Case summary: Huon Aquaculture Pty Ltd v KM [2025] TASCAT 73
15th May 2025
Case summary: Huon Aquaculture Pty Ltd v KM [2025] TASCAT 73
L D Jack, Senior Member, decision delivered 17 April 2025
Facts
The worker (KM) has made a claim for compensation. Under s81A of the Workers Rehabilitation and Compensation Act 1988 (Tas) (WRC Act), the employer has disputed liability to pay compensation. As such, a hearing pursuant to s81A of the WRC Act must take place.
The worker attended on a consultant occupational physician and environmental physician, Dr Dale, to be assessed for the purposes of an independent medical examination. Dr Dale did not inform the client that this assessment would be of both her knee injury (the subject of a separate workplace injury), and her back injury (the subject of the current application).
It appears that in organising the examination with Dr Dale, the insurer also inadvertently failed to provide information to the worker that this examination would examine both her lower back injury and knee injury.
As such, the worker attended the appointment with Dr Dale on the basis that she was to have her knee injury assessed.
The worker alleges she did not give informed consent to have her back injury assessed by Dr Dale and as such submits that his report should not be accepted as evidence in the s81A hearing by the employer.
The insurer submits that, regardless of their inadvertent error, the worker should have been on notice that Dr Dale intended to assess her back injury on the basis that he took a history from her with respect to her back injury.
Decision
- The report of Dr Dale is not accepted into evidence.
- There is no reasonably arguable case pursuant to section 81A of the WRC Act.
- The employer is to make weekly payments and pay the cost of benefits under the WRC Act.
Ratio
Senior Member L D Jack found that it would be unfair for the employer to be permitted to rely upon the report in instances where the worker has not given informed consent for the physical examination to take place.
Senior Member Jack goes on to say:
‘One reason that medical practitioners are required to obtain informed consent from their patients is because those patients entrust themselves to medical practitioners for physical examinations involving physical contact that would otherwise not be acceptable’ (at [23]).
Senior Member Jack’s second reason for not allowing the report to be accepted is that on the facts, it appears that Dr Dale’s physical examination was performed ‘in the absence of the worker’s informed consent’ (at [12]). He says that it follows that any conclusions made by Dr Dale in the report are, at least in part, based on information that was improperly obtained.
The insurer conceded that without the evidence of Dr Dale’s report, there was no ‘reasonably arguable case’(at [5]) pursuant to s81A of the WRC Act and as such, Senior Member Jack made a finding that the employer is to make payments of weekly benefits to the worker.
The ALA thanks Isabella Blunt for this contribution.
This is an edited version of an article first published by Travis Schultz & Partners.
The views and opinions expressed in this article are the authors and do not necessarily represent the views and opinions of the Australian Lawyers Alliance.
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