defined by the Act, and if so, whether his employment with the respondent materially contributed to that ailment. Secondly, if the condition was not classified as a "disease" under the Act, the court had to consider whether the applicant suffered an "injury (other than a disease)", which generally involves a sudden and ascertainable physiological change, or if the employment aggravated a pre-existing injury.

His Honour applied the principles outlined by the High Court in *May*, which require a fact-by-fact consideration of the evidence. The court examined whether the applicant's lower back pain constituted an ailment and whether his employment, particularly the jarring experienced while driving road trains and the alleged faulty seats, materially contributed to it. The court also considered the applicant's assertion of a culture of not reporting vehicle defects, which may have prevented him from seeking timely repairs. The court noted that while the applicant had pre-existing lower back pain, it had eased significantly before his employment and he had worked in various physically demanding roles since leaving school without further trouble until his employment with the respondent.

The decision under review was set aside. His Honour found that the applicant was entitled to compensation pursuant to section 14 of the Act, and the matter was remitted to the respondent to calculate the quantum of compensation.