Hobart City Council v Brockwell

[2007] TASSC 14

[2007] TASSC 14

CITATION:                 Hobart City Council v Brockwell [2007] TASSC 14

PARTIES:  HOBART CITY COUNCIL
  v
  BROCKWELL, David Andrew

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 77/2006
DELIVERED ON:  26 March 2007
DELIVERED AT:  Hobart
HEARING DATE:  16 March 2007
JUDGMENT OF:  Blow J

CATCHWORDS:

Workers' Compensation – Assessment and amount of compensation – Discontinuation of payments – Procedural matters – Generally – Medical certificate provided more than 14 days after period specified in previous certificate – Meaning of "more than 14 days".

Workers Rehabilitation and Compensation Act1988 (Tas), s69(13).
Aust Dig Workers' Compensation [429]

REPRESENTATION:

Counsel:
             Appellant:  I L Hallett
             Respondent:  S Taglieri
Solicitors:
             Appellant:  Page Seager
             Respondent:  Phillips Taglieri

Judgment Number:  [2007] TASSC 14
Number of paragraphs:  21

Serial No 14/2007
File No LCA 77/2006

HOBART CITY COUNCIL v DAVID ANDREW BROCKWELL

REASONS FOR JUDGMENT  BLOW J

26 March 2007

1. This appeal is primarily about the meaning of the words "more than 14 days after the expiration of that specified period" in the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s69(13). There are also subsidiary issues as to when s69(13) applies.

1. The respondent ("the worker") suffered a back injury in the course of his employment by the appellant ("the employer") in August 2004. He made a claim for compensation under the Act. The employer accepted the claim and began paying compensation. During 2005 the employer stopped making weekly payments, relying on the Act, s86(1). The worker continued to provide the employer with medical certificates, each of which certified that he had a partial incapacity for work during a specified period. During June 2006 he provided one certifying that he had such a partial incapacity for a period ending on 2 August 2006. On 17 August 2006, he provided another certificate certifying that he had a partial incapacity from 3 August 2006 to 3 October 2006.

1. The Act, s69(13), provides as follows:

   "(13)    If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a further certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which section 81A applies."

2. The employer took the view that, when the worker provided the certificate on 17 August 2006, he did so more than 14 days after the expiration on 2 August 2006 of the period specified in the previous medical certificate.  The employer elected to treat the August certificate as a claim for compensation to which s81A applied, and referred the matter to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") pursuant to s81A.  When that referral came before the Tribunal, counsel for the worker submitted that the provisions of s69(13) were inapplicable, and that the Tribunal had no jurisdiction.  The learned commissioner made a determination to that effect.  This is an appeal by the employer from that determination.

The meaning of s69(13)

1. Essentially the learned commissioner took the view that 17 August was not "more than 14 days after" 2 August for the purposes of s69(13). He did not make an arithmetical mistake. If he had, he would have made a wrong finding of fact, and there would be no right of appeal. The learned commissioner based his reasoning on the wording of s69(13) and on the Acts Interpretation Act 1931, s29(2). The employer contends that he erred in law, and that 17 August was more than 14 days after 2 August. The worker contends that the learned commissioner was right to conclude that the Tribunal had no jurisdiction to deal with the referral under s81A.

1. The Acts Interpretation Act, s29(2), provides as follows:

   "(2)     Where by or under an Act a period is expressed to be a specified number of clear days or a specified number of days at least, that period shall be reckoned exclusively both of the given day or of the day of the specified act or event and also of the day on which the purpose is to be fulfilled."

2. The learned commissioner reasoned that, although s69(13) did not use the words "clear days" or "at least", common sense required him to conclude that the legislature could not have intended the words "more than" to produce a different result from the use of the words that it did not use.  He reasoned that it followed that, the period specified in the previous medical certificate having expired on 2 August, the worker had up to and including 17 August to provide the employer with a new certificate, and the employer could not invoke s81A if one were provided on 17 August.  That reasoning was his own.  It was not the reasoning relied on by counsel for the worker before him, or before me.

1. Counsel for the worker submitted, both to the learned commissioner and to me, that the words "more than 14 days" in s69(13) should be construed as referring to the length of the interval between the last day of the period specified in the earlier certificate (2 August in this case) and the day of the provision of the new certificate (17 August in this case). She submitted that such an interpretation was necessary for the word "more" in s69(13) to have any meaning. She submitted that such an interpretation would promote the purpose or object of s69(13), and would be appropriate because the Act is a piece of beneficial legislation that should be interpreted favourably to workers.

