Beadle v State of Tasmania
[2001] TASSC 65
•8 June 2001
[2001] TASSC 65
CITATION: Beadle v State of Tasmania [2001] TASSC 65
PARTIES: BEADLE, Ian
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 99/2000
DELIVERED ON: 8 June 2001
DELIVERED AT: Hobart
HEARING DATES: 4 May 2001
JUDGMENT OF: Blow J
CATCHWORDS:
Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Claim and delay in making claim - Generally - Defective claim - Misdescription of disease - Consequences of misdescription - Amendment of claim.
Workers Rehabilitation and Compensation Act1988 (Tas), ss32(1)(b), 34(3), 44.
Aust Dig Workers Compensation [133]
Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdictions of powers of tribunals, boards, Commissioners, etc - Tasmania - Preliminary determination of issues - Amendment of claim.
Workers Rehabilitation and Compensation Act1988 (Tas), ss44, 57(1).
Aust Dig Workers Compensation [143]
REPRESENTATION:
Counsel:
Appellant: K E Read
Respondent: P Turner
Solicitors:
Appellant: Phillips Taglieri
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 65
Number of Paragraphs: 34
Serial No 65/2001
File No LCA 99/2000
IAN BEADLE v STATE OF TASMANIA
REASONS FOR JUDGMENT BLOW J
8 June 2001
This is an appeal from a decision of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"), constituted by its Chief Commissioner. The appellant was employed by the respondent for many years as a police officer, and rose to the rank of Inspector. He made a claim for compensation pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act") on 19 September 1997, but did not receive any compensation pursuant to that claim. At some stage a determination was made to the effect that a genuine dispute existed between the parties. In December 1999, the appellant referred his claim for compensation to the Tribunal, pursuant to the Act, s42(1)(a). At the hearing of that referral before the learned Chief Commissioner, his counsel sought a determination ordering the payment of weekly payments as from 13 May 1999 in respect of an alleged total incapacity for work, as well as the payment of certain medical expenses. Counsel for the respondent disputed liability and, apart from conceding that a relationship of employment had existed, made no substantial concessions. On 3 October 2000, after the appellant's case had been closed, at a stage when the respondent had tendered some exhibits but not called any witnesses, the learned Chief Commissioner took the unusual course of making a determination as to some of the issues that were before the Tribunal: [2000] TASWRCT 89. The respondent adduced no further evidence. After further submissions from both counsel, the learned Chief Commissioner dismissed the appellant's claim by a determination delivered on 30 October 2000: [2000] TASWRCT 105. The appellant has appealed from that determination. It is common ground that the determination of 3 October can be challenged in these proceedings.
The claim for compensation made on 19 September 1997 was apparently in the approved form, as required by the Act, s34(1)(a). The appellant described his "injury or disease" as "hypertension". He filled out the form in such a way as to indicate that the "injury or disease" had occurred in Hobart during normal work. In answer to the question "What happened?", he wrote, "Severe headaches ¾blurred vision due to management practices". In accordance with the Act, s34(1)(b), his claim was accompanied by a certificate from a medical practitioner in the then approved form. The certificate was provided by his then general practitioner, Dr Beechey. At the time of the hearing before the learned Chief Commissioner, it was common ground that Dr Beechey had died. The approved form required the doctor to state what the patient had presented with. It did not specify whether a list of symptoms or a diagnosis was required. Dr Beechey wrote that the appellant had presented with "headaches & hypertension". He completed a sentence beginning "The injury or disease was stated to be caused by:", by writing "work-related stress".
At the hearing, it was contended on behalf of the appellant that he was entitled to weekly payments of compensation because he was totally incapacitated by a compensable work-related condition. Two psychiatrists gave evidence on his behalf. One of them, Dr Burges Watson, considered that he was totally incapacitated as a result of post-traumatic stress disorder. The other, Dr Sale, considered that he was totally incapacitated for police work, and partially incapacitated for other work. Dr Sale had furnished a series of certificates showing a provisional diagnosis of "chronic anxiety state". At the hearing, he considered that the appellant was suffering from chronic anxiety symptoms which could be regarded as residual symptoms of a chronic post-traumatic stress disorder, or alternatively that he could be classified as suffering from personality change following exposure to traumatic events. The respondent contended that the appellant was not incapacitated for work as a result of hypertension, and that it followed, as night follows day, that his claim for compensation had to be dismissed. That analysis was overly simplistic. If the appellant was not incapacitated for work as a result of hypertension, it by no means followed that his claim for compensation had to be dismissed. I will review the relevant legislative provisions shortly.
