TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Workers' Compensation - Causal relation between injury and incapacity or death - Incapacity or death due to two causes - Dermatitis arising out of and in the course of employment and to which the employment contributed to a substantial degree - No immediate incapacity - Subsequent incapacity due to infection entering through affected skin - Whether incapacity "by reason of" the dermatitis - Whether dermatitis had been "suffered".

Workers Rehabilitation and Compensation Act 1998 (Tas), ss3(5) and 25(1)(b).

Doolan v Henry Hope & Sons, Ltd (1918) 11 BWCC 93, 87 LJKB 671; Laverick v William Gray & Co, Ltd (1919) 121 LT 289, 12 BWCC 176; Collinson v Manvers Main Collieries, Ltd (1937) 30 BWCC 280; Jones v Devonfield Enterprises [1996] TASSC 11; (1996) 5 Tas R 345, referred to.

Workers' Compensation - Proceedings to obtain compensation - Appeals and stated cases - Question of law - What constitutes appeal "in point of law" - Finding that incapacity not by reason of work related disease - Whether finding open.

Workers Rehabilitation and Compensation Act 1988 (Tas), s63(1).

Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1956] AC 14; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, applied.

Judgment Number: [2001] TASSC 66

2 Set aside order of primary judge dismissing the appeal to him.

4 Set aside the determination of the Tribunal and substitute therefor a determination that the appellant suffered the disease of dermatitis which arose out of and in the course of her employment and to which her employment contributed to a substantial degree.

5 Set aside the order of the Tribunal dismissing the appellant's application.

6 Remit the application to the Tribunal for assessment of the compensation payable by the respondent to the appellant.

1 The appellant worker claimed payments of workers compensation pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act") in respect of a condition described in the medical certificate supporting the claim as "hands - dermatitis 2d infection". In the certificate, the doctor described what had happened thus:

"Continued use of Hexol has caused dermatitis which has broken down the skin barrier causing secondary infection leading to total incapacity and hospitalisation."

2 The findings of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") were set out in its reasons, which included the following:

"The facts as outlined by the worker were not really in dispute, although there was some uncertainty as to the extent of the dermatitis suffered during the relevant period. Based on the evidence given I find that the worker was employed as a nurse in an acute hospital setting. Consequently she was obliged in the course of her work duties, to, on numerous occasions on each day, use chemical hand cleaning products identified as Hepiclean and Hexol. She alleges that these solutions would on regular occasions cause outbreaks of dermatitis on her hands. Such outbreaks would resolve after a period of time away from contact with those products or similar chemical cleaning agents away from her work environment. After her last day at work before her illness, being 18 January 1999, the worker noted an area of broken skin on the fore finger of her right hand which she identified as an outbreak of dermatitis similar to previous outbreaks. This area did not resolve and the worker was still aware of the existence of an area of cracked skin on 28 January 1999. There was no suggestion that this area of cracked skin had got any worse or that it was productive of any symptoms such as pain or limitation of movement in the finger. There was no evidence that the worker was in any way incapacitated by reason of this area of broken skin on her finger. The worker on 28 January 1999 noted an area of white skin at the location of the cracked skin and believing this to be indicative of infection she attended a medical practitioner. This doctor attempted to remove this area of white skin with a scalpel but desisted when the worker complained of pain, this being the first occasion when pain was associated with the condition. During the remainder of that day the pain in the finger increased, swelling became apparent and in retrospect other signs indicative of developing septicaemia were observed. The worker was admitted to hospital that night and subsequently underwent treatment including surgery for a serious infection later identified as being from the organism Streptococcus Pyogenes.

The worker was thereafter incapacitated for a period of time, incurred medical expenses and apparently has been left with a residual disability affecting the fore finger, being the site of the dermatitis.

If one analyses the evidence it establishes that the worker had an outbreak of dermatitis at work on 18 January and that this condition, given that the only identified cause was the use of hand cleaning solutions at work, arose out of and in the course of her employment. If the condition was a disease I am also satisfied that her work contributed to a substantial degree. However the worker was not incapacitated by that condition. The infection by the organism Streptococcus Pyogenes, entered her body via the area of broken skin caused by the dermatitis but there is no evidence that this invasion occurred in the course of her employment. It was the infection initiated by this organism that caused the incapacitating condition being the extensive local infection to her hand and developing septicaemia."

