Kleinrahm v South Australian Health Commission No. Scgrg-97-700 Judgment No. S6562

[1998] SASC 6562

KLEINRAHM v THE SOUTH AUSTRALIAN HEALTH

COMMISSION - WOMEN’S & CHILDREN’S HOSPITAL

Full Court
Coram:  Doyle CJ, Cox and Williams JJ

Doyle CJ

Introduction

This is an appeal against a decision of the Workers Compensation Appeal Tribunal ("the Tribunal").  By section 100(3) of the Workers’ Rehabilitation and Compensation Act, 1986 ("the Act") the appeal is "limited to a question of law."

By its decision, the Tribunal dismissed an appeal against a decision by a Review Officer.  The Review Officer had decided that a claim for compensation, made by the appellant ("the worker") was not made within the prescribed period of six months (see section 52(1)(b) of the Act) and that grounds were not made out on which the Review Officer could hold that the failure to make the claim within the prescribed period should not be a bar to the making of the claim.

The time within which, and the form in which claims are to be made, is dealt with by section 52(1) of the Act.  Section 52(3) of the Act provides:-

1. Notwithstanding subsections (1) and ...
            (a)     ...
            (b)     a failure to make a claim within the prescribed period is not a bar to the making of a claim if -

   (i)     the proper determination of the claim has not been substantially prejudiced;  or

   (ii)     the failure to make the claim within the prescribed period was occasioned by ignorance of the claimant, mistake or absence from the State, or other reasonable cause."

The Review Officer held, and on appeal the Tribunal agreed, that the failure to make the claim within the prescribed period could not be excused under subparagraph (b).

On appeal, various grounds were argued.

First, that the Tribunal erred in law in its approach to its function.  As I understood the submission, it was that the duty of the Tribunal was to consider the matter afresh, not to consider whether an error by the Review Officer could be demonstrated.  The submission was that the decision of the Review Officer could stand only if the Tribunal came to the same conclusion as the Review Officer, considering the matter afresh.

It was further argued that, in any event, the Tribunal had failed to consider whether the Review Officer had erred.  It was submitted that the Tribunal merely considered whether the findings made by the Review Officer were open to her.

It was submitted that the onus lay upon the present respondent ("the employer") to establish that it had been substantially prejudiced by the failure to make the claim within the prescribed period.  It was also submitted that, on the evidence, the finding of prejudice was not able to be made.  In particular, reliance was placed upon the fact that there was evidence of the worker having made complaints to her general practitioner, that she was suffering from dermatitis, while she was engaged in the relevant work, and reference was made to uncontested medical evidence that the work that she was doing had the potential to aggravate the condition from which she suffered.  In the light of this it was argued that the delay had caused no prejudice.  In effect, it was a pretty clear case, counsel argued.

It was submitted that the Review Officer and the Tribunal should have made findings in the worker’s favour under section 52(3)(b)(ii).

It was argued that, on one view, the claim that the worker made could be regarded as a claim for weekly payments of income maintenance from the time when her claim was lodged, and that if the claim was so regarded it was not made outside the prescribed period.

Finally, a complaint was made about the order made by the Tribunal as to costs.

Facts

I propose to state the facts quite briefly.  I will confine myself largely to the undisputed facts.

The worker is a registered nurse. The worker was vulnerable to phases of dermatitis affecting her hands, resulting from contact with certain irritants.  In particular, irritants contained in substances used for hand washing in the course of her work had the potential to cause the condition to flare up.  The worker obtained employment as a nurse with the employer in June 1990.  In about October 1991 she began work in the Intensive Care Unit ("ICU") of the employer’s hospital.  The worker’s claim was that, particularly after she began this work, her dermatitis worsened, and that this was due to increased hand washing and increased use of gloves while working in the ICU.

By letter dated 6 June 1992 the worker resigned from her employment.  The letter said that she was resigning because of "recent health problems".  The letter did not elaborate.  At that time she was suffering from an unrelated illness.  The employer’s records contain no record of any complaint made by the worker, to anyone in authority, about dermatitis of her hands.