At the hearing, the Tribunal's task in determining the appellant's claim was not constrained by pleadings. The Tribunal was not obliged to choose between the competing contentions of the parties, but was able to make findings that were inconsistent with the case of each party. See State of Tasmania v Robertson [2001] TASSC 43, per Crawford J (with whom Slicer and Evans JJ agreed) at par11. Although counsel for the appellant at the hearing, Miss James, explained the basic contentions of the appellant to the learned Chief Commissioner in opening, the issues in the proceedings were by no means confined to those she then referred to.
The legislation
The Act, s3(1), defines "injury" as including a "disease", and in turn defines "disease" to mean "any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development". Thus hypertension, post-traumatic stress disorder, and other mental ailments or mental disorders, all constitute diseases for the purposes of the Act. Likewise, the contraction of any such disease constitutes the suffering of an injury for the purposes of the Act. By virtue of s3(5), a disease is "deemed to have occurred" on the day when the worker became totally or partially incapacitated by reason of it or, if no such day can be ascertained, on the day when a medical practitioner has certified that the worker was first incapacitated by reason of that disease.
The fundamental provision entitling workers to compensation in respect of diseases is s25(1), which provides as follows:
"25 ¾ (1) If in any employment ¾
(a) …; or
(b) a worker suffers an injury, which is a disease, arising out of and in the course of his employment and to which his employment contributed to a substantial degree,
his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act ¾
(c) to the worker …".
However, this provision is qualified by s3(2A), which reads as follows:
"(2A) For the purposes of this Act, employment is taken to have contributed to a disease to a substantial degree if it is the major or most significant factor."
Although, prima facie, an employer is liable to pay compensation whenever a worker contracts a disease that arises out of, and in the course of, his or her employment, if that employment is the major or most significant factor contributing to the disease, the Act contains a number of provisions that operate to disentitle a worker to compensation in certain circumstances. These include s32(1), which provides as follows:
"32 ¾ (1) Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless ¾
(a) notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer of the worker or a person referred to in section 33(1)(b); and
(b) a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury, or where the injury results in the death of the worker, within 6 months after the date of the death."
It is significant in this case that a claim for compensation that satisfies s32(1)(b) must be one "with respect to the injury" [my emphasis]. Thus, at least prima facie, a worker who suffers a disease arising out of, and in the course of, his or her employment, is not entitled to compensation in respect of that disease if he or she, rather than making a claim for compensation with respect to that disease, makes one with respect to some other disease or injury. However, the disentitling provisions of s32(1)(b) are ameliorated by a provision in s34. That section includes the following:
"34 ¾ (1) A claim for compensation shall ¾
(a)be in a form approved by the Board;
(b)be accompanied by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person; and
(c)be given to ¾
(i) the employer of the worker or, if there is more than one employer, to one of the employers of the worker; or
(ii) a person designated for the purpose by the employer.
(2) …
(3) A defect, omission, or irregularity in a claim for compensation or a medical certificate under subsection (1)(b) shall not affect the validity of the claim and the claim shall be dealt with in accordance with this Part unless the defect, omission, or irregularity relates to information which is not within the knowledge of, or reasonably ascertainable by, the employer or his licensed insurer."
Thus, in the situation I have mentioned where a worker suffers from a disease that is prima facie compensable, but makes a claim for compensation only in respect of some other disease, s34(3) will sometimes operate so as to prevent the claim for compensation being defeated under s32(1)(b). If a worker makes a claim in which he or she, through ignorance, calls one disease by the name of another, there will be a defect or irregularity in the claim but, to the extent that the claim relates to the misdescribed disease, it will not be invalidated unless there is relevant information that is neither known to, nor reasonably ascertainable by, the employer or the employer's licensed insurer (if any). A similar situation exists if a worker is suffering from two work-related diseases, and mentions only one of them in the claim for compensation.
