Judicial Review
outcome
Ergon Energy Corporation Limited v Rice-McDonald & Ors
[2009] QSC 213
Mr Graham Bathe lodged an application for compensation for lung
cancer alleged to have been contracted during his employment with
Ergon Energy Corporation Limited (Applicant). Mr Bathe alleged that
the injury was sustained due to exposure to carbon tetrachloride
and cigarette smoke in the workplace over a period of time between
1973 - 2008.
Mr Bathe's claim was rejected by the Applicant and he subsequently
sought review of the decision. At review, Q-COMP sent the matter to
the General Medical Assessment Tribunal - Thoracic (Tribunal) to
decide 'injury'.
The tribunal found that Mr Bathe's employment was a significant
contributing factor to his injury and that he had sustained an
'injury' within the meaning of the Workers' Compensation and
Rehabilitation Act 2003 (Qld).
Whilst the tribunal noted the opinions of both the treating
oncologist Dr Mainwaring and occupational physician Dr Goode, the
tribunal favoured the opinions of Dr Mainwaring. Specifically, the
tribunal disagreed with Dr Goodes' arguments relating to the
importance of relative risks.
The Applicant sought review of the decision of the Tribunal by way
of Judicial Review in the Supreme Court. Their principle argument
was that the tribunal failed to provide adequate reasons. The
Applicant also argued that the tribunal's decision was unreasonable
in the Wednesbury sense.
The issue at the hearing was whether the tribunal sufficiently
explained in their reasons for decision, the means by which it
reached the conclusion and in a way that demonstrated that it had
discharged its statutory function to determine the issue in
question. The Applicant did not argue that the evidence or other
material was not set out, rather, the complaint was that the
tribunal simply gave its conclusion without explaining the path by
which that was reached.
Outcome
McMurdo J stated that the tribunal's reasons were less extensive
than those of a reasons for judgement. His Honour stated that the
tribunal's process of reasoning was clear and was made in
accordance with the evidence. The reasons although brief were
sufficient. His Honour further stated that having regard to the
evidence and the clear terms of the respective medical opinions, it
was difficult to see that significantly longer reasons would have
been appropriate. On the ground that the tribunal's decision was
'unreasonable', the Court did not accept the argument that no
reasonable decision maker in the position of the tribunal could
have reached its conclusion. This was on the basis that there was
evidence, namely the evidence of Dr Mainwaring before the tribunal
to support the conclusion. The Application was dismissed.
Claim under the
WorkCover Queensland Act 1996
Q-COMP v Gordon Robinson [2007] QIC 43
On 11 May 2006 Mr Robinson lodged a compensation claim under the
WorkCover Queensland Act 1996 (the 1996 Act) for an injury
described as 'solar induced skin disease' said to have been caused
by work-related unprotected sun exposure during the 1960s.
WorkCover Queensland (WorkCover) rejected Mr Robinson's claim on
the basis that it was lodged outside the time frame in the
Workers' Compensation Act 1916 (the 1916 Act).
Relying on the decision of Martindale v Burrows [1916]
QCS 113, Q-COMP considered that WorkCover's decision was not
reviewable as the injury was deemed to have been suffered at the
time of exposure (ie, the 1960s) rather than at the time of the
emergence of the disease. Rights to review accrued only from the
enactment of the WorkCover Queensland Act 1996 (the 1996
Act).
The matter was ultimately determined by the Queensland Industrial
Court.
Decision
President Hall commented that the Application for Compensation
should have been made pursuant to the Workers' Compensation and
Rehabilitation Act 2003 (the 2003 Act). However, the reference
by WorkCover and Q-COMP to the 1916 Act was required by s.603 of
the 2003 Act. That section provides that where a worker sustains an
injury before the commencement of s.603, a former Act in force when
the 'injury' was sustained applies to the injury.
President Hall also commented that, while the arguments assumed
that there was no right to review if the injury had occurred before
the commencement of the 1996 Act, 'it may well be that on a future
occasion, another appellant will seek to argue that where WorkCover
applies the [1916 Act] because the [2003 Act] requires WorkCover to
do so, WorkCover takes a decision under the latter Act.'
Potential implications
Potential implications of this decision include:
- Irrespective of when an 'injury' is 'sustained', an Application
for Compensation lodged on or after 1 July 2003 is made under the
2003 Act.
- Where an insurer is required by s.603 of the 2003 Act to apply
an earlier Act, the insurer still makes its decision under the 2003
Act. As a result, Q-COMP can review that decision if it falls
within s.540 of the 2003 Act.