The Tribunal concluded that the worker had suffered two diseases, the first being dermatitis and the second pyodermia, which is a localised purulent streptococcal infection of the skin caused by the organism streptococcal pyogenes. The Tribunal found that because the disease of dermatitis did not incapacitate the worker, she could not be said to have suffered that disease having regard to the Act, s3(5) and that what this disease provided was an area of broken skin via which the organism streptococcal pyogenes entered and caused an infection. The Tribunal's final conclusion was that the latter disease, streptococcal pyodermia, was the only disease suffered within the terms of the Act and that this disease could have been acquired at any time and place, with the evidence not sufficient to establish that it arose out of and in the course of her employment. Her claim was accordingly dismissed, as was her appeal, the learned primary judge taking the view that no fault could be found with the Tribunal's reasoning. In his view:

"The evidence showed quite clearly that streptococcal pyodermia was not a natural progression or development of dermatitis. It was the natural development or consequence of the opportunistic entry into the damaged surface of the skin of the organism streptococcus pyogenes."

3 There are numerous cases where, before injury which is a disease became compensable in accordance with the Act and was confined to physical injury by accident, medical complications after the sustaining of a traumatic injury have been accepted as compensable. In Laverick v William Gray & Co, Ltd (1919) 121 LT 289, 12 BWCC 176 the English Court of Appeal upheld an award of compensation to a workman whose finger was crushed by accident in the course of his employment. After three weeks of favourable progress, symptoms of blood poisoning appeared and a fortnight later the finger had to be amputated. The worker had contracted syphilis after the initial injury and before the operation. Swinfen Eady MR adopted as an appropriate test for liability the question posed by Bankes LJ in Doolan v Henry Hope & Sons, Ltd (1918) 11 BWCC 93, 87 LJKB 671:

"Is the workman's condition of which he is complaining in fact due to the original injury, whatever it may be, aggravated by infection or disease, or, Is his condition in fact due to infection or disease quite independent of the original injury?"

In Collinson v Manvers Main Collieries, Ltd (1937) 30 BWCC 280, a collier, after an absence from work, suffered blisters on his hands. One was broken by an ambulance attendant, who sent him to his doctor, who found sepsis under the blister. At 286 Romer LJ said:

"If the blister formed at the time when the workman says it formed, namely, while he was doing this particular work on the night shift between February 18 and 19, it is plain that he is entitled to compensation, because the chain of causation between the formation of the blister and his subsequent incapacity owing to the sepsis appears to be complete; indeed, Mr Beney did not suggest that it was not complete. It is true that no one knows exactly at what point of time there entered into the workman's system the particular bacillus which caused the sepsis, and that the workman could not show that it entered at any time while he was employed by the respondents. If, however, the blister itself was an accident inasmuch as, but for the blister, the bacillus would plainly never have got into the man's hand at all, it is immaterial whether the bacillus made its entry during the employment or after the workman had temporarily left it."

Burnett v Wairoa Co-operative Meat Co Ltd [1921] NZLR 981 is another instance of a traumatic injury complicated by subsequent infection. There the court said, at 985:

"We are of the opinion that in the present case the sudden and rapid development of the disease of the eye, and the dirty and greasy state of the plaintiff's cap, point to the infection having been introduced at the time the abrasion was caused, but we do not think that it is necessary for us to decide this point. The cases cited are authority for the proposition that so long as there is not novus actus interveniens the plaintiff's right to compensation is not affected whether the infection was introduced by the substance causing the abrasion or entered later. There is no suggestion in the present case of novus actus interveniens, and the chain of causation is not broken in any way. The injury complained of was directly due to the original abrasion, aggravated by infection introduced by natural causes then or later."

In Connors v Collard 90/1966, Crisp J awarded compensation to a worker who had suffered a work caused blister through which a staphylococcal infection entered. At 3 he said:

"I am completely clear that the infection which did enter, whenever it entered, was not a novus actus interveniens so as to break the chain of causation and to prevent the plaintiff from recovering.

... If the blister was an accident within the meaning of the Act, and I hold that it was because it was a traumatic injury which occurred during and in the course of the employment, then the fact that it was subsequently complicated by an invading infection does not prevent it with its subsequent complication from being a compensatable injury."

"Insomuch as it is based on an application of the facts, I say that in my view it is a question of causation and that the direct causal connection between the blister and the subsequent incapacity would not be interrupted by any consideration arising out of the consequence that the infection in the sense of the invading staphylococcus might conceivably have entered at some time when the workman was not working."