The requirements of s32(1)(b) as to the timely making of a claim for compensation are ameliorated by the provisions of s38 when the failure to make a claim within the prescribed period is occasioned by "mistake, absence from the State of the worker, or other reasonable cause".
If a disease is prima facie compensable pursuant to s25(1), as modified by s3(2A), and if the worker's entitlement to compensation is not defeated by s32(1), as ameliorated by ss34(3) and 38, then the worker will be entitled to weekly payments of compensation in respect of an incapacity for work if he or she satisfies the requirements of s69(1); to the payment of any reasonable medical expenses incurred as a result of the compensable disease in accordance with s75(1); and to compensation in a lump sum if he or she satisfies the requirements of ss71 and 72 in respect of one or more of the types of specified injuries listed in the table in s71(1). Although the referral in this case sought (inter alia) a lump sum payment, that part of the referral was abandoned at the start of the hearing.
The requirements for an entitlement to weekly payments of compensation are provided for in s69(1), as follows:
69 ¾ (1) Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person, the compensation payable to him under this Act is, in addition to any lump sum that may be payable under section 71 or 72 in respect of that injury ¾
(a) in the case of the total incapacity of the worker for work, weekly rate payments equal to ¾
(i)the normal weekly earnings of the worker; or
(ii)the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity¾
whichever is the greater; or
(b) in the case of the partial incapacity of the worker for work, weekly rate payments for the period of that incapacity equal to the difference between the worker’s normal weekly earnings and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity."
The issues at the hearing
Counsel for the parties at the hearing made known to the learned Chief Commissioner at the outset the contentions that I have referred to in par3 above. In the light of the legislative provisions that I have referred to, it should have been apparent that the following issues all arose, or were likely to arise, for determination upon the hearing of the referral:
(a)whether the appellant suffered from hypertension and, if so, whether his hypertension arose out of and in the course of his employment, and whether his employment was the major or most significant factor contributing to his hypertension;
(b)whether the appellant suffered from the condition described by Dr Burges Watson and Dr Sale, which I will refer to as a stress disorder, and, if so, whether his stress disorder arose out of and in the course of his employment, and whether his employment was the major or most significant factor contributing to his stress disorder;
(c)when his hypertension was deemed to have occurred;
(d)when his stress disorder was deemed to have occurred;
(e)whether his claim for compensation of 19 September 1997 was made within six months after the disease in respect of which it was made was deemed to have occurred;
(f)whether the absence of any explicit reference to a stress disorder in that claim for compensation amounted to a defect, omission or irregularity in that claim and, if so, whether that defect, omission or irregularity related to information which was not within the knowledge of, or reasonably ascertainable by, the respondent or its licensed insurer (if any);
(g)whether total incapacity for work on the part of the appellant resulted from (i) hypertension, (ii) his stress disorder, or (iii) a combination of the two;
(h)whether partial incapacity for work on the part of the appellant resulted from either or both of such diseases;
(i)whether the existence of any such total or partial incapacity was supported by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person.
The course of the hearing
When Christopher Columbus made his famous voyage in 1492, he set out without knowing where he was going; arrived somewhere, but did not know where he was; and returned home without ever knowing where he had been. The learned Chief Commissioner had a similar series of experiences in the course of the hearing. Before giving the appellant's counsel a chance to call him as a witness, he observed that there appeared to be a lot of inconsistency between a medical certificate of Dr Sale (which gave a provisional diagnosis of "chronic anxiety state") and the original claim form (which, of course, referred only to hypertension), and asked her whether she was aware that she would be taking a risk that the Tribunal might hear a lot of evidence and then determine that there was "no effective claim before the Tribunal". She was, and quite properly submitted that the Tribunal should hear all the evidence and then resolve the matter. The learned Chief Commissioner expressed concern that, given the unavailability of Dr Beechey, it might not be possible to establish that what Dr Beechey saw was a manifestation of the disease later diagnosed by Dr Sale. In the course of preliminary discussion with the respondent's counsel, he raised the possibility of there being some legal issue "as to why there is not a valid application before the Tribunal". Plainly there was a valid referral before the Tribunal. It should have been plain that an issue was likely to arise as to whether there was a defect, omission or irregularity in the claim form that referred to hypertension.