In November 1992 the worker sought medical treatment for dermatitis of the hands.  She saw a general practitioner and a specialist.  It seems clear that the condition was quite acute at the time.  A letter from Dr Hanna (the specialist whom she consulted) to the worker of 21 December 1992 says that her condition is "work caused", and that the worker might be able to claim workers compensation.

The worker said that during December 1992 she attended a Community Legal Service with a relative.  The relative was seeking some legal advice.  During that attendance the worker’s possible claim was raised, and she was told that it might be compensable.  The worker was then overseas for about three months.  The worker said that she consulted a solicitor.  She was unsure whether this was before she went overseas or on her return in March 1993:  AB234.  The effect of her evidence was that the solicitor was instructed to make a claim for workers compensation.  The solicitor was not called, and on my reading of the transcript, privilege appears to have been claimed in respect of what passed between the worker and the solicitor.  The worker acknowledged that this solicitor told her that her condition might be compensable, and that a claim form was required if she was to make a claim:  AB236.  When that advice was given was not disclosed.

No claim was made by the solicitor.  A letter was sent by the worker to the employer and received on 2 April 1993.  The worker gave evidence that the solicitor helped her prepare the letter.  The letter said that she was suffering from dermatitis, that this was caused by her employment, and that she was unable to work.  The letter has not been treated as a claim for compensation, and it did not comply with the statutory requirements.  The employer replied to this letter by letter dated 6 April 1993.  The employer explained that a claim  for compensation should be made on the proper form, and that the relevant forms could be obtained from any post office.

The worker gave evidence that she instructed a different solicitor in the middle of 1994.  A claim in the proper form was received by the employer on 21 December 1994.  The relevant notice of disability and claim form were dated 23 April 1993.  No explanation for the further period of delay was provided.

The worker said in evidence that she had been advised about the 6 month time limit.  She was not sure if that advice was given by the first solicitor or the second solicitor:  AB250-251.

It appears to have been agreed before the Review Officer that the claim was to be taken as a claim for weekly payments of income maintenance from the date of the worker’s resignation in June 1992.  Counsel for the worker acknowledged, before this Court, that it might be that weekly payments could be claimed only from the time when the worker wrote to the employer in April 1993, or from the time when the claim form was received in December 1994.

The Review Officer’s decision

The employer had rejected the claim.  One of the grounds for rejecting the claim was the failure to make the claim within the prescribed period.

The Review Officer found that the employer was substantially prejudiced by the delay in making the claim.  The Review Officer said that the employer was not able to get "contemporary medical reports."  The Review Officer also found that, by the time the claim was made, it was difficult for the employer to get witness statements from fellow workers to whom the worker said she had made complaints while employed by the employer.

The first of those findings is not particularly clear.  Presumably it means that, by the time the claim was made,  it was difficult for the employer to get confident medical advice about the link between the employment conditions and the worker’s then condition.   That difficulty, presumably, was attributable to the fact that the passage of time and intervening events had the capacity to cloud the issue.

I mention, in this context, that two medical specialists gave evidence before the Review Officer.  One of them was Dr Hanna.  Only one of them was asked any questions that bore on the issue of prejudice. The evidence of that witness was that, as one might expect, the best time to investigate whether one thing or another was the cause of the worker’s condition was the period after the first cause has occurred and before the second cause had occurred:  AB138.

The Review Officer then considered the matter referred to in section 52(3)(b).

The Review Officer found that by December 1992 the worker had received advice that she might have a claim.  The Review Officer referred to the letter from Dr Hanna to the worker.  She then found that "the worker had an informed opinion around December 1992".  On that basis she appeared to dispose of ignorance:  AB332.

The Review Officer found that, although the worker was overseas from about December 1992 until March 1993, she had received that advice before she had left.  Accordingly, the Review Officer found that absence from the State was not a relevant factor.

Mistake had not been raised.  The Review Officer found that there was no reasonable cause for the failure to make the claim within the prescribed period, not being satisfied that the worker had made appropriate efforts to pursue her claim.  In that context the Review Officer referred to the failure to call any evidence from the worker’s solicitors.