1. I reject those submissions.  In my view the meaning of s69(13) is perfectly clear and unambiguous.  When, as in this case, a medical certificate specifies a period of incapacity ending on a particular day, without specifying any particular time of day, the certificate must be taken to mean that the worker is incapacitated until the end of that day, at midnight.  The period of 14 days specified in s69(13) runs from the beginning of the following day, for exactly 14 days.  It expires at the end of the 14th day after the expiry of the period specified in the medical certificate, again at midnight.  If the worker provides a further certificate at some subsequent time, whether it be minutes, hours, days, months or years after that time, the provisions of s69(13) apply.  Thus, in this case, the period specified in the medical certificate expired at midnight on the night of 2 August 2006; the period of 14 days specified in s69(13) expired at midnight on the night of 16 August 2006; and the certificate provided the following day was provided "more than 14 days after the expiration of that specified period", ie the period specified in the June medical certificate.  In other words, when the worker provided a certificate on the 15th day after the expiration of the period specified in the previous medical certificate, he was doing so "more than 14 days after the expiration of that specified period" within the meaning of s69(13). 

1. As a general rule, the words of a statute should be given their ordinary grammatical literal meaning unless that would lead to some absurdity, or to some repugnance or inconsistency with the rest of the statute: Grey v Pearson (1857) 6 HLC 61 at 106, 10 ER 1216 at 1234; Amalgamated Society of Engineers v Adelaide Steamship Co Limited (1920) 28 CLR 129 per Higgins J at 161 – 162. The interpretation that I have adopted accords with the ordinary grammatical literal meaning of s69(13). The interpretation adopted by the learned commissioner, and urged upon me by counsel for the worker, would result in the number "14" in s69(13) being interpreted as meaning "15". There is no absurdity, repugnance or inconsistency with the rest of the Act involved in interpreting "14" as meaning "14". Since there is no ambiguity in the subsection, and no room for any competing interpretation, there is no room for the application of the rules of statutory interpretation that, when applicable, require purposive and beneficial approaches to legislation.

1. The learned commissioner was wrong to try to apply the Acts Interpretation Act, s29(2), in the interpretation of s69(13) since that subsection did not use the words "clear days" or "at least". Furthermore, the interpretation that I have adopted results in "more than 14 days" being construed as meaning "more than 14 clear days". For the above reasons, I conclude that the learned commissioner erred in law in his interpretation of s69(13) and that he was obliged to find that the certificate provided on 17 August 2006 was provided more than 14 days after 2 August 2006.

Applicability of s69(13) when weekly payments not being made

1. However, that is not the end of the matter.  Counsel for the worker relied on a second jurisdictional argument before the learned commissioner and before me.  The learned commissioner found it unnecessary to rule on that argument.  Counsel for both parties asked me to rule on it, rather than remitting the matter for the Tribunal to rule upon it.  I will accede to their request in order to save the parties further time and expense.

1. As I have said, the employer stopped making weekly payments to the worker during 2005, relying on the Act, s86(1). The worker contends that the employer was not entitled under s86(1) to stop making the weekly payments. He has referred the dispute as to the termination of his weekly payments, and his entitlement or otherwise to weekly payments, to the Tribunal in a separate proceeding pursuant to the Act, s42.

1. Counsel for the worker submitted to me that s69(13) was intended only to apply in a situation where weekly payments were being made and that, since they were not being made to her client, the Tribunal had no jurisdiction to deal with the reference that was made in reliance upon s69(13). 

1. It seems clear that s69(13) was inserted for the benefit of employers who wished to cease making weekly payments. In most situations, the unilateral cessation of weekly payments would amount to an offence: s81B(2). Without s69(13), an employer wishing to dispute liability for the continuation of weekly payments would often need to refer the matter to the Tribunal pursuant to s42, and to continue making weekly payments until the matter was fully heard and determined by the Tribunal. As a result of the enactment of s69(13), an employer can take a speedier course when there has been a gap of more than 14 days between the expiry of one medical certificate and the provision of the next. In that situation the employer may refer the matter to the Tribunal pursuant to s81A. The Tribunal must then consider whether a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments. If it decides that the employer has a reasonably arguable case, the Tribunal must determine that compensation is not to be paid by the employer: s81A(3)(c). It is then up to the worker to seek a determination in his or her favour.

