Considering the ‘Three Pathways to Liability’

In this edition, we summarise a recent decision from the Tasmania Civil and Administrative Tribunal, where Page Seager acted for one of the successful parties.

The key issue in this case was whether the worker had suffered one of the three types of compensable injuries. Workers compensation lawyers often refer to these classifications of an injury as ‘the three different pathways to liability’.

The three types of injuries that will allow a worker to be entitled to a valid workers compensation claim are as follows:

1. A ‘primary’ injury (being a sudden physiological change) which arose out of or in the cause of employment.
2. A disease (being an injury that develops) of which employment was the major or most significant contributing factor.
3. An aggravation/exacerbation/acceleration/recurrence/deterioration of a pre-existing disease, to which employment was the major or most significant contributing factor.

The onus is on the worker to prove they have suffered at least one of these three classes of injuries.

TCN v Hays Specialist Recruitment (Australia) Pty Ltd (No 2) [2025] TASCAT 213

Facts

• The worker was employed by Hays Specialist Recruitment (Hays) and contracted to work for Security Services Tasmania (SST). Their duties included performing manual trench‑digging and cabling work. Page Seager acted for SST.
• In May 2021, the worker made a workers compensation claim for a L5/S1 disc prolapse injury with S1 nerve impingement. The worker alleges their injury was caused by scraping sand in a trench during the course of their employment.
• Hays and SST denied liability for the claim, on the basis that there was no clear work‑related incident, the worker having a longstanding history of back issues, and that the prolapse was primarily degenerative.
• The worker therefore filed a s42 referral with the Tribunal seeking an order that they be entitled to workers compensation in respect of the injury.

Issue

All parties agreed that the worker had suffered an L5/S1 disc prolapse. The question was whether the prolapse either:

• arose out of or in the course of employment (e.g. that the prolapse happened at work or while performing work duties); or
• was substantially caused by employment.

The worker contended that he had suffered a primary injury at work, but in the alternative contended he had suffered an aggravation of an underlying disease substantially caused by work.

Part of the worker’s case relied on there being no evidence of any event outside work that could be said to have precipitated the disc prolapse.

Hays and SST submitted that the prolapse was instead an injury which is a disease, but that employment was not the substantial cause of the disease. SST and Hays contended that the facts establish that the condition was one that developed without any precipitating incident or any sudden and ascertainable physiological change, and that on that basis it should be considered an injury which is a disease.

Decision

The Tribunal found the worker did suffer an acute disc prolapse (i.e a ‘primary’ injury), but they failed to prove it was caused by their employment.

The Tribunal also found that if it was wrong about the characterisation of the injury and it was in fact an aggravation of a pre-existing disease, then in any event that aggravation was not caused by employment.

The key reasons that influenced the Tribunal’s decision included:

• Vague and inconsistent accounts by the worker of when and how symptoms began.
• No contemporaneous evidence of a sudden work incident.
• Early GP notes recorded “no trauma” and symptoms worsening over two weeks.
• The mechanism of injury described at hearing was never given to treating doctors, the employer, or medico‑legal specialists.
• Medical evidence could not link the prolapse to the specific work activity; degeneration and other factors were more plausible causes.

Key takeways

• A worker must satisfy at least one of the three pathways to liability in order to have a valid workers compensation claim.
• When it is accepted that a worker has an injury, the key question is usually whether that injury has been caused by employment.
• An absence of evidence of an alternative injury-causing event does not mean an injury must have been caused by a claimed work incident
• Inconsistencies shown in the history of a worker’s reporting of symptoms, incidents and mechanism of injury could be harmful to a worker’s claim.