On 14 September 2000, the second day of the hearing, after the appellant had been under cross-examination for some time, and Dr Burges Watson had been interposed, given his evidence, and left, the learned Chief Commissioner expressed concern to counsel as to precisely what issues were before the Tribunal, and asked the respondent's counsel whether he had considered addressing prior to the conclusion of the evidence the argument that there was a fundamental flaw in the appellant's case. There followed a discussion with counsel, during which s34(3) was not mentioned or referred to. During that discussion, the learned Chief Commissioner said the following:
"It is just the further we go the more troubled I become as to where we are at. I just raise that, it may well be that we can't address that until we get to the end of the evidence or it may well be that it can be done at a sooner time but I just point that out because I know there may be arrangements for witnesses tomorrow and it may be that we might have to address that situation at the time because I would have thought the worker's case, at the end or the worker's case that is going to be the best time insofar as the evidence is concerned for the worker to establish that there is a proper basis for a claim for compensation to be the subject of referral to the Tribunal. But I just flag that."
At the end of that day, there was another discussion as to the issues. At that stage the appellant's case had not been closed. His wife had yet to give her evidence. The learned Chief Commissioner suggested that he receive submissions after the appellant's case was closed "as to where the case is at that stage".
The next morning, the appellant's counsel sought clarification from the learned Chief Commissioner as to the scope of the questions that he was proposing to decide following the close of the appellant's case. He responded to the effect that it was necessary to decide what issue the Tribunal was required to decide. Further, he indicated that he needed to decide whether there had been one claim for compensation or two, what was encompassed in the claim or claims, and whether the required formalities had been complied with.
The case for the appellant concluded the next day. Some exhibits had been tendered on behalf of the respondent at an earlier stage. Three days later, on 18 September, prior to the respondent's counsel being invited to call oral evidence, counsel made submissions to the learned Chief Commissioner as to the matters that were troubling him. Mr Turner correctly submitted on behalf of the respondent that the only claim that had been made was the one dated 19 September 1997. He argued to the effect that no claim for compensation had been made in respect of any stress disorder or anxiety disorder; that hypertension could not be regarded as "chronic anxiety disorder by another name"; that there was no causal connection between the appellant's hypertension and his psychiatric disorder; and that it followed that the reference to the Tribunal should be dismissed. Miss James, for the appellant, provided a list of issues similar to my list in par14 above. She addressed the learned Chief Commissioner as to the scope of the issues before the Tribunal, making specific reference to s34(3). She submitted that it was inappropriate to narrow the issues prior to the completion of the evidence.
It was in response to these submissions that the learned Chief Commissioner made his determination of 3 October 2000. Its cover page expresses the determination in the following terms: "Issues to be determined by Tribunal are confined to the claim for compensation dated September 1997". The learned Chief Commissioner gave written reasons for that determination. In the course of those reasons, he made a series of findings of fact. At par9, he said the following:
"In respect of diagnosis, I accept that there is a possibility that over time a diagnosis of an injury (disease) will alter, symptoms may vary, there may be periods of aggravation or exacerbation and investigations or tests may be conducted all of which may lead to an altered diagnosis or a more definitive diagnosis. However I do not consider that this occurred in this case on the evidence before me in relation to the worker's application."
At par11, after reviewing the evidence, he made a finding that the appellant's "post-traumatic stress disorder/chronic anxiety state" and his hypertension were separate diseases with different causes. At par12 he made a finding that the cause of his "chronic anxiety state/post-traumatic stress disorder" was traumatic events that the appellant was exposed to in his career, and that uncertainty in his employment during 1997 was not causative of that condition. He proceeded to the following conclusion in relation to the September 1997 claim:
"This claim for compensation is not capable on the evidence of incorporating a disease of chronic anxiety state/post traumatic stress disorder which I am satisfied at this stage is a different disease having quite different causative affects [sic] and circumstances."
