State of Tasmania v Brett
[2001] TASSC 149
•20 December 2001
[2001] TASSC 149
CITATION: State of Tasmania v Brett [2001] TASSC 149
PARTIES: STATE OF TASMANIA (THE)
v
BRETT, Lyell Huon
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 94/2001
DELIVERED ON: 20 December 2001
DELIVERED AT: Hobart
HEARING DATES: 11 December 2001
JUDGMENT OF: Evans J
CATCHWORDS:
Workers Compensation - Employment risks - "Arising in the course of the employment" - Disease suffered after period of employment.
Pasminco Australia Ltd v Fairchild A57/1991, distinguished.
Sherriff v Community Pride Inc & Anor (1999) 8 Tas R 351, applied.
Workers Rehabilitation and Compensation Act 1988, s25(1)(b).
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: [2001] TASSC 149
Number of Paragraphs: 14
Serial No 149/2001
File No LCA 94/2001
THE STATE OF TASMANIA v LYELL HUON BRETT
REASONS FOR JUDGMENT EVANS J
20 December 2001
The respondent to this appeal served as a police officer until he resigned from that position on 3 November 1993. It is common ground between the parties that, in the course of that service, the respondent was exposed to a number of traumatic incidents which led to him suffering from a post-traumatic stress disorder. Symptoms of that disorder, primarily nightmares, were manifested about two years after the respondent resigned from the police force. Whilst, to date, the symptoms have not caused the respondent any loss of income, they have caused him to incur medical expenses. When the respondent became aware that his condition was one in respect of which he could claim workers compensation, notice of his injury was given to the Commissioner of Police under cover of a letter dated 11 June 1998. The respondent subsequently made a claim for compensation which was rejected. He referred the claim to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") which determined that the appellant was liable to pay the respondent compensation in respect of the disorder. The appellant has appealed against that determination.
The first two grounds of appeal challenge the finding of the Tribunal, constituted by its learned Chief Commissioner, that in consequence of the disorder the respondent suffered an incapacity for work. When a worker's claim for compensation is based on an injury which is a disease, in order to render the employer liable for compensation, the worker must establish that as a consequence of the disease he or she is totally or partially incapacitated; Pasminco Metals-EZ v Kaitinis (1993) 2 Tas R 387.
The learned Chief Commissioner found that by April 1996, the respondent's symptoms were such as to warrant the conclusion that he was suffering from a post-traumatic stress disorder and that from that time the respondent had been unable to undertake work which might expose him to traumatic incidents. That finding was consistent with the evidence and is not challenged by counsel for the appellant. The Workers Rehabilitation and Compensation Act 1988 ("the Act"), s3(5)(a), provides that a disease is deemed to have occurred on the day on which it totally or partially incapacitates the worker. The learned Chief Commissioner found that the respondent had been partially incapacitated by the disease since April 1996. That finding is challenged by counsel for the appellant who submits that it is erroneous as:
· the respondent's incapacity was only notional; or
· work which might expose the respondent to traumatic incidents was not work which the respondent was undertaking, or might reasonably be expected to undertake, for the purposes of the test for incapacity enunciated in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171.
The respondent's incapacity is notional in the sense that it has not caused him to suffer any loss of income and it may not cause him to suffer loss in the future. He has avoided any loss of income to date because, since June 1994, he has been successfully employed as a sales representative with a radio station and he has done well in that position. In these circumstances, insofar as the disease has rendered the respondent unable to pursue work which might expose him to traumatic incidents, is the respondent incapacitated for the purposes of the Act?
The decision in Arnotts Snack Products Pty Ltd (supra) relates to the Workers Compensation Act 1926 (NSW). That legislation, like the Act, did not define the expression "incapacity for work". As to that expression, Mason, Wilson, Deane and Dawson JJ said, at 177:
"… incapacity for work denotes a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work, though this incapacity may not necessarily attract compensation under s11(1) because it results in no loss of earning power."
The above encapsulation of what amounts to incapacity is consistent with a number of prior decisions, including Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585 where, Kitto J, at 621 said that the authorities:
"… establish that 'incapacity for work' is an economic and not a physical fact, and that the Act provides insurance in the name of compensation: Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW), at p 22; 62 WN, at p 235. But it is I think, erroneous to interpret such statements as meaning that compensatable incapacity for work cannot exist where the injury does not result in any loss of wages under the contract of employment in force at the time of the injury. Loss of wages is in most cases a result of, but it does not itself constitute, the relevant economic fact. That fact is the inability, or the reduced ability, by reason of a physical deficiency, to sell work for wages."
In this case, if the respondent, for any reason, loses his present employment, when he goes back into the labour market he will be unable to apply for any position which might expose him to traumatic incidents. In view of his prior experience as a police officer, he might reasonably have been expected to apply for employment which involves activities such as policing, security, fire fighting or search and rescue. Because of his disability, he is now unable to pursue employment opportunities involving those activities as it is likely that the employment would expose him to traumatic incidents. Plainly this impacts adversely on the respondent's ability to market his labour for wages. That being so, in my view, the learned Chief Commissioner was bound to find, as he did, that since August 1996, the respondent has been partially incapacitated for work by reason of the disease. No error of law is involved in the learned Chief Commissioner's determination to that effect.