Thus, none of the matters identified in section 52(3)(b) had been established by the worker.

The Tribunal’s decision

The Tribunal found (I will return in due course to a submission about this) that the employer had suffered substantial prejudice.  Once again, the basis of the finding was not spelt out.  The Tribunal referred to the need for a "contemporaneous examination" in dermatitis cases.  The Tribunal referred also to the fact, which appears to be undoubted, that the worker suffered an acute phase of dermatitis late in 1992, after she had ceased employment with the employer.  I take the Tribunal to mean that the passage of time and intervening events would make it difficult for a specialist to express a confident opinion about the link between the employment and the worker’s condition.  I take the Tribunal to mean, also, that the occurrence of an acute phase after the worker ceased employment with the employer clouded the issue, and that difficulty in investigating the causes of that acute phase put the employer at a disadvantage.

The Tribunal further found that the difficulty in undertaking a retrospective investigation of the events surrounding the worker’s employment amounted to substantial prejudice.

The Tribunal dealt quite briefly with the issues arising under section 52(3)(b).

The Tribunal found that after the worker consulted the first solicitor (without finding when she did so), "... it cannot be said that ignorance of the situation exists":  AB465.  I take this to mean that the worker was not ignorant of her rights and obligations, were she to make a claim.  The Tribunal relied in part on the failure of the worker to call the solicitor.  The Tribunal said that no case was made out of mistake, absence from the State or other reasonable cause.  All of this was dealt with in a few lines.

The nature of the appeal from the Review Officer to the Tribunal

This Court has held on several occasions that, on an appeal from a Review Officer to the Tribunal, the appeal is by way of rehearing on the documents, possibly supplemented by further evidence, is not an appeal of the type in which the matter is simply decided afresh, and that an appeal can succeed only if the Tribunal is satisfied that the decision of the Review Officer was wrong: see Simpson Ltd v Arcipreste (1989) 53 SASR at 13 per Cox J, at 20-23 per Duggan J and at 23 per Mullighan J; Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 83 Doyle CJ.

Precisely what that means in a given case will depend, to some extent, on the circumstances of the case.  In particular, when evidence before the Review Officer is reheard by the Tribunal, or additional evidence is called before the Tribunal (see section 97(4e)), demonstrating error might amount to little more than persuading the Tribunal to come to a different conclusion upon the evidence, then before the Tribunal, that was not before the Review Officer.

But, in my opinion, it is unnecessary to go into those matters here.  It is sufficient to say that I reject the submission that in all appeals to the Tribunal the appeal is by way of a rehearing afresh.  That submission is inconsistent with the decisions referred to.

In the present case I am satisfied, in any event, that the Tribunal made its own findings of fact on the material before it.  That is what the Deputy President said in his reasons for decision.  He said that he found that there was substantial prejudice in the proper determination of the claim.  If that was his affirmative finding upon the evidence before him, the question of the nature of the appeal does not arise.

Counsel for the worker submitted that the Deputy President had not made any finding at all, but had merely considered whether the findings made by the Review Officer were open to her.  That submission rested entirely upon the fact that, at the conclusion of the paragraph in which the Tribunal dealt with the question of prejudice, the Deputy President said that it was "open" to the Review Officer to make the findings that she had made.  I do not understand that remark to mean anything more than that the Tribunal was not satisfied that the Review Officer had erred, a conclusion which flowed from the Tribunal’s own conclusion that there was substantial prejudice.

I reject the submissions made under this head by counsel for the worker, and I am satisfied that the Tribunal approached the matter on the correct basis.

Substantial prejudice

I reject the submission that it was for the employer to demonstrate that the proper determination of the claim had been substantially prejudiced.