He went on to determine, correctly, that a medical certificate issued by Dr Sale on 28 October 1999 in respect of his then diagnosis of a chronic anxiety state was not a claim for compensation for the purposes of s42.
Counsel for the respondent elected to adduce no further evidence. Counsel for each party made their final submissions. Miss James applied on behalf of the appellant to amend the September 1997 claim for compensation pursuant to the Act, s44, with a view to including the disease described as "post-traumatic stress disorder" and as "chronic anxiety state" within the scope of that claim. The learned Chief Commissioner reserved his decision in relation to both the amendment application and the s42 referral. On 30 October 2000 he made a determination dismissing both the amendment application and the application for compensation made by the s42 referral, giving written reasons. He refused the amendment application because he considered the prejudice to the respondent employer in allowing the appellant to circumvent the requirements of s32(1) (ie, the giving of notice of the injury as soon as practicable after its occurrence, and the making of a claim for compensation with respect to "the injury" within six months after its occurrence) outweighed the prejudice that the appellant would suffer as a result of evidence having to be presented a second time. He dismissed the claim for compensation on the basis that there was a lack of any evidence establishing any entitlements to compensation in respect of the September 1997 claim. I take him to have meant that there was no evidence that any medical expenses or incapacity resulted from the appellant's hypertension.
The mid-hearing determination
There is nothing in the Act that prohibits the Tribunal from determining one or more of the issues that arise in a proceeding prior to determining the other issues. It is true that s57(1) provides that "the matter to be resolved in a proceeding before the Tribunal shall be resolved by the Tribunal on such evidence as is placed before it after all parties have been given a reasonable opportunity to be heard", but I think that provision relates only to procedural fairness, and does not prohibit the determination of some issues in advance of others. The Tribunal is required by s49(1)(b) to conduct proceedings "with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit". It will therefore often be appropriate for critical issues to be determined in advance of other issues. For example, if a claim for weekly payments gives rise to a dispute as to both liability and quantum, it will often be desirable for the issue of liability to be determined before the issue of quantum. There is therefore nothing inherently wrong in the Tribunal determining one issue before another.
Mr Read argued on behalf of the appellant to the effect that the learned Chief Commissioner was obliged first to consider whether a liability to pay compensation pursuant to s25(1) was established, and only after that to consider whether the appellant was disentitled to compensation by operation of s32(1), and only after that to consider whether the requirements for an entitlement to weekly payments of compensation provided for in s69(1) were established. I think the Tribunal would often be wise to proceed in that logical sequence, but I do not think it is ever obliged by law to do so. If some issue other than the fundamental liability of an employer to pay compensation under s25(1) is likely to be of critical importance in a case, it will often be most appropriate for such an issue to be determined first. For example, if a worker claims weekly payments, and the employer contends that he or she is not incapacitated for work at all, either totally or partially, then it would sometimes be appropriate to determine that issue of fact before determining, for example, whether the worker's employment was the major or most significant factor that contributed to the disease alleged to have caused his or her incapacity.
If the Tribunal has a discretion to determine one or more of the issues in a proceeding before determining the other issues, it must follow that the Tribunal can decide to proceed in that way at any time. Thus, for example, if the Tribunal has embarked upon a hearing of a case that involves a multiplicity of issues, and considers that it might be expedient to determine some issues as preliminary issues, and to place the other issues "on hold", then it can no doubt proceed in that way. However, it is essential that the rules of procedural fairness be observed throughout. Thus, the Tribunal should not decide during a hearing to proceed in such a way without first defining the issues proposed to be determined as preliminary issues, and affording each party an opportunity to make submissions as to whether those issues should be determined as preliminary ones. Once it is decided to determine such issues as preliminary ones, any party that has not closed its case should be afforded an opportunity to present evidence in relation to the preliminary issues, and each party should be afforded an opportunity to make submissions as to the preliminary issues.