The third ground of appeal challenges the learned Chief Commissioner's finding that notwithstanding that the respondent did not suffer from the post-traumatic stress disorder until April 1996, some 2½ years after he resigned from the police force, that disease arose in the course of the respondent's employment for the purposes of the Act, s25(1)(b). Counsel for the appellant concedes that the learned Chief Commissioner's finding in this regard is consistent with the decision in Sherriff v Community Pride Inc & Anor (1999) 8 Tas R 351, but submits that that decision is wrong. Counsel contends that there cannot be a finding that a disease arose in the course of a worker's employment unless the disease was suffered during the period of the employment; in result, a disease which is not suffered until after a worker's employment has been terminated cannot be found to have arisen in the course of the employment. In support of this challenge to the authority of Sherriff v Community Pride Inc & Anor (supra), counsel relies on the decision of Wright J in Pasminco Australia Ltd v Fairchild A57/1991. In that case, in the course of considering whether the respondent worker was entitled to compensation for his incapacity for work as a consequence of tinea contracted during the period of his employment with the appellant, Wright J said of the expression "arising out of and in the course of his employment" in the Act, s25(1)(b) at 1:
"As previous judgments in this Court have demonstrated, the terminology employed in the 1988 Workers Compensation Act is both confused and confusing. It may be argued that it is reasonably apparent that the intention of Parliament was to provide compensation to a worker who is incapacitated by disease whether or not the disease originally develops as a consequence of his working environment, provided that environment contributes substantially to his disablement. If this was Parliament's purpose, why it could not have been stated more simply than it is in s25(1)(b), is a mystery to me.
The plethora of litigation in this and other jurisdictions dealing with similar legislation over many decades should have produced greater clarity in expressing such a concept than is to be found in s25 of the 1988 Act. I go so far as to say that, whatever its meaning, s25 is in need of urgent revision if the workers of this State are not to be severely disadvantaged by legislative provisions which, in respect of diseases in general, are no more beneficial than those contained in the repealed Workers' Compensation Act 1927 and which, in respect of Schedule II diseases specifically mentioned in that Act, are far less beneficial. I say this because it is plain that under the present Act, in the case of 'an injury, which is a disease' (itself almost a contradiction in terms in my opinion), the worker must show that it is an injury 'arising out of and in the course of his employment'. The meaning of this phrase is clear. As stated by Gibbs CJ in Hockey v Yelland (1984) 56 ALR 215 at pp220 - 221:
'The meaning of the expression "arising out of or in the course of employment" is well understood. The words "out of" express causality, and require that the injury had its origin in the employment, but the words "in the course of" require that the injury must occur "whilst the worker is doing something which is part of his service to his employer or master or incidental to the employment, or, in other words, whether the workman was at the time of the injury about his own business or that of his master": South Maitland Railways Pty Ltd v James (1943) 67 CLR 496 at 502. That case was decided when the phrase was conjunctive and required two conditions to be fulfilled, but the meaning of the words has not altered now that in more liberal legislation the expression is disjunctive'."
At 2 - 3 Wright J said, with reference to the requirement that the tinea occurred in the course of the worker's employment that:
"… it is still necessary to show that the compensable disease occurred when the worker was performing his employment ¾ not necessarily that he was actually engaged in some specific task that he was required to carry out ¾ but still that it came about during the currency of his attendance at his job. To look for such a factor in respect of a disease which is usually of gradual or even imperceptible onset and which may fluctuate between disabling and non–disabling phases, is a difficult, if not well nigh impossible, task. To say when the compensable event actually occurred will often be as difficult as defining when day becomes night or hot becomes cold. Nonetheless that is the task which has been cast upon the Commissioner."
Counsel for the appellant submits that Wright J's decision is authority for the proposition that if incapacity from a disease is not suffered until subsequent to the termination of a worker's employment, it cannot be found to have occurred "in the course of his employment". Whilst this submission may reflect the views expressed by Wright J, it should be noted that the focus of his Honour's decision was the need to establish when the disease occurred and the difficulty of that task. His Honour did not address the issue of whether liability could be established when a disease precipitated by employment did not cause incapacity until after the employment had ceased. Had this been the issue dealt with by Wright J, his attention would no doubt have been drawn to a number of sections in the Act that recognise that a claim for compensation in respect of a disease can be sustained, albeit that incapacity from the disease does not arise until after the termination of the worker's employment.