Provisions like those in subsections (1), (2) and (3) of section 52 have long been found in workers compensation legislation in South Australia and elsewhere.  A common feature of such provisions has been a provision making it necessary to make a claim for compensation within a specified time, if the claim or proceedings on the claim are to be maintained, and a further provision to the effect that the want of timely notice or a defect in the notice is not to be a bar if certain things are established.  Prejudice to the employer, ignorance of the worker, mistake by the worker or absence of the worker from the State are commonly matters which, if established, will remove the bar.

In South Australia the earlier provisions to this effect were interpreted as imposing upon the worker the onus of establishing the matter that, if established, removes the bar. In particular, it has been held that the onus rested upon the worker to prove lack of prejudice. The manner in which such provisions were applied was explained by Bray CJ in Parkwynd Private Hospital Ptd Ltd v Wilson (1971) 1 SASR 552 at 558. There, in a judgment with which the other members of the Court agreed, he said:-

"The rule laid down in those cases is that though the original onus of proving lack of prejudice rests on the workman, in the sense that the statute requires a finding or adjudging  that there was no prejudice before the want of notice ceases to be a bar (apart, of course, from the alternative exculpatory matters mentioned in the section) it is not an onus of demonstrating the negative.  If from the evidence it may reasonably be inferred that the employer has not been prejudiced, an evidential onus shifts to him to prove that he has been ... Once the stage is reached when the arbitrator can reasonably infer lack of prejudice the employer must show prejudice from the evidence;  mere conjecture or speculation as to how prejudice might conceivably have arisen will not do ... "

In my opinion the natural meaning of the relevant provisions of section 52 is that the onus rests upon the worker to establish the matters referred to in subparagraph (3)(b).  In doing so, the approach described by Bray CJ should be taken.  In my opinion, the structure of this section points this way.  Subsections (1) and (2) specify the conditions to be met if a claim is to be made.  Subsection (1) is in affirmative terms - the claim must be made within the prescribed period.  Subsection (2) is in negative terms - a claim may not be made unless notice of the disability has been given.  Subsection (3) then refers to the bar to the making of a claim that thus arises.  It provides that the relevant failure is not a bar if the relevant circumstance is established.

In my opinion, the obvious meaning of this is that the person confronted by the bar must establish the matters that will displace the bar.  That person is the worker.

In addition, I can find no significant difference, in this respect, between the provision as it now stands and the provision as it was when considered by Bray CJ.

For the reasons given by Bray CJ, the fact that prejudice in the determination of a claim is a matter that will often be largely within the employer’s knowledge, is not a reason to come to a different conclusion.  Bray CJ has explained how the placing of the onus upon the worker is accommodated in a manner that is both practical and fair.

In the present case counsel appeared to acknowledge that no evidence specifically on the point of prejudice had been adduced before the Review Officer or before the Tribunal.  The only qualification is the very short passage of evidence referred to by me in my summary of the decision by the Review Officer.  That being so, how could one say that the Tribunal erred in law in reaching the conclusion that it did?  In my opinion one could so conclude only if, upon the evidence as it stood, or lack of evidence, the Tribunal should have inferred that the employer had not been prejudiced, and should have concluded from the employer’s failure to adduce evidence of prejudice that the worker had discharged the onus that rested upon her.

I am not able to so conclude.  The Tribunal was entitled to make some use of its own experience, in concluding that a contemporaneous examination was important in cases involving dermatitis.  In addition, the fact that the worker was suffering from an acute phase of dermatitis, some months after her employment with the employer had ceased, was capable of suggesting that there may have been another factor at work.  Counsel for the worker accepted that Dr Hanna, the specialist whom the worker first consulted, had mistakenly believed that at the time of the first consultation in December 1992, the worker was still working at the hospital, and that the acute phase from which she was then suffering was attributable to current employment with the employer.  It was accepted that his evidence about the cause of the worker’s complaint had to be read in light of that mistake.