Until Mr Turner's submissions on 18 September 2000, counsel for the appellant had been given no indication that the learned Chief Commissioner might decide to determine any issue as a preliminary one. The discussions between him and counsel, which I have set out at length above, alerted them only to a proposal that, at the close of the appellant's case, he would seek their assistance in identifying the issues that were before the Tribunal. Mr Turner's submission on 18 September went beyond a submission as to the scope of the issues requiring determination, and also included a submission to the effect that the respondent had no case to answer. He did not submit that the Tribunal should set about determining a number of issues as preliminary ones. But on 3 October the learned Chief Commissioner did not make a determination as to whether there was a case for the respondent to answer. Instead, he determined that the appellant's hypertension and his stress had been caused independently of one another, he made a finding as to the cause of the stress disorder, and he made a finding to the effect that the September 1997 claim was not a claim with respect to that condition. He had not afforded the appellant's counsel an opportunity to make submissions as to those matters. He thus erred in law in that he failed to resolve the matter before the Tribunal "on such evidence as is placed before it after all parties have been given a reasonable opportunity to be heard" as required by the Act, s57(1).
As I have said, one of the issues before the Tribunal was whether the absence of any explicit reference to a stress disorder in the September 1997 claim for compensation amounted to a defect, omission or irregularity in that claim and, if so, whether that defect, omission or irregularity related to information which was not within the knowledge of, or reasonably ascertainable by, the respondent or its licensed insurer (if any). Plainly there was evidence entitling the Tribunal to make a finding, at the appropriate stage, that the appellant was suffering from an incapacity for work that resulted from the stress disorder. It was also open to the Tribunal to make a finding, at the appropriate stage, that the claim of 19 September 1997 was a claim for compensation "with respect to" the stress disorder, within the meaning of s32(1)(b). It was open to the Tribunal to find each of the following: (a) that the worker was incapacitated by some disease; (b) that he intended his claim to be a claim with respect to the disease that incapacitated him; (c) that he was intending to refer to that disease when he wrote "hypertension" on his claim form; (d) that he was in fact incapacitated by the stress disorder, and not hypertension; and (e) the misdescription of the incapacitating disease did not relate to information which was neither within the knowledge of, nor reasonably ascertainable by, the respondent or its licensed insurer (if any). In my view, the learned Chief Commissioner was obliged to consider whether or not to make such findings. In that context, he should have had regard to a passage in a letter from Dr Beechey to MMI Insurance Group dated 27 October 1997 (part of exhibit W25), which read as follows:
"On September 19, his [the appellant's] blood pressure was further elevated (165/105) and I commenced him on Adalat Oros. He told me that he was under an enormous amount of stress at work and that he had elected to pursue his stress related illness as Workers Compensation."
That piece of evidence was unchallenged and uncontradicted. Further, a report by a psychiatrist apparently engaged by the respondent's licensed insurer, Dr Strauss, dated 18 November 1997 (exhibit W20) set out a great deal of information apparently imparted by the appellant during an interview on 18 November 1997. On the basis of that report, it was open to the learned Chief Commissioner to make a finding, at the appropriate stage, that the misdescription of the appellant's stress disorder as hypertension, if there was such a misdescription, did not relate to information which was not within the knowledge of, or reasonably ascertainable by, the respondent or its licensed insurer (if any).
In making his determination of 3 October, the learned Chief Commissioner appears to have completely overlooked the ameliorative provisions of s34(3) and the evidence that I have referred to that relates to those provisions. In making that determination, and in reaching the conclusions embodied in his reasons for that determination, he erred in law in that he failed to consider whether it was open to the Tribunal to conclude that there was a defect, omission or irregularity in the September 1997 claim for compensation, and that such defect, omission or irregularity did not relate to information not within the knowledge of, or reasonably ascertainable by, the respondent or its licensed insurer (if any). He thus erred in law in determining that the claim was "not capable on the evidence of incorporating a disease of chronic anxiety state/post traumatic stress disorder". No issue arose as to whether the claim, which mentioned hypertension, was capable of incorporating the stress disorder. The question was whether there was a defect, omission or irregularity in the claim, not related to information that was not within the knowledge of, or reasonably ascertainable by, the respondent or its licensed insurer (if any).
