Workers Compensation - Proceedings to obtain compensation - Determination of claims - Evidence - Onus of proof - Tasmania - Illness or disorder of the mind arising substantially from reasonable administrative action etc - Onus on employer to prove disentitling facts.

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249

Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635

Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512

Workers Rehabilitation and Compensation Act 1988 (Tas), ss 25(1A), 49(2)(a).

Judgment Number: [2024] TASSC 36

1. This appeal concerns a dispute as to who bears the onus of proof in relation to a contention by an employer that a worker is not entitled to payments of workers compensation by reason of s 25(1A) of the Workers Rehabilitation and Compensation Act 1988 ("the Act").
2. The respondent is employed within Ambulance Tasmania as a paramedic. In August 2021 he made a claim for workers compensation in respect of a condition that he described as a stress disorder. The State disputed his claim. The Workers Rehabilitation and Compensation Tribunal ("the WRCT") held that a reasonably arguable case existed concerning the State's liability, and made an order pursuant to s 81A(3) of the Act for compensation not to be payable. Such an order operates as an interim order. The worker referred his claim for compensation to the WRCT pursuant to s 42 of the Act. That proceeding is now pending before the Tasmanian Civil and Administrative Tribunal ("TASCAT").
3. By virtue of s 25(1) of the Act, if a worker suffers a disease to which his employment contributed to a substantial degree, then the employer "is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act...to the worker".
4. The worker said in his claim form that his stress disorder was "triggered by on going [sic] investigation into breach of code of conduct". The employer contends that it is not liable to pay compensation because s 25(1A) of the Act applies. That sub-section reads as follows:

"(1A) Compensation is not payable under this Act in respect of a disease which is an illness of the mind or a disorder of the mind and which arises substantially from-

(a) reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or

(b) a decision of an employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with a worker's employment; or

(c) reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment; or

(d) the failure of an employer to take action of a type referred to in paragraph (a),(b) or (c) in relation to a worker in connection with the worker's employment if there are reasonable grounds for not taking that action; or

(e) reasonable action taken by an employer under this Act in a reasonable manner affecting a worker."

1. In the proceedings before TASCAT, the employer conceded that the worker was suffering from a disease to which his employment contributed to a substantial degree. That gave rise to a dispute as to which party bore the onus of proof as to s 25(1A). TASCAT, constituted by one of its senior members, Ms L Jack, decided to determine who bore the onus as a preliminary point. It appears that that was appropriate because the parties were not agreed as to which of them should present his or its case first. On 5 October 2023, the learned senior member made a determination that the onus of establishing that s 25(1A) applied rested upon the employer: M v The State of Tasmania (Department of Health) [2023] TASCAT 179. This is an appeal by the employer from that determination.
2. The employer relies on s 49(2) of the Act. That sub-section provides as follows:

"(2) In proceedings, to which this Act relates, that are before the Tribunal-

(a) the onus of proving an initial entitlement to a payment of compensation to a worker or the dependants of a worker lies on the worker or those dependants; and

(b) the onus of proving that a worker is no longer entitled to the payment of compensation lies on the employer."

1. The employer has never paid any compensation to the worker in respect of his claim. In the pending proceedings he is seeking to establish an initial entitlement to a payment of compensation to him. The employer contends that s 49(2)(a) therefore places the onus on him to prove that s 25(1A) does not apply in any way.
2. For the reasons stated below, I have decided that s 25(1A) creates exceptions in relation to an employer's liability to pay compensation; that a common law rule places the onus of proof in relation to those exceptions on the employer; and that s 49(2) should not be interpreted as requiring a worker to disprove the applicability of those exceptions.
3. Section 49(2) in its present form was inserted into the Act by the Workers Rehabilitation and Compensation Reform Act 1995, s 37(c). That Act also introduced an amendment that established the WRCT. Before then workers compensation disputes were determined by a Workers Compensation Commissioner sitting in the Workers Compensation Division of the Court of Requests, and there were no applicable legislative provisions relating to any onus of proof. The 1995 amendments took the workers compensation jurisdiction from a court and gave it to a tribunal.
4. In order to determine the scope and effect of s 49(2), it is necessary to consider who bore the onus of proof in particular situations in proceedings under the Act before the 1995 amendments took effect. Section 25(1A) did not exist then, but s 25(1) listed a number of situations in which compensation was not payable. Like s 25(1A), it began with the words, "Compensation is not payable under this Act in respect of ...". The subsection went on to list the following:
   • Any injury attributable to serious and wilful misconduct of a worker (with certain exceptions): s 25(2)(a)(i).
   • An intentional self-inflicted injury: s 25(2)(a)(ii).
   • The disease known as undulant fever or brucellosis (unless a medical certificate was provided): s 25(2)(b).
   • Any disease where the worker at the time of entering employment wilfully and falsely represented himself in writing as not having previously suffered from that disease: s 25(2)(c).
5. In the absence of any statutory provision as to the onus of proof, a claimant asserting a statutory right bears the onus of establishing the facts giving rise to the entitlement, but the opposite party bears the onus of establishing any facts necessary for defeating or excluding the claimant's right. The learned senior member very appropriately quoted from three leading High Court cases relating to this principle.
6. The first was Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512. That case concerned a statutory provision entitling a person who suffered an injury arising out of the use of a motor car to obtain a judgment against a nominal defendant if the identity of the motor car could not be established. The provision contained a proviso that no such judgment could be obtained unless the claimant "as soon as possible after he knew that the identity of the motor car could not be established gave to the Minister notice of intention to make the claim and a short statement of the grounds thereof". The High Court held that the onus of proving the timely giving of the required notice and statement lay on the plaintiff. Their Honours explained the relevant principles at 519-520 as follows:

"It is said that the form of the sub-section places the burden of disproof on the defendant. For the requirement of prompt notice after the injured party becomes aware of the impossibility of identifying the car inflicting the injuries is expressed in the form of a proviso. 'There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not' - per Abbott J. in Steel v Smith [1] . The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter".

1. The second of those cases was Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249. In that case Dawson, Toohey, and Gaudron JJ explained the point very simply at 257:

"For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an 'exception'), which serves to take a person outside the operation of a general rule."

"One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule."

1. The third of those cases was Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635. That case concerned a workers compensation claim in relation to the death of a worker who fell from a train whilst on his way to work. There was legislation that entitled his dependants to compensation if the death of the worker had occurred "without his own default or wilful act". There was evidence that the worker was well under the influence of alcohol at and prior to his death. The High Court held that the employer bore the burden of proving that the death resulted from the worker's "own default or wilful act".
2. Dixon J (as he then was) said the following as to the question whether the dependants bore the burden of proving that the worker died without his own default or wilful act, at 643:

"The answer depends upon the interpretation of the provision. For the burden of proof is a legal consequence of the nature of the qualification placed by the words 'without his own default or wilful act' upon the general conditions of liability stated in the clause. If these words are part of the legislative attempt to define the conditions upon which the worker's right to compensation arises, then, like all other ingredients or elements in a cause of action or title to claim, proof of the fulfilment of the conditions they describe must lie with the claimant. But if the true nature of the qualification is to introduce new matter, not as part of the primary grounds of liability, but as a special exception or condition defeating or answering liability otherwise existing, then the onus of proof lies with the party setting up default or wilful act by way of answer."

1. If one applies those principles to the provisions of the Act as they stood prior to the 1995 amendments, it is clear that s 25(1) set out the conditions upon which a worker's right to compensation arose, and s 25(2) created a series of special exceptions defeating or answering liability otherwise existing. It follows that employers bore the onus of proving s 25(2) exceptions at that time.
2. Against that background, it is necessary to determine whether s 49(2)(a), when it imposed an "onus of proving an initial entitlement to a payment of compensation", applied only to the ingredients of a right to claim under s 25(1), or whether it also extended to require workers to disprove any relevant matters listed in s 25(2) and the new s 25(1A).
3. The new provisions as to the onus of proof were not mentioned in the second reading speech relating to the 1995 Act, but were mentioned in clause notes that were made available to Members of Parliament in relation to the relevant Bill. The following appears in relation to the relevant amendment in the clause notes at page 13:

"The majority of the amendments proposed in this clause are consequential amendments resulting from the establishment of the Tribunal.

Paragraph (c) states the onus of proof requirements in proceedings before the Tribunal. A worker will be required to prove the initial entitlement to a claim; the employer will have to prove that a worker is no longer entitled to compensation. This provision makes no change to the current arrangements; they aim simply to clarify the law."

1. "Paragraph (c)" inserted s 49(2). It is significant that it was not intended to change the existing arrangements as to the assignment of the onus of proof, but only to spell them out as a result of a tribunal being established.
2. It is also significant that, if workers bear the onus of proof in relation to s 25(1A) factors, they ought logically to bear the onus in relation to s 25(2) factors because of the similar wording of the two subsections. If the employer's contentions as the onus are correct, it would follow that, whenever liability was not conceded, the claimant would bear a burden of disproof in relation to each of the many matters listed in the two subsections. That situation would be unreasonable, to the point of absurdity.
3. If Parliament had wanted to place the burden of disproof on workers, it could easily have done so using clear language.
4. For these reasons, s 49(2)(a) must be interpreted as applying only to the proof of the facts entitling a worker to compensation pursuant to s 25(1), and not to the proof of disentitling facts within the scope of s 25(1A) or s 25(2). The determination of the learned senior member was correct. The appeal must be dismissed.

[1] (1817) 1 B & Ald 94 at 99, 106 ER 35 at 37.