Animal Tuckerbox Pty Ltd v Lloyd
[2013] TASSC 4
•22 February 2013
[2013] TASSC 4
COURT: SUPREME COURT OF TASMANIA
CITATION: Animal Tuckerbox Pty Ltd v Lloyd [2013] TASSC 4
PARTIES: ANIMAL TUCKERBOX PTY LTD
v
LLOYD, Simon Christopher
FILE NO: 1004/2012
JUDGMENT
APPEALED FROM: Lloyd v Animal Tuckerbox Pty Ltd [2012] TASWRCT 38
DELIVERED ON: 22 February 2013
DELIVERED AT: Hobart
HEARING DATE: 8 February 2013
JUDGMENT OF: Blow J
CATCHWORDS:
Workers' Compensation – Proceedings to obtain compensation – Preliminary requirements – Claims for compensation – Failure to make claim within time – Other reasonable cause – Emotional reaction to previous unpleasant claim experience.
Workers Rehabilitation and Compensation Act 1988 (Tas), s38(1).
Quinlivan v Portland Harbour Trust [1963] VR 25; Black v City of South Melbourne [1963] VR 34; Van Dongen v Northern Territory of Australia (2005) 16 NTLR 169, followed.
Aust Dig Workers' Compensation [302]
REPRESENTATION:
Counsel:
Appellant: A Mills
Respondent: B R McTaggart
Solicitors:
Appellant: Dobson Mitchell & Allport
Respondent: Jim Saric Law
Judgment Number: [2013] TASSC 4
Number of paragraphs: 17
Serial No 4/2013
File No 1004/2012
ANIMAL TUCKERBOX PTY LTD v SIMON CHRISTOPHER LLOYD
REASONS FOR JUDGMENT BLOW J
22 February 2013
This is an appeal from a decision of the Workers Rehabilitation and Compensation Tribunal. The tribunal was constituted by its chief commissioner, Mr S Carey. His decision concerned an injury suffered by the respondent, Simon Lloyd, in the course of his employment by the appellant, Animal Tuckerbox Pty Ltd, on 22 October 2010. I will refer to the parties as "the worker" and "the employer".
The worker made a claim for compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act") on 23 January 2012. However, s32(1)(b) of the Act provides that a person shall not be entitled to compensation unless "a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury". The worker's claim was made more than 15 months after his injury. However s38(1) of the Act provides that the failure to make a claim for compensation within the period prescribed by s32(1)(b) "does not affect the validity of the claim if the failure was occasioned by mistake, absence from the State of the worker, or other reasonable cause". The learned chief commissioner held that the worker's failure to make a claim within the prescribed six-month period was occasioned by "reasonable cause", and made a determination accordingly. He accepted evidence that the worker had made a previous workers compensation claim against an earlier employer, had been accused then of making a false claim, and had been so upset by that experience that he was reluctant to claim compensation again. He found that the worker's reaction to that experience amounted to a reasonable cause for him not making a claim for compensation within the applicable time limit. The employer contends that, as a matter of law, it was not open to the tribunal to find that the worker's reaction to his earlier experience amounted to a "reasonable cause".
Section 63(1) of the Act confers a right of appeal to this Court from determinations of the tribunal, but only when the appellant is aggrieved by the determination "in point of law". Accordingly, the question I have to determine is whether it was open to the tribunal to find that the worker's reaction to his earlier claim experience amounted to a "reasonable cause". Whether the facts as found fall within the statutory description of "reasonable cause" is a mixed question of fact and law. In Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at par[24], Gleeson CJ, Gummow and Callinan JJ said:
"Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way …, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law … . However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 at 138:
'[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law'."
There have been a great many decided workers compensation cases concerning what may amount to a "reasonable cause" for not claiming compensation within a prescribed time. Ultimately each case has to be determined on the basis of its own facts. In Shotts Iron Company Ltd v Fordyce [1930] AC 503 at 515, Lord Macmillan said:
"It is impossible to frame a definition of reasonable cause for omitting to make a claim. Indeed it would be unreasonable to attempt the task. The decided cases on the subject, from the mass of which Mr MacRobert considerately drew only a few examples, furnish an unhappy instance of history teaching by examples, for the only lesson which they impart is that no one case can govern any other and that each case depends upon its own circumstances."
In Quinlivan v Portland Harbour Trust [1963] VR 25 at 28, Sholl J said the following in relation to the equivalent provision in a Victorian statute:
"I think the subsection means to refer to cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."
That passage was quoted with approval by the Full Court of the Supreme Court of Victoria in Black v City of South Melbourne [1963] VR 34 at 38, where the Full Court said:
"The next question is whether there was 'reasonable cause' for the failure to give notice. The inquiry here appears to be of a much wider kind justifying a more liberal attitude. The expression 'reasonable cause' appears to us to mean some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable."
Both of those Victorian cases have been cited with approval in the Northern Territory Court of Appeal: Van Dongen v Northern Territory of Australia (2005) 16 NTLR 169 per Riley J (as he then was), with whom B R Martin CJ agreed, at pars[27] and [28].
