Ergon Energy Corporation Limited v. Rice-McDonald & Ors

The applicant employer, Ergon Energy, appealed against the decision of the respondents to grant Mr Bathe, its employee, workers compensation for lung cancer caused by passive smoking in the workplace. The applicant appealed on various administrative law grounds, including that the Tribunal below had failed to provide sufficient reasons for its decision and that the Tribunal's decision was so unreasonable that no reasonable decision-maker could have come to it (ie. Wednesbury unreasonableness).

The Supreme Court dismissed the applicant's appeal, upholding the Tribunal's decision that Mr Bathe had suffered an injury in the relevant sense under the statute and that the injury was lung cancer caused by exposure to second-hand smoke in the workplace.

Ergon Energy Corporation Limited v. Rice-McDonald & Ors [2009] QSC 213 (5 August 2009)

  • Australia
  • Aug 5, 2009
  • Supreme Court at Brisbane
Download Document

Parties

Plaintiff Ergon Energy Corporation Limited

Defendant

  • Dr Glenn Rice-McDonald
  • Dr John Armstrong
  • Dr William Oliver
  • Graham Anders Bathe
  • Q-Comp

Legislation Cited

Acts Interpretation Act 1954 (Qld)

WorkCover Queensland Act 1996 (Qld)

Workers' Compensation and Rehabilitation Act 2003 (Qld)

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

None

Type of Tobacco Product

None

"The Tribunal considers that Mr Bathe definitely had significant passive cigarette smoke exposure. Passive cigarette smoke exposure is an accepted risk for developing lung cancer. The Tribunal notes Mr Bathe himself has never been an active smoker. The Tribunal also notes a possible genetic predisposition to development of lung cancer when exposed to potential carcinogens by virtue of Mr Bathe’s father having lung cancer. The Tribunal also notes exposure to other potential carcinogens in the workplace including carbon tetrachloride, Turco-white solv and transformer oil. The Tribunal cannot discount the possibility of inadvertent ingestion of these materials (carbon tetrachloride, Turco-white solv and transformer oil) during the course of Mr Bathe’s employment and hence some co-contribution from those potential carcinogens in addition to the known carcinogens in cigarette smoke. The Tribunal considers the major carcinogenic exposure was exposure to cigarette smoke in the work environment and considers there may have been other less important carcinogenic exposures to the other substances as described above. The Tribunal notes the possibility that all of the above exposures may have taken on a greater degree of significance by virtue of a possible genetic predisposition to developing lung cancer by virtue of Graham’s father having developed lung cancer. Taking into account the workplace exposures as a whole, the Tribunal is of the opinion that the criteria set out in all of the relevant Acts have been met with regard to injury."