There were two new decisions handed down today by the High Court of Australia involving workplace negligence claims. But neither of them seems to have any general implications for the common law of torts, so I will just mention them very briefly.

In Maurice Blackburn Cashman v Brown [2011] HCA 22 (22 June 2011) http://www.austlii.edu.au/au/cases/cth/HCA/2011/22.html the issue arose under the legislation regulating workplace negligence claims in Victoria. Essentially, before a common law claim can be filed, it must be in relation to a "serious injury". A Medical Panel is given the task of certifying whether or not an injury is sufficiently serious to allow a claim to be commenced. A Panel had done so in this case (a claim for psychological injury relating to alleged workplace bullying and harassment, though those issues are not discussed in the decision.) The Panel's decision was said to immune from challenge for various purposes; the issue was whether the issues that the Panel had resolved (eg that a serious psychological injury had been suffered) could still be challenged in the common law proceedings, or was the court obliged to defer to the Panel's judgment. The High Court ruled that the Panel's decision was not determinative for the common law proceedings. Even though s 68(4) of the relevant Act said that the Panel's decision was binding "[f]or the purposes of determining any question or matter", the HC said at [34] that this had to mean ""for the purposes of determining any question or matter arising under or for the purposes of the Act". Since, once the threshold had been crossed, the common law claim was not based on a right given under the Act, but on the common law, the HC held that the provision did not preclude further litigation on the issues for the purposes of the common law claim.

In the second case, Dasreef Pty Ltd v Hawchar [2011] HCA 21 (22 June 2011) http://www.austlii.edu.au/au/cases/cth/HCA/2011/21.html the claim was by a worker in relation to an industrial disease caused by exposure to dust. The issues revolved around the evidence which the trial judge (in the Dust Diseases Tribunal, a specialist court dealing with these matters) had ruled to be acceptable. One was about the acceptance of expert opinion evidence by a specialist. The medical specialist had been taken by the judge to have given evidence about the specific concentration of fibres in air the worker had breathed. In fact he was not qualified to have made such a judgment, nor was any clear factual basis for that judgement made clear. The HC ruled that the judge should not have accepted the evidence. There is a lengthy discussion of the issue in the concurring judgment of Heydon J, who is the author of the Australian edition of Cross on Evidence and clearly one of Australia's main experts on the area. The second issue was whether the judge was entitled to take into account his own experience at having heard many such cases, to reach a view about the presence of particles in the air. While the legislation (unusually) allows evidence presented in earlier related litigation to be used in later cases, it prescribes fairly limited circumstances in which that can happen, and the High Court held that those circumstances were not present here.

Having said all that, while the High Court held that these two pieces of evidence should have been rejected, the majority very briefly commented that there was sufficient other expert evidence on relevant points to make out the plaintiff's case, and so ruled in favour of the worker anyway. (Heydon J thought that the matter should have been referred back to the Court of Appeal for further consideration of this issue.)