In this case the worker's evidence as to his earlier claim and its impact was brief and unchallenged. It was to the following effect. He was working on a salmon farm in around 2001 or 2002 when he hurt his shoulder at work on a weekend. He reported his injury to the management on the Monday. He was required to attend a meeting about his injury. The employer's occupational health and safety man asked him questions. That man falsely asserted that the worker's injury had happened at home when he was doing renovations, and that he had said so. That made him feel "really, really bad about the whole situation". He was upset by the allegations. He felt like a criminal. It left a bad taste in the mouth. He saw his general practitioner about the October 2010 injury at the end of December 2010. He told her that he would rather not make a workers compensation claim unless he had definite proof that he had a work-related injury. He thought other people might question whether his injury was work-related, and therefore decided that he would not make a claim at that time. He went back to work at some time in February. In February/March/April he was managing his work and did not really see any point in putting in a claim.
His general practitioner also gave unchallenged evidence that he told her in January 2011 that he did not want to make a workers compensation claim; that he "was very keen to use his sick leave to try and get over the injury that way"; and that "he'd had a negative experience previously with workers compensation and really wanted to make as little waves as possible".
In the reasons for his determination, the learned chief commissioner said, at par[8]:
"I accept on the evidence that the worker was aware that he had a proper basis to make a claim for compensation but that he was reluctant to do so due to the unpleasant experience he had had on an earlier occasion."
After referring to some of the relevant evidence, he continued, at par[9]:
"The worker clearly made a conscious decision not to make a claim for compensation, knowing he had suffered an injury at work which his general practitioner supported as being work caused and notwithstanding that the symptoms from that condition had continued throughout the relevant period. The question therefore is whether his reluctance and the basis for such reluctance can be classified as a reasonable cause."
After quoting from Black v City of South Melbourne (above), he concluded, at par[11]:
"I formed the view listening to the worker's evidence concerning his reaction to being challenged, and by inference considered untruthful or in some way having made a false claim in his evidence concerning a previous workers compensation claim, that he suffered a real feeling of hurt and concern. The worker's reaction to this was understandable in developing a significant reluctance to place himself in that circumstance again. Having noted the worker's evidence and reaction in questioning concerning that previous workers compensation claim I conclude that he had been markedly affected by that event. I also consider that in those circumstances, which I accept, there was a cause which a reasonable person would accept as sufficient, or a cause consistent with a reasonable standard of conduct which might be expected so as to amount to a reasonable cause for not making a claim for compensation within the applicable time limit. This, in conjunction with the worker's belief that there had been a marked improvement but not total improvement in his condition upon his return to work in early 2011, fortifies my view that there was a reasonable cause."
In considering whether the impugned finding of a reasonable cause was open, it is appropriate to have regard to the evidence and findings as to the severity of the worker's injury, and as to whether it was getting better or worse during the six-month period. At par[7] of his reasons, the learned chief commissioner made findings that the worker had taken a number of weeks off work due to incapacity; that he had incurred approximately $1,000 for treatment; and that his symptoms had not completely resolved at any time. At par[6] he accepted evidence that, at the time of worker's return to work, his back pain was good but not perfect, and that he was not in much pain "but not perfect". That evidence formed the basis for the reference, in the final sentence of the learned chief commissioner's reasons quoted above, to "the worker's belief that there had been a marked improvement but not total improvement in his condition upon his return to work in early 2011".
The impugned finding that the worker had reasonable cause for not making a timely claim was based on an assessment of the worker's emotional state, and not upon any act or omission of the sort contemplated by the Victorian Full Court in Black v City of South Melbourne (above). There is no reason to regard that case as authority for the proposition that a worker's emotional state, or any other state of affairs, could not constitute a reasonable cause.
If a worker were suffering from a mental illness, and as a result failed to make a timely claim for compensation, that mental illness might be regarded as a reasonable cause for the failure to make a timely claim, at least in some circumstances. Although this case concerns the worker's emotional state, there is no suggestion that he was suffering from any mental illness or psychological disturbance, nor that the consequences of his unpleasant experience in 2001 or 2002 warranted any sort of professional assistance or interfered with his way of life. When emotional disturbance of some sort plays a part in causing a failure to make a timely claim, it would be fair to say that the greater the degree of emotional disturbance, the more readily it may be regarded as a reasonable cause. On the other hand, a disproportionate reaction to an unpleasant past event might readily be regarded as unreasonable. And the greater the severity of a worker's injury is, and is known by that worker to be, the less readily one might categorize emotional reasons for failing to make a timely claim as reasonable.
It certainly would have been open to the learned chief commissioner to take account of the degree of unpleasantness encountered by the worker at the time of his earlier claim, the length of time that had passed since then, the severity of his injury, and the fact that he had not made a full recovery, and then to conclude that there was no reasonable cause for him to make a conscious choice not to make a claim in early 2011. On the other hand, having regard to the evidence I have referred to, and to what the learned chief commissioner said about his observations of the worker when he was giving evidence, I think it was reasonably open to him to make a finding that the worker's earlier experience caused him to suffer "a real feeling of hurt and concern", to make a finding that it was understandable that his reaction was to develop "a significant reluctance to place himself in that circumstance again" and to make a finding that the worker had been "markedly affected" by his past experience. In all the circumstances, I conclude that it was open to the learned chief commissioner to regard the worker's reaction to his earlier claim experience as a reasonable cause occasioning his failure to make a timely claim for compensation.
I have therefore decided to dismiss the appeal.
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