May Shaw Health Centre Inc v Buzas
[2012] TASSC 76
•14 November 2012
[2012] TASSC 76
COURT: SUPREME COURT OF TASMANIA
CITATION: May Shaw Health Centre Inc v Buzas [2012] TASSC 76
PARTIES: MAY SHAW HEALTH CENTRE INC
v
BUZAS, Jacqueline Betty
FILE NO/S: 411/2012
DETERMINATION
APPEALED FROM: B v May Shaw Health Centre Inc
[2012] TASWRCT 19
DELIVERED ON: 14 November 2012
DELIVERED AT: Hobart
HEARING DATE: 5 September 2012
JUDGMENT OF: Tennent J
CATCHWORDS:
Workers' Compensation – Proceedings to obtain compensation – Preliminary requirements – Notice of injury – Reasons for failure or inaccuracy – Mistake or ignorance
Workers Rehabilitation and Compensation Act 1988 (Tas), ss32, 37.
Wilkins v St Giles Society A80/1995, referred to.
Aust Dig Workers' Compensation [295]
Workers' Compensation – Proceedings to obtain compensation – Appeals, judicial review and stated cases – Question of law – Generally.
Workers Rehabilitation and Compensation Act 1988 (Tas), s63.
Ling v Incat Tasmania Pty Ltd [2000] TASSC 87; Tanase v ACME Engineering (Tas) Pty Ltd[2006] TASSC 100, referred to.
Aust Dig Workers' Compensation [340]
REPRESENTATION:
Counsel:
Appellant: L A Taylor
Respondent: R M Greuber
Solicitors:
Appellant: Page Seager Lawyers
Respondent: Ogilvie Jennings
Judgment Number: [2012] TASSC 76
Number of paragraphs: 41
Serial No 76/2012
File No 411/2012
MAY SHAW HEALTH CENTRE INC (ABN 97 442 336 082) v
JACQUELINE BETTY BUZAS
REASONS FOR JUDGMENT TENNENT J
14 November 2012
Introduction
This is an appeal from a determination made by the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") to the effect that a worker should be excused for her failure to give notice of an injury to her employer as soon as was practicable after an injury at work.
The worker, Jacqueline Betty Buzas ("the worker"), was employed on a casual basis as a community carer by May Shaw Health Centre Inc at Swansea ("the employer"). The worker made a claim for compensation on 31 October 2011, asserting that she suffered an injury to her back and neck as a result of bending over to clean under a bed whilst using a backpack vacuum cleaner. The injury was said to have occurred on 12 October 2011. The worker did not give notice of the injury to the employer until on or about 28 October 2011.
The Workers Rehabilitation and Compensation Act 1988 ("the Act"), s32, deals with notices of injury and claims for compensation. It relevantly provides:
"32 Notice of injury and claim for compensation
(1) Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless –
(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 …"
However, the failure by a worker to give notice may be excused, with the result that the failure does not affect the worker's entitlement to compensation. Section 37(1) relevantly provides:
"37 Effect of failure to give notice of injury, &c
(1) The failure to give notice of injury in accordance with section 32(1)(a) or any defect or inaccuracy in such a notice does not affect the worker's right to claim compensation under this Act if –
(a) the failure or defect or inaccuracy was occasioned by mistake, absence from the State of the worker or other reasonable cause; and
(b) it is found in proceedings relating to the worker's right to claim compensation under this Act that the employer's defence is not prejudiced by reason of the failure."
It was the worker's case before the Tribunal that she did not give notice because she did not believe that, as a casual employee, she was entitled to compensation. That is, she made a mistake as to her entitlements, and her failure to give notice was occasioned by that mistake.
The Tribunal accepted that the worker initially believed the injury would resolve itself and planned to rest it over the days that followed. The worker gave evidence that her condition deteriorated, such that on Saturday, 15 October 2011, she sought treatment for it at the emergency department at the Royal Hobart Hospital. On 18 October 2011, she attended her general practitioner's surgery. She was seen by a locum doctor, in the absence of her usual general practitioner. On 27 October 2011, the worker saw her usual general practitioner who informed her of her entitlement to workers compensation. She then gave notice of injury. It is the worker's case that until this point she believed that she had no entitlement to workers compensation because she was employed on a casual basis. The Tribunal found that the worker did not give notice of her injury as soon as practicable after the occurrence of the injury, but that this delay was occasioned by mistake. It also found that there was no prejudice to the employer arising from this delay, and accordingly determined that the validity of the worker's claim for compensation was not affected. The employer has appealed the determination of the Tribunal on four grounds.
Nature and grounds of appeal
An appeal from a decision of the Tribunal is permitted only "in point of law" (the Act, s63). It follows that a challenge to a finding of fact may not be mounted. However, there are circumstances where an error of law will arise in respect of a finding of fact.
Underwood J ( as he then was) considered the role of this court in relation to questions of fact determined by a tribunal in the case of Ling v Incat Tasmania Pty Ltd[1] and said at par[19]:
"Appeal to this Court is confined to questions of law. It is not for this Court to review findings of fact made by the Tribunal unless those findings are ones that no tribunal, properly instructed as to the law and acting reasonably, could have made. See Mahony v Industrial Registrar of NSW(