In Martin v Moore (1945) 39 BWCC Supp 12, the Supreme Court of Eire held that an infection caused to a domestic servant who pricked her finger with a knitting needle whilst engaged in knitting in the course of her employment was an accident arising out of and in the course of the employment. At 16, Sullivan CJ said:

"Where the incapacity in respect of which compensation is claimed results from infection caused by the entry of micro-organisms through an abrasion an applicant is entitled to compensation if he establishes either that such entry occurred in the course of his employment, or that the abrasion through which such entry was effected was received in the course of his employment."

4 In the light of these cases, I have no doubt that had the appellant sustained an injury to her hand in circumstances giving rise to a claim for compensation under the Act, s25(1)(a), namely that she had suffered an injury, not being a disease (such as an abrasion), arising out of and in the course of her employment, the incapacity due to the later invasion of streptococcal pyogenes would be compensable. That is because the incapacity results from an injury which arose out of and in the course of the worker's employment. Whether or not the incapacitating condition falls within the definition of disease set out in the Act, s3, namely "any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development", it is the initial injury which gives rise to the employer's liability, a liability which has s25(1)(a) as its foundation, not s25(1)(b) (see FAI General Insurance Co v Morrison & Ors [1993] TASSC 115; (1993) 2 Tas R 9, per Crawford J at 19). In my view, the position is no different in respect of an incapacitating condition which results from an injury falling within s25(1)(b), that is, one which is a disease having the characteristics set out in that paragraph.

5 Section 3(5) relevantly provides:

(5) For the purposes of this Act, where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred

(a) on the day on which the worker became totally or partially incapacitated by reason of that injury;"

The deeming provision is the means of determining at what point in time the employer's liability attaches in respect of an injury that is a disease. In the circumstances of this case, if the evidence warrants the conclusion that the worker's dermatitis arose out of and in the course of her employment and that her employment contributed to it to a substantial degree, and further, that the infection resulted from the entry into her system of the streptococcal organism, then she became incapacitated by reason of the disease dermatitis. For the purposes of the Act generally, and specifically for the purposes of determining when the employer's liability arose, the statutory fiction operates so as to establish the day on which she became thus incapacitated as the day upon which the injury occurred. It is not necessarily the morbid condition which exists on that day which constitutes the injury, although in the case of diseases which progress naturally to an incapacitating state, that can be the case, and they can still be said to arise out of and in the course of the worker's employment, notwithstanding that the incapacity occurs after the termination of employment (Sherriff v Community Pride Inc [1999] TASSC 47; (1999) 8 Tas R 351).

6 In the present case, the injury which arose out of and in the course of the appellant's employment and to which that employment contributed to a substantial degree was her dermatitis and it was by reason of that injury that she became incapacitated, notwithstanding that the immediate cause of her incapacity was pyodermia contracted as a consequence of her suffering from dermatitis. In effect, the Tribunal misdirected itself by treating the pyodermia as totally distinct from and unrelated to the dermatitis and hence a novus actus interveniens. In my view, having regard to the uncontested evidence before it, the only conclusion properly open to the Tribunal was that the dermatitis was the injury by reason of which the worker was incapacitated and that, as it had the characteristics set out in s25(1)(b), the employer's liability to pay compensation accrued on the day she was incapacitated by reason of it. For the reasons given by Crawford J, which I have had the advantage of reading, I agree that the Tribunal's error amounted to an error in point of law. I would uphold the appeal and remit the matter to the Tribunal to assess the amount of compensation payable to the appellant.

7 The appellant claimed compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act") from her employer. The Workers Rehabilitation and Compensation Tribunal ("the Tribunal") dismissed her claim because it was not satisfied that she suffered an injury in the circumstances required by s25(1). She appealed unsuccessfully to a judge and appealed again to this Court.

8 The primary facts are not in contention. The appellant was a nurse in an acute hospital setting. She was obliged, in the course of her employment duties, on numerous occasions each day, to use certain chemical hand cleaning products. On regular occasions those products caused outbreaks of dermatitis on her hands. To state it simply, she was allergic to the products. Such outbreaks of dermatitis had always resolved after periods of time away from her work environment and contact with the products. They had not incapacitated her.

