By Gaby Grammeno Contributor
The case concerned a paramedic employed by Ambulance Tasmania, a service provided by the State’s Health Department.
In August 2021 he made a workers compensation claim for a condition he described as a stress disorder. He said it was triggered by his employer’s ongoing investigation into an alleged breach of its code of conduct.
The employer (the State) disputed his claim, and the Workers Rehabilitation and Compensation Tribunal (WRCT) held that a reasonably arguable case existed concerning the State's liability, and made an interim order for compensation not to be payable.
The worker referred his claim to the WRCT, and the matter was pending before the Tasmanian Civil and Administrative Tribunal (TASCAT) when the Supreme Court made its decision. The employer conceded that the worker’s employment contributed to his condition to a substantial degree.
This gave rise to a dispute about which party bore the onus of proof as to whether the condition was substantially due to reasonable management action. A senior member of TASCAT determined, as a preliminary point, that the onus of proof rested on the employer.
The employer appealed against this determination, and the case was heard before the Supreme Court of Tasmania.
In the Supreme Court
The employer relied on s 49(2) of the Act, which provides that the onus of proving an initial entitlement to compensation lies on the worker, and the onus of proving that a worker is no longer entitled to the payment of compensation lies on the employer.
The employer contended that the worker wasn’t entitled to compensation because of the provisions of s 25(1A) of Tasmania’s Workers Rehabilitation and Compensation Act 1988, which provides that compensation is not payable if a worker’s psychological condition arises substantially from reasonable management action taken in a reasonable manner.
The employer’s position was that it was the worker who had to prove that that s 25(1A) did not apply in any way – in effect, that his condition did not arise from reasonable management action.
Who bears the burden of proof?
Chief Justice Alan Blow decided that s 49(2) should not be interpreted as requiring a worker to disprove the applicability of the exceptions created by s 25(1A) in relation to an employer's liability to pay compensation.
‘A common law rule places the onus of proof in relation to those exceptions on the employer,’ he said.
In considering the correct interpretation of s 49(2), Chief Justice Blow reviewed the principles applying to questions concerning the burden of proof and the intent of the legislation before the insertion of s 49(2) into the Act in 1995, as well as the findings in relevant previous High Court cases.
He also cited the notes provided to Members of Parliament when the 1995 amendments were introduced, which observed that the insertion of s 49(2) in the legislation made no change to the previous allocation of responsibilities, namely, that the worker had to prove the initial entitlement and the employer had to prove that the worker was not entitled to compensation.
‘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,’ he said.
The court upheld the original decision that it’s the employer who bears the burden of proving that a given compensation claim for a mental health disorder cannot succeed because the disorder arose from reasonable management action taken in a reasonable manner.
The appeal was therefore dismissed.
What it means for employers
Employers should take note that it will be up to them, if they think a worker’s stress claim resulted from reasonable management action, to prove in court that the worker is not entitled to compensation.
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