State of Tasmania v Brett

[2002] TASSC 33

[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

1. 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.

1. 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".

1. 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.

1. 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.