In Sherriff, Cox CJ, considered an appeal against a decision of the Tribunal which dismissed a claim for compensation because the worker's injury, a disease, had occurred after he resigned from the employment which caused it and, in consequence, the Tribunal had held it could not be said to have arisen in the course of his employment. The Chief Justice referred to a number of High Court decisions, including, South Maitland Railways Pty Ltd v James (1943) 67 CLR 496; Hockey v Yelland & Ors (1984) 157 CLR 124 and Kavanagh v The Commonwealth (1960) 103 CLR 547, which bear on the meaning to be given to the expression "arising out of and in the course of employment" and observed at 357 (pars9 and 10) that difficulty arises under the Act in relation to the requirement that a disease must arise in the course of the worker's employment as:
"Most compensable diseases are of gradual onset and they progress to the stage where compensation is payable. The entitlement to compensation only arises when the worker is wholly or partially incapacitated by the disease (Pasminco Metals-EZ v Kaitinis (1993) 2 Tas R 387). A reading of s25(1) in conjunction with s3(5), treating the dicta of the High Court as laying down that only where the injury is suffered while the worker is doing something in the exercise of his functions for his employer, would mean that if disease is suffered by activities undertaken in the course of his employment but progresses naturally to a state of incapacity subsequently to the termination of his employment, the worker could obtain no entitlement to workers compensation. This is because the injury is deemed to have occurred on the day on which he is or is deemed by a statutory fiction to have become incapacitated for work. The fiction is contained in s3(5) which I have already set out.
In the present case, the worker's disease clearly arose out of his employment and in the course of undertaking the duties of his employment. It was found that his employment contributed to it to a substantial degree. It only became compensable when it reached the stage of being an injury and that stage was only reached when the worker became incapacitated, an event which was deemed to have occurred when the doctor certified him incapacitated seven months after he left the employment in question."
His Honour then referred to the Act, ss25A, 26 and 32(2A). The Act, s25A, contemplates that a claim for compensation may be substantiated by a mining employee who has ceased that employment and is suffering from a disease caused by work. The Act, s26, contemplates that a claim for compensation may be substantiated by a worker who suffers a particular kind of disease if the worker has been employed in work of a particular type. The Act, s32(2A), contemplates that a claim for compensation may be made by a mining employee who suffers from a disease detailed in that provision within the time there specified after the worker ceased to be a mining employee. The latter provision would serve no purpose whatsoever if the appellant was correct in contending that if the disease is not suffered during the period of the worker's employment, it cannot be found to have arisen in the course of the employment. Similarly, if the contention was correct, the utility of the Act, ss25A and 26, would be greatly reduced.
At 360 (pars14 and 15), Cox CJ said:
"The use of the phrase 'arising out of and in the course of his employment', although well understood in cases of injury by accident, was totally inappropriate to cases of progressive disease. There is no reason to suppose that Parliament intended that workers who suffered a disease which incapacitated them before their employment terminated should receive compensation provided their disease arose out of and in the course of activities necessary or incidental to their employment, while those who, though suffering a disease arising in exactly the same way should not be so entitled merely because they had ceased to work for that employer. What surely was contemplated was that the disease arose in circumstances where the worker was carrying out his functions on behalf of his employer. The relevant phrase is not 'injury which is a disease arising out of and occurring in the course of his employment'. The paragraph requires that injury which is a disease, to be compensable, must arise out of the employment and in the performance of activities in the course of the employment. The disease is only compensable, however, when it has reached the stage of producing incapacity.
Though the injury is deemed to occur on the date of incapacity (often ascertained by statutory fiction), I am of the opinion that s25(1)(b) requires that the injury, that is, the morbid condition amounting to a disease which is then producing incapacity, should arise out of and in the course of employment in the sense of having its origin in the performance of activities in the service of his employer or which are incidental to his employment. Both concepts are subsumed by the additionally expressed requirement that the morbid condition was one to which his employment contributed to a substantial degree."
His Honour observed that the above conclusion was consistent with the Act, s78. That section proceeds on the basis that a claim for compensation can be made against a former employer in respect of an injury contracted by a gradual process. The Act, s80, is also significant in that it provides that the employer to whom notice of injury is to be given in respect of a claim made pursuant to the Act, s78:
"… is the employer who last employed the worker in the employment to the nature of which the relevant disease was due, and the notice may be given notwithstanding that the worker has voluntarily left his employment."
The provision that notice may be given, notwithstanding that the worker has voluntarily left his employment, clearly envisages that a worker may substantiate a claim for compensation in respect of a disease, notwithstanding that the incapacity for the disease did not arise during the period of the employment to which it is attributed.
The sections in the Act to which reference has been made and the reasons expressed by Cox CJ, leave me in no doubt that the contention advanced on behalf of the appellant is wrong and that Cox CJ correctly construed the Act, s25(1)(b), as requiring that the morbid condition amounting to a disease which is productive of incapacity should arise out of and in the course of the employment in the sense of having its origin in the performance of activities in the service of the employer or which are incidental to the employment. A worker who suffers incapacity from a disease which has its origin in the performance of such activities may establish an entitlement to compensation from the employer notwithstanding that the incapacity was suffered after the termination of the employment.
The final ground of appeal advanced on behalf of the appellant challenges the learned Chief Commissioner's finding that notice of the claim was given by the respondent to the appellant as soon as practicable. This ground of appeal cannot be sustained. There was ample evidence to warrant the learned Chief Commissioner's finding and in making that finding, he did not err in law.
The appeal is dismissed.
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