The amendment application
After the learned Chief Commissioner had held on 3 October that the September 1997 claim could relate only to hypertension, and had overlooked s34(3), Miss James was driven to apply to amend the claim so as to include the stress condition. The power of amendment is conferred by the Act, s44, in the following terms:
"44 ¾ The Tribunal may amend any application, referral, claim for compensation or appeal at the request of the person who lodged the application, referral, claim for compensation or appeal."
The discretion to amend is unfettered, but in my view it should be exercised in accordance with the established principles that the common law has evolved in relation to the amendment of process and pleadings. Amendments ought to be allowed so as to raise and define the matters really in dispute between the parties, so long as that can be done without injustice: Cropper v Smith (1884) 28 Ch D 700 at 710; Shannon v Lee Chun (1912) 15 CLR 257 at 261; Clough v Frog (1974) 48 ALJR 481; Commonwealth v Verwayen (1990) 170 CLR 394 at 456, 464, 485. The amendment sought would have ensured that the issue whether the appellant was entitled to compensation for a total incapacity for work resulting from his stress disorder was raised for determination in the proceedings. Allowing the amendment would have accorded with the requirement of s49(1)(b) that the proceeding be "conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit". It therefore should have been allowed unless the respondent would have suffered injustice, either through the loss of an acquired immunity or through being unable to receive a fair hearing, to such a degree that the factors weighing against the allowing of the amendment were considered to outweigh those favouring the amendment.
The learned Chief Commissioner refused the amendment because he believed that, if allowed, it would have enabled the appellant to circumvent s32(1)(a) and (b). He erred in law in taking that view in relation to s32(1)(a). If notice of the stress disorder had not been given as soon as practicable after its occurrence, and before the appellant had voluntarily left his employment, then the proposed amendment of the September 1997 claim would have had no impact on those historical realities. The appellant would have been able to circumvent the notice requirement in s32(1)(a) only by satisfying the requirements of the relevant ameliorative provision, s37, ie, by establishing that the failure to give notice was occasioned by mistake or other reasonable cause, and that the respondent's defence was not prejudiced by reason of his failure.
I would prefer not to express a view as to whether an amendment to a s32(1)(b) claim for compensation is deemed to have been made when the claim was originally made, or whether it should be treated as having been made only at the time of the amendment. In the absence of any special order, an amendment to a pleading will date back to the time when the pleading was originally delivered: Sneade v Wotherton Barytes & Lead Mining Co Ltd [1904] 1 KB 295; Warner v Sampson [1959] 1 QB 297; Baldry v Jackson [1976] 2 NSWLR 415 at 419; Webster Ltd v Roberts [1989] Tas R 37 at 39. The question whether a s44 amendment to a s32(1)(b) claim is in the same category would only arise for consideration if it was found as a fact that the September 1997 claim for compensation was not a claim "with respect to" the stress disorder. In the light of the evidence suggesting that the appellant intended the claim to relate to the condition that was incapacitating him, any analysis of the effect of an amendment to that claim might well be academic.
The learned Chief Commissioner correctly recognised that the amendment application required him to consider the factors weighing for and against the allowing of an amendment, but in my view he overlooked one very significant factor, namely that the refusal of the amendment might well have deprived the appellant of an entitlement to compensation in respect of his stress disorder. In my view he erred in law in failing to take that matter into account, as well as in thinking that allowing an amendment would have enabled the appellant to circumvent s32(1)(a).
Conclusion
As a result of the errors of law that I have identified, the appeal must be allowed and the determinations of the learned Chief Commissioner set aside. Counsel for the appellant submitted that, if the appeal succeeded, the matter should be remitted to the learned Chief Commissioner, rather than to another Commissioner, in order to minimise costs. As counsel for the respondent did not submit to the contrary, I will so order.
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