9 On 18 January 1999, she noted the presence of dermatitis once again, this time on her right forefinger. It did not then incapacitate her from working, but she did not return to work because the following day she commenced a holiday break. By 28 January, the area of dermatitis had not resolved and on that day there developed very quickly an infection which commenced at the site of the dermatitis. Prior to the onset of that infection, she had suffered no pain or limitation of movement in the finger and had not been incapacitated in any way by reason of the area of broken skin which had resulted from the dermatitis. With the onset of the infection, however, pain developed in her finger and increased. Swelling quickly became apparent and other signs indicative of developing septicaemia were observed. That night she was admitted to hospital and subsequently underwent treatment, including surgery, for what proved to be a serious infection, later identified as being caused by an organism streptococcus pyogenes. Thereafter, she was incapacitated. She incurred medical expenses and it seems that there is a residual disability in the finger.

10 Medical evidence was that the appellant had suffered a specific, chronic and recognised syndrome of skin damage and dermatitis secondary to the cleaning products. That is common in workers in the health industry. The damage to the skin lowered her resistance to the invasion of the streptococcus pyogenes. The Tribunal found that the outbreak of the dermatitis arose out of and in the course of her employment and that her employment contributed to that outbreak to a substantial degree. It found that the infection caused by the organism streptococcus pyogenes, entered her body via the area of broken skin which had been caused by the dermatitis. The evidence did not establish that this invasion by the organism occurred or arose out of the course of her employment. The organism is prevalent in the normal environment. For example, it may be found in the throats of 15 to 20 per cent of people. It could have been acquired by the appellant and the infection could have been sustained, at any time, and there was no way to establish any link between the acquisition of the organism and her employment duties. The organism gave rise to an extensive local infection in her hand and septicaemia developed and as a consequence of that she became incapacitated.

11 The Tribunal found that the disease of dermatitis did not itself incapacitate the appellant. What it did was provide an area of broken skin via which the organism entered and caused the infection, one known as streptococcal pyodermia, which spread from the superficial tissues of the skin to the pulp space and consequently to the deep tissues of the hand and wrist. The pyodermia, which amounted to a disease, was a localised purulent streptococcal infection of the skin caused by the streptococcus pyogenes. The learned Commissioner said that it was that disease that resulted in the incapacity and that it "was the only disease suffered by the worker within the terms of the Act, and this disease could have been acquired at anytime and place, with the evidence not sufficient to establish that it arose out of and in the course of the employment".

12 Because of the finding that the dermatitis did not incapacitate the appellant, the Tribunal held that it could not, as a matter of law, be said to have been suffered by her, because of the effect of s3(5)(a):

"(5) For the purposes of this Act, where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred

(a) on the day on which the worker became totally or partially incapacitated by reason of that injury."

The view that because of s3(5), if a disease has not incapacitated a worker, it cannot be said to have been "suffered" for the purposes of the Act, accords with Pasminco Metals - EZ v Kaitinis (1993) 2 Tas R 387.

13 Having regard to the learned Commissioner's findings that the dermatitis had arisen out of and in the course of the appellant's employment and that the employment had contributed to it to a substantial degree, the remaining question was whether, when she became incapacitated on or about 28 January 1999, she had become so "incapacitated by reason of that injury" (s3(5)(a)), that is to say, by reason of the dermatitis. The learned Commissioner determined that question against the appellant without expressing reasons for doing so. Instead he concentrated on the disease that was the immediate cause of the incapacity, the streptococcal pyodermia, and held that the evidence failed to establish that the entry of the streptococcus pyogenes into the finger arose out of and in the course of the employment. It appears that the learned Commissioner assumed that it was not open to him to find that the incapacity was caused by both diseases and that it was necessary for him to choose one as the cause over the other.

14 The learned judge below gave as one of his reasons for agreeing with the learned Commissioner that the streptococcal pyodermia was not a natural (usual?) progression or development of dermatitis, but a consequence of the "opportunistic entry" into the surface of the skin following it having been damaged by the dermatitis.

15 With respect, neither the learned Commissioner nor the learned judge adequately addressed the issue of causation and whether the appellant's incapacity had come about "by reason of" the dermatitis. There was a considerable body of authority from many jurisdictions that supported the appellant's case.

