Skilled Group Limited v Barker - [2012] TASSC 27

[2012] TASSC 27

COURT: SUPREME COURT OF TASMANIA

CITATION: Skilled Group Limited v Barker [2012] TASSC 27

PARTIES:  SKILLED GROUP LIMITED
  v
  BARKER, Aubrey

FILE NO/S: 767/2011
JUDGMENT

APPEALED FROM: B v Skilled Group Limited (Ref No 737/2010) [2011] TASWRCT 31 (8 August 2011)

DELIVERED ON:  25 May 2012
DELIVERED AT:  Hobart
HEARING DATE:  28 November 2011
JUDGMENT OF:  Tennent J

CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Preliminary requirements – Claims for compensation – Failure to make claim within time – Generally – Mistake or ignorance – Other reasonable cause.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss32 and 38.
Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100; Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139; Murray v Baxter (1914) 18 CLR 622, Garratt v Tooheys Ltd (1949) 23 WCR 80; Telstra Corporation v Roycroft (1997) 77 FCR 358; Leech v Melbourne and Metropolitan Tramways Board [1958] VR 398, referred to.
Aust Dig Workers Compensation [300]

REPRESENTATION:

Counsel:
             Appellant:                   M K Wilkins
             Respondent:              B R McTaggart
Solicitors:
             Appellant:                   Page Seager
             Respondent:              HRAC Solicitors

Judgment Number: [2012] TASSC 27
Number of paragraphs: 40

Serial No 27/2012
File No 767/2011

SKILLED GROUP LIMITED v AUBREY BARKER

REASONS FOR JUDGMENT TENNENT J

25 May 2012

Mr Barker, the respondent to this appeal, was, until 31 August 2008, employed by the appellant. His employment then ended. In 2010, he made a claim for compensation asserting that he suffered from industrial deafness as a consequence of exposure to noise during the course of his employment with the appellant.

The Workers Rehabilitation and Compensation Act 1988 ("the Act"), s32(1) and (2), provide:
"(1) Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless –
(a) notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer of the worker or a person referred to in section 33(1)(b); and
(b) a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury, or where the injury results in the death of the worker, within 6 months after the date of the death.
(2) Subsection (1) does not apply to industrial deafness, but proceedings for the recovery under this Act of compensation in respect of industrial deafness are not maintainable unless the claim for compensation is made while the worker is still in the employment of the employer or within 6 months after the termination of that employment."
However, the Act, s38, provides:

"(1) The failure to make a claim for compensation within the period prescribed by section 32(1)(b), section 32(2) or section 32(2A) does not affect the validity of the claim if the failure was occasioned by mistake, absence from the State of the worker,…

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.

Continue reading Skilled Group Limited v Barker

Details

AGLC: Skilled Group Limited v Barker [2012] TASSC 27
Case: [2012] TASSC 27
Decision Date: 25 May 2012

CaseChat Overview and Summary

Skilled Group Limited took proceedings against Barker to obtain workers compensation. Barker, a former employee, claimed he suffered an injury in the course of employment. Skilled Group argued Barker failed to meet the preliminary requirements of making a claim within the stipulated time. The legal issues centred on whether Barker's delay in making the claim could be excused due to a mistake, ignorance, or other reasonable cause. The court examined whether Barker had a valid reason for not meeting the time limit and whether any delay in lodging the claim was justified.

The court considered the statutory provisions governing the time limits for claims and the criteria for excusing delays. It explored whether Barker's delay was due to a genuine mistake or ignorance about the injury, or whether there was another reasonable cause that could justify the late claim. The court found that Barker had failed to provide sufficient evidence to establish that his delay was due to any mistake, ignorance, or other reasonable cause. The court held that Barker's lack of diligence in pursuing his claim within the time limit was not excusable, and therefore his claim was invalid.

Given the court's findings, it dismissed Barker's claim for workers compensation. The court concluded that Barker did not meet the preliminary requirement of lodging his claim within the required timeframe and that there was no valid reason to excuse the delay. The court ruled that Barker's failure to make a timely claim precluded him from obtaining compensation.

Orders