State of Tasmania v Brett

[2002] TASSC 33

CITATION: State of Tasmania v Brett [2002] TASSC 33

PARTIES:  STATE OF TASMANIA
  v
  BRETT, Lyell Huon

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 94/2001
DELIVERED ON:  5 June 2002
DELIVERED AT:  Hobart
HEARING DATES:  5 June 2002
JUDGMENT OF:  Underwood, Crawford and Slicer JJ

[Edited edition of reason for judgment delivered orally]

CATCHWORDS:

Workers Compensation - Employment risks - "Arising in the course of the employment" - Disease contracted during period of employment but not incapacitating until after period of employment.
Workers Rehabilitation and Compensation Act1988 (Tas), ss3(5), 25.

Sherriff v Community Pride Inc & Anor (1999) 8 Tas R 351, followed.
Aust Dig Workers Compensation [10].

REPRESENTATION:

Counsel:
           Appellant:  P Turner
           Respondent:  A I Gaggin
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Murdoch Clarke

Judgment Number: [2002] TASSC 33
Number of Paragraphs: 4

Serial No 33/2002
File No FCA 94/2001

STATE OF TASMANIA v LYELL HUON BRETT

REASONS FOR JUDGMENT FULL COURT

(DELIVERED ORALLY) UNDERWOOD J

CRAWFORD J
SLICER J
5 June 2002

Order of the Court

Appeal dismissed.

Serial No 33/2002
File No FCA 94/2001

STATE OF TASMANIA v LYELL HUON BRETT

REASONS FOR JUDGMENT FULL COURT

(DELIVERED ORALLY) UNDERWOOD J

CRAWFORD J
SLICER J
5 June 2002

The arguments put to this Court on behalf of the appellant in support of its two grounds of appeal, were put to Cox CJ in Sherriff v Community Pride Inc & Anor (1999) 8 Tas R 351, and to the learned primary judge in this case. We can detect no error in the reasons for judgment in either of those cases. There is nothing to be gained by this Court using different words to restate those reasons.

As counsel for the appellant rightly submitted, in the case of an injury being a disease, no liability to pay compensation will arise qua the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s25, until the injury is suffered as prescribed by the Act, s3(5). However, it does not follow that the time prescribed by that subsection governs the words in s25 "arising out of and in the course of the employment".

Upon a proper construction of the Act, liability will attach to the employer in the case of an injury that is a disease, at the time fixed by s3(5) if, at that time, the worker suffers from a disease being one that, regardless of the time it became incapacitating, arose out of and in the course of the employment and of course, is one to which the employment contributed to a substantial degree.

We would adopt the reasons for judgment given in Sheriff and by the learned judge at first instance in this case. The appeal is dismissed.

CaseChat Overview and Summary

In the case of the State of Tasmania v Lyell Huon Brett, the Full Court of the Supreme Court of Tasmania heard an appeal brought by the State against the decision of a primary judge that awarded compensation to Brett, who had contracted a disease during his employment with the State. The disease did not become incapacitating until after Brett's employment had ended. The appeal centered on the interpretation of the Workers Rehabilitation and Compensation Act 1988 and whether the disease contracted by Brett arose out of and in the course of his employment. The legal issues before the Court were whether the disease contracted by Brett during his employment could be considered to have "arisen out of and in the course of" his employment, and if so, whether compensation should be awarded.

The Court found that under the Act, compensation liability would arise at the time prescribed by s3(5) if, at that time, the worker suffered from a disease that arose out of and in the course of the employment and to which the employment contributed to a substantial degree. The Court noted that while the disease did not become incapacitating until after Brett's employment had ended, it was still possible that the disease arose out of and in the course of his employment. The Court adopted the reasoning of the Full Court in Sherriff v Community Pride Inc & Anor (1999) 8 Tas R 351 and the primary judge's decision in the present case, finding that there was no error in their judgments.

The appeal was dismissed, and the Court confirmed that Brett's disease arose out of and in the course of his employment, and the State of Tasmania was liable to pay compensation to Brett under the Act. The Court found no error in the decisions of the Full Court in Sherriff v Community Pride Inc & Anor (1999) 8 Tas R 351 or the primary judge in the present case. The Court noted that the time prescribed by s3(5) of the Act governed when compensation liability arose, but that did not determine whether the disease arose out of and in the course of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established