16 Much of the litigation in the past in which the issue of causation was considered, concerned the question of whether it could be said under various statutes that a death, disability or incapacity "resulted from" a particular physical injury or disease. Those words of causation, although not used in s3(5), are used elsewhere in the Act. Under s67(1), the question is whether the death is "a result of an injury" in respect of which the employer is liable to pay compensation. Under s69(1), the question is whether the "total or partial incapacity for work results from an injury" in respect of which the employer is so liable. I do not understand that the legislature intended something different in s3(5), when it required that the worker be "incapacitated by reason of that injury". It would be surprising if a different test of causation was intended than that applying elsewhere in the Act. I therefore conclude that the requirement in the subsection that the incapacity come about "by reason of that injury" has the same meaning as the expression "results from the injury".

17 In Dunham v Clare [1902] 2 KB 292, a worker wounded his toe at work. Some time after, an organism entered the wound and that in turn led to the worker dying because of blood poisoning caused by erysipelas (a form of acute streptococcal cellulitis) in the wound. The medical evidence was to the effect that the erysipelas was a very unusual consequence of a wound of that kind. According to the report of the case, the county court judge at first instance refused compensation to the widow "upon the ground that the death was not the result of the injury, ie, that it was not the natural or probable consequence thereof". On the first appeal in the present case, the learned judge used a similar expression when he emphasised that the "streptococcal pyodermia was not a natural progression or development of dermatitis". In what has been regarded as one of the classic expressions on the subject, Collins MR disapproved of that approach at 295 - 296:

"In the present case there was admittedly an accident causing injury, and the only question is whether death in fact resulted from the injury. If death in fact resulted from the injury, it is not relevant to say that death was not the natural or probable consequence thereof. The question whether death resulted from the injury resolves itself into an inquiry into the chain of causation. If the chain of causation is broken by a novus actus interveniens, so that the old cause goes and a new one is substituted for it, that is a new act which gives a fresh origin to the after-consequences. ... The only question to be considered is, Did the death or incapacity in fact result from the injury? The county court judge, by inquiring whether death was the natural or probable consequence of the injury, has applied the wrong standard to the solution of the question. It is quite consistent to say that death resulted from the injury and yet that it was neither the natural nor the probable consequence of it. If no new cause, no novus actus_¸_ intervenes, death has in fact resulted from the injury."

18 Like Milton Boulter in his Workers' Compensation Practice in New South Wales (1966) at 139, I have italicised certain words in that passage to lay stress on the dual aspect that is involved. Unless the old cause has gone, there will commonly be two causes acting together.

19 The Court of Appeal stated the law in the following way in Brown v George Kent Ltd [1913] 3 KB 624 at 627:

"The question which the county court judge had to consider and determine was whether the admitted incapacity in fact resulted from the injury. If so, the workman was entitled to recover although the incapacity may not have been the natural or probable consequence of the injury, and even although the fever contracted in the hospital aggravated the condition of the wound, and contributed to its unhealthy condition and to the resulting incapacity.

20 Bankes LJ expressed the question in Doolan v Henry Hope & Sons Ltd (1918) 11 BWCC 93, 87 LJKB 671 as follows:

"The question is, Is the workman's condition of which he is complaining in fact due to the original injury, whatever it may be, aggravated by infection or disease, or, Is his condition in fact due to infection or disease quite independent of the original injury?"

See also Laverick v William Gray & Co Ltd (1919) 121 LT 289, 12 BWCC 176.

21 Collinson v Manvers Main Collieries Ltd (1937) 30 BWCC 280 and Martin v Moore [1946] IR 1, were both cases of an employee suffering a minor injury at work (respectively a blister on the hand and a finger pricked by a knitting-needle). The sites of the wounds became infected. In both cases it was held that it did not matter whether the micro-organisms which entered the wounds and caused sepsis resulting in incapacity, so entered the wounds in the course of the employment or independently of it. It was sufficient for an entitlement to compensation that the initial wound arose in the course of the employment. See also Burnett v Wairoa Co-operative Meat Co Ltd [1921] NZLR 981 at 985.

