Gosper -v- Pilbara Iron Company (Services) Pty Ltd [2021] WADC 47


When should you consider investigating a claim?

Mr Gosper was employed by Pilbara Iron Company (Services) Pty Ltd (PICS) and allegedly suffered an injury while so employed. PICS disputed the claim so it went to arbitration. The Arbitrator dismissed the claim. Mr Gosper, who was self-represented, appealed to Judge Lemonis of the District Court.

PICS employed Mr Gosper as a machine operator, but he also did some manual handling work.  He said that in the course of his work he suffered left shoulder injuries (and this was not in dispute). He gave notice of his claim on 5 July 2019 with a date of injury alleged of 6 June 2019.  His GP noted a 2 year history of shoulder problems in the first certificate of capacity. Mr Gosper accepted that 6 June 2019 was not the date he was injured, it was just the date pathology was first seen on an MRI scan.

At arbitration, the arbitrator found:

  • There was no dispute Mr Gosper had shoulder pathology.
  • In failing to lead evidence that might support findings as to when he first suffered that pathology Mr Gosper failed to prove it was more likely than not that he had suffered an injury caused by his work.
  • Consequently, no factual inquiry into the relationship between those injuries and his work could begin without knowing what evidence was to be assessed.
  • Such an inquiry required a starting point.  That starting point was the date of injury.

In light of this the arbitrator said it was not necessary to address the evidence of Mr Gosper’s duties whilst on site or the time he spent on site and he referred to s 178 of the Act which required, amongst other things, a person claiming compensation to state the date and place where the injury occurred.

The pivotal ground of the appeal was the argument that the arbitrator erred effectively by finding that Mr Gosper must first establish the date of his injuries. Lemonis J said s 178 did not say that a worker must prove the date an injury occurred so as to succeed with a claim. Furthermore, there was no absolute requirement that a worker must prove the date they suffered the injury in order to show the existence of an injury within the definition of s 5.  Once it was accepted that a worker had suffered an injury, how it was caused depended upon the circumstances. In some cases, the cause (and date) would be readily apparent; in others it would not. Where a cause was not readily apparent, as was the case for Mr Gosper, proof of the cause would likely depend on the overall circumstances. With a circumstantial case, matters relevant to determining how an injury occurred would include the nature of the work done by the worker, and the use made by the worker of the injured body part in their personal life. In other words a factual inquiry, the very need for which had been dismissed by the arbitrator.

Given the timeline, the case demonstrates the need for employers to make prompt and contemporaneous enquiries into injuries, whether to employees for workers’ compensation claims or to visitors or contractors under a public liability policy. Mr Gosper’s injury was reported in 2019 but he had had shoulder problems since 2017. The matter went to arbitration in 2020 and the appeal decision was handed down a year later – a problem 4 years in the making. In the writer’s experience, the availability and quality of evidence does not improve with time, unlike wine (and the writer perhaps).

Along with enquiries being prompt and contemporaneous, the following issues are also important, amongst others:

  1. The question of legal professional privilege, so any resulting report can remain confidential;
  2. Liaison with your insurers; and
  3. Considering an independent investigation (but see 1 above).

We can help with all of the above. For further advice please contact:

Stephen Williams – Partner – swilliams@kottgunn.com.au 

Vidal Hockless – Partner – vhockless@kottgunn.com.au 

Ash Crisp – Partner – acrisp@kottgunn.com.au 

Michael Morgan – Lawyer & Consultant – mmorgan@kottgunn.com.au 

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.