I reject the submission that, on the limited material before it, the Tribunal was obliged to infer that the determination of the claim was not substantially prejudiced, unless the employer were to adduce specific evidence of prejudice.  In failing to so reason, the Tribunal did not err.  Counsel for the worker relied in particular upon the fact that, as he submitted, there was strong evidence of a causal link between the employment and the worker’s condition, from the worker’s evidence that she suffered dermatitis while working in the ICU and from the unchallenged evidence that the work that she did was a possible cause of the dermatitis.  But the failure to complain to the employer at the time, the failure to complain when resigning, and the flare up of the condition some months after the employment terminated, all cloud the picture.  The worker’s case depended upon proof that her employment with the employer had led to a worsening of her condition, productive of incapacity, as distinct from a series of temporary recurrences of dermatitis, not causing any worsening of the underlying condition.  In my opinion, it is readily understandable that that issue could require a close examination of events during and after the employment, and careful consideration by medical specialists of a number of matters.

I must say that I do not consider that this issue was dealt with particularly satisfactorily before the Review Officer or the Tribunal.  I would have thought that there were matters that could usefully have been explored with the medical specialists and that would have thrown light on the relevant issues.  Be that as it may, in my opinion, the Tribunal did not err in law in coming to the conclusion that it reached on the question of prejudice.

In addition, there is the difficulty that the employer faced in obtaining a reliable history.  That was relied upon by the Tribunal.  The Tribunal found that the passage of time meant that the employer was prejudiced in its ability to test the worker’s history.  I am not sure that that is a finding that I would have made on the evidence, but it is not for us to review that finding.  I am not able to say that that is a finding that was not open to the Tribunal on the evidence.

For those reasons, I would reject the complaint under this head.

I consider that the claim made was rightly regarded as a claim for compensation in respect of the period beginning when the worker resigned in June 1992.  The fact that, by reason of her own conduct, she might be disentitled from claiming weekly payments from that time does not alter that.  The argument that the claim is to be regarded as made in respect of a period beginning at a later time should be rejected.

Ignorance, mistake, absence from the State and other reasonable cause

The worker acknowledged that the onus lay upon her to establish these matters. The issue here is whether one of the matters referred to in the statute occasioned "the failure to make the claim within the prescribed period". It has been held, in relation to comparable legislation, that what must be explained by the worker is the failure to make a claim within the prescribed period, not the failure to make a claim until it was in fact made: see Murray v Baxter (1914) 18 CLR 622; Djukic v Adelaide Stevedoring Company Limited [1960] SASR 253 at 256; G C Singleton & Co Pty Ltd v Lean (1969) 43 ALJR 369; Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32 at 39; Richardson v Dodderidge [1960] Tas SR 25.

When did the prescribed period expire?  The claim was for weekly payments from the worker’s resignation on 6 June 1992.  Accordingly, the prescribed period expired on 6 December 1992.

The Review Officer had made no specific reference to this period.  Her finding was that the worker had an "informed opinion around December 1992".  That might refer to a time after the expiry of the prescribed period.  If, as seems likely, the Review Officer had in mind the time of the worker’s consultation with Dr Hanna, that was on 11 December 1992, also outside the prescribed period.  There is nothing that enables me to conclude with any confidence that the Review Officer considered the true issue, whether the failure to make the claim by 6 December 1992 was occasioned by ignorance of the worker up to that time.

When the issue is put that way the overseas trip (apparently beginning mid to late December) and any other reasonable cause (such as waiting for legal advice), tend to drop out of sight.  The attention given to these matters suggests that the Review Officer in fact was considering the section 52(3)(b) matters in relation to the whole period from the resignation to the making of the claim.  If that is what she did, she was in error.  My conclusion is that the Review Officer did err in this respect, and, as will appear, that the Tribunal made the same error.

Like the Review Officer, the Tribunal made no specific reference to the fact that the prescribed period expired on 6 December 1992.  The Deputy President, in relation to ignorance, made the finding already referred to:  AB465:-

"On the issue of ignorance it cannot be said that ignorance of the situation exists after at least her attendance on Mr Gilchrist.  Mr Gilchrist was the solicitor whom the worker first consulted."

The Deputy President made no reference to the evidence relating to the information given by Dr Hanna to the worker, that her condition was caused by her employment and that she might be entitled to claim workers compensation.