22 In this State, a similar question arose under the Workers' Compensation Act 1927 in the unreported case of Connors v Collard 90/1966, in which the worker suffered blisters to his hand as a result of his work as a navvy. One of the blisters became infected, the condition being a fulminating staphylococcal infection of the palmar space of the fourth finger of the right hand. It was found that the portal of entry of the infection was the blister. Crisp J held at 3 that it was "completely clear that the infection which did enter, whenever it entered, was not a novus actus interveniens so as to break the chain of causation and to prevent the plaintiff from recovering". His Honour continued:

"The argument addressed to me to the effect that in the absence of proof that the invading bacillus or germ actually invaded in the course of the employment is not I think sustainable on the authorities. If the blister was an accident within the meaning of the Act, and I hold that it was because it was a traumatic injury which occurred during and in the course of the employment, then the fact that it was subsequently complicated by an invading infection does not prevent it with its subsequent complication from being a compensatable injury."

His Honour relied on a number of authorities, including Collinson v Manvers Main Collieries Ltd and Martin v Moore.

23 There is no doubt in this case that but for the suffering of the dermatitis, the appellant would not have suffered from the streptococcal pyodermia which, in turn, brought about her incapacity. Further, it is plain that "as a matter of ordinary common sense and experience" the dermatitis was a cause of the incapacity. (March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 522. See also Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 - 464 and Jones v Devonfield Enterprises [1996] TASSC 11; (1996) 5 Tas R 345 at 349.)

24 Counsel for the respondent submitted that the finding of the learned Commissioner that the appellant's incapacity did not occur by reason of the dermatitis, but by reason only of the streptococcus pyogenes, was a determination of a question of fact and was open on the evidence. Under the Act, s63(1), a party to a proceeding before the Tribunal may only appeal to the Supreme Court if aggrieved by any determination, order, ruling or direction of the Tribunal in point of law. Counsel submitted that if the ultimate finding of the learned Commissioner was erroneous, there was not an error in point of law but merely an error in the course of the fact finding exercise, which was not liable to appeal under s63(1).

25 In my opinion, there was an error in point of law on the part of the learned Commissioner. He did not properly address the critical question whether the appellant was "incapacitated by reason of" the dermatitis. Instead he allowed himself to be distracted by the disease which next occurred and which was the immediate cause of the incapacity. He failed to consider whether the dermatitis may have been a cause, notwithstanding that the streptococcal pyodermia was also a cause. Further, upon a consideration of the primary facts as found by the learned Commissioner, "the true and only reasonable conclusion contradicts the determination" of the Commissioner that the appellant was not incapacitated by reason of the dermatitis. See Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1956] AC 14 at 36. "Where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only". Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7. See also Vetter v Lake Macquarie City Council (2001) 178 ALR 1 at 8 - 9. In my respectful opinion, the finding of the learned Commissioner that the appellant was not incapacitated "by reason of" the dermatitis was not one which was reasonably open upon a proper consideration of the undisputed primary facts.

26 For these reasons, I would allow the appeal, set aside the order of the learned judge which dismissed the appeal to him and allow that appeal, set aside the determination of the Tribunal that the appellant's disease was not one arising out of and in the course of her employment and replace it with a determination that the appellant suffered the disease of dermatitis which arose out of and in the course of her employment, set aside the order of the Tribunal dismissing the appellant's application, and remit the application to the Tribunal for assessment of the compensation payable by the respondent to the appellant.

27 I agree with the reasons for judgment of both Cox CJ and Crawford J. There is a little that I would like to add in relation to the Workers Rehabilitation and Compensation Act 1988, s69(1). By virtue of that subsection, one of the prerequisites for weekly payments of compensation to be payable is that "total or partial incapacity for work results from an injury suffered by a worker". When a worker is incapacitated for work by a disease, s69(1) operates in parallel with s3(5), which deems "an injury that is a disease" to have occurred "on the day on which the worker became totally or partially incapacitated by reason of that injury". It follows from s3(5) that the appellant's dermatitis was not a disease "suffered" for the purposes of the Act unless and until she was totally or partially incapacitated "by reason of " that dermatitis: Pasminco Metals - EZ v Kaitinis (1993) 2 Tas R 387. Under s69(1) she did not become entitled to weekly payments of compensation unless and until total or partial incapacity for work "resulted from" her dermatitis. I agree with Crawford J that an incapacity by reason of a disease for the purposes of s3(5) is the same thing as an incapacity that results from a disease for the purposes of s69(1). Given the primary findings of fact made by the Tribunal, the only conclusion open to it was that the incapacity caused by the appellant's infection came about by reason of her dermatitis, and resulted from her dermatitis.

28 I would uphold the appeal and remit the matter to the Tribunal to assess the amount of compensation payable to the appellant.