1. Plainly s69(13) was not introduced to facilitate the resolution of long standing disputes as to whether weekly payments had been rightly or wrongly terminated in the past. And it may well be that an employer who has long ago ceased making weekly payments can gain nothing by using s69(13) to refer a dispute about weekly payments to the Tribunal. But it does not necessarily follow that the Tribunal has no jurisdiction in the present situation. It is necessary to consider the wording of the relevant provisions in the Act. Section 69(13), which of course concerns the expiry of one medical certificate and the presentation of another, refers to the earlier of the two certificates as "a medical certificate provided by a worker under this section". The function of s69 is to create an entitlement to weekly payments in respect of periods of total or partial incapacity. The only other reference to medical certificates in the section is in s69(1), which limits the availability of weekly compensation to cases "where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by a medical practitioner or accredited person". Such certificates need to be provided in order for compensation to be payable. If a worker claims to be entitled to weekly payments, is not receiving them, is seeking them in proceedings before the Tribunal, and continues to provide the employer with medical certificates of the type referred to in s69(1), each of those certificates must be "a medical certificate provided by a worker under this section" within the meaning of s69(13). It follows that the certificate in respect of the period ending on 2 August 2006 was such a certificate, and that the certificate provided on 17 August 2006 was a "further certificate" within the meaning of s69(13). The employer was therefore entitled to treat the latter certificate as a claim for compensation to which s81A applied, by virtue of s69(13). On that basis, I reject the second jurisdictional argument.

Unchanged medical conditions

1. That is not the end of the matter. Counsel for the worker suggested that s80A might deprive the Tribunal of jurisdiction. That section deals with the meaning of the words "claim for compensation" in the Act, PtVII, Div1, which includes s81A. It reads as follows:

"80A     For the purposes of this Division, a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer."

1. Sometimes, after a worker is injured, the injury causes a secondary medical condition to develop, and the worker can be incapacitated as a result of that secondary condition alone, and not by the original injury. Thus, for example, a physical injury can result in a psychiatric condition which incapacitates the worker long after he or she has made a full physical recovery. In this case, the worker was incapacitated as a result of a back injury, and there is no suggestion that any secondary condition or related condition has caused or contributed to any incapacity. According to counsel for the worker, it is unclear whether, in that situation, s80A prevents the employer from relying on s69(13). In other words, she submitted that it was unclear whether, after a break of more than 14 days in certification, an employer may treat a fresh medical certificate as a claim for compensation only if it relates to a medical condition which was not relied upon by the worker at the time he or she originally claimed compensation. She suggested that, since her client's back injury was not "an injury for which the worker has not previously made a claim for compensation", s81A might not be available despite the presence of s69(13).

1. I disagree.  In Thornton v Apollo Nominees Pty Ltd (2003) 12 Tas R 216 at 227 – 228, Crawford J, with whom the other members of the Full Court agreed, said:

"It is patent that by defining a claim for compensation for the purposes of PtVII, Div1, as a 'claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation', s80A is referring to the injury originally suffered by the worker and upon which his or her claim for compensation is based for its foundation."

However, the purpose of s69(13) is to enable an employer to invoke s81A when it otherwise could not do so.  It enables an employer, if the employer elects to do so, to treat a medical certificate as something that it is not, namely "a claim for compensation to which section 81A applies".  There is nothing in s69 to require a s69(1) certificate to state the cause of the worker's incapacity: State of Tasmania v Parsons (2002) 11 Tas R 26 at 52; Thornton, (supra), at 228. When Parliament enacted ss69(13) and 80A by passing the Workers Rehabilitation and Compensation Amendment Act 2000, it clearly intended the s81A procedure to be available in two situations – the "initial claim" situation contemplated by s80A, and the "gap in certification" situation contemplated by s69(13). The purpose or object of s69(13) was to provide a relatively speedy mechanism for employers, after a gap in certification, to obtain determinations that compensation not be paid. There is no reason to think that Parliament intended to discriminate between workers incapacitated only by their original injuries and workers incapacitated as a result of secondary medical conditions. Such a result would be absurd. I therefore conclude that the employer was entitled to rely upon s69(13), even though the medical certificate provided on 17 August 2006 related to precisely the same medical condition as the worker's initial claim for compensation. The appeal must succeed.

1. It may be that the outcome of this appeal has made absolutely no difference to the parties. Since a reference to the Tribunal under s42 is pending, the Tribunal has all the jurisdiction it needs to determine what compensation, if any, the worker is entitled to receive in respect of the period since weekly payments were stopped. All that I have decided is whether the Tribunal has concurrent jurisdiction to make a determination in respect of a shorter period.

1. For the above reasons, I order that the appeal be allowed, that the determination of the Tribunal be set aside, and that the matter be remitted to the Tribunal for determination in accordance with law.