If the finding by the Tribunal relates to an attendance by the worker on Mr Gilchrist after she returned from her overseas trip in 1993, it appears to miss the point, because by then the prescribed period had expired.  The finding might relate to a time in December, before the worker went overseas.  The worker said that she was not sure whether she first consulted her solicitor before she went overseas in December 1992, or after she returned in early March 1993:  AB234.  The evidence on all this was quite uncertain.  On my reading of the transcript it was never put to her that, within the prescribed period, her solicitor informed her that she might have a claim for compensation and should make the claim within the prescribed period.  And, as I have said when considering the reasons of the Review Officer, the information imparted by Dr Hanna was imparted after the expiry of the prescribed period.

The very brief manner in which the Tribunal dealt with the issue of ignorance leaves me quite uncertain whether it considered the right issue.  Normally, that would mean that the appeal should be allowed and the matter be remitted to the Tribunal for further consideration.  It is not for this Court to make the necessary findings of fact.

However, the onus rested upon the worker to show that she did not make a claim by 6 December 1992 due to ignorance.  Should the matter be resolved, in this Court, on the basis that the worker had not discharged that onus before the Tribunal?  It may be that that is the conclusion that should ultimately be reached.  However, as best I can tell, that specific issue was not addressed in submissions before the Review Officer or before the Tribunal.  The matter has not been considered in terms by the Review Officer or by the Tribunal.  And, on the evidence as I read it, it is a nice question whether or not a finding in the worker’s favour should be made.  This is not a case in which the only finding open to the Tribunal is that the worker had not discharged her onus.

It is unfortunate that the matter should have to be referred back to the Tribunal.  However, I consider that it is only in this way that justice can be done.

In relation to mistake, absence from the State or other reasonable cause, the position is more straight forward.  As the Tribunal said, there was no evidence making out a case of mistake.  The relevant absence from the State appears to have been after the expiry of the prescribed period.  The only reasonable cause for not making a claim within the prescribed period appears to have been a possible delay in the provision of legal advice, and on the evidence given there is no basis for a finding that there was such a delay, let alone within the prescribed period.

For those reasons, in my opinion, the appeal should be allowed, but only for the purpose of remitting the matter to the Tribunal for further consideration of the question of whether the failure to make a claim within the prescribed period was occasioned by ignorance of the worker.

Costs

By its order dismissing the appeal, the Tribunal deprived the appellant of the costs of an adjournment that it ordered.  That adjournment was ordered because of what the Deputy President considered to be inadequate notification to the employer of the intention to call oral evidence on appeal to the Tribunal.  The matter was argued before the Tribunal.  The relevant matters appear to have been put in submissions to the Tribunal.  I cannot discern any issue of law in this complaint.  The complaint is that the notice of appeal to the Tribunal gave notice to the employer that the evidence would be called, and that there was no further procedural requirement imposed upon the worker.  There is no indication that the Deputy President was mistaken about that.  He exercised his discretion on the grounds that the worker had acted unreasonably in not giving earlier notice of the extent of the evidence to be led.  That is a matter relating very much to the practice and procedure of the Tribunal, and I am not prepared to say that there is any question of law involved.  In my opinion the appeal on that ground fails.

Conclusion

In my opinion the appeal should be allowed, and the matter remitted to the Tribunal for further consideration of the question whether the failure of the worker to make a claim within the prescribed period was occasioned by ignorance of the worker.  On all other issues, the attack upon the findings of the Tribunal fails.

It remains to mention that the Review Officer found that the worker had not established that her employment by the employer had caused the dermatitis which in turn was the cause of her incapacity.  In other words, the Review Officer was not satisfied that the worker’s employment with the employer had caused any worsening of the worker’s condition.  The Tribunal did not have to come to a conclusion on that matter.  Depending upon the Tribunal’s conclusion on the issue of ignorance, it may be necessary for the Tribunal to consider that issue.

Cox J

In my opinion this appeal should be allowed.  I agree with the reasons of the Chief Justice.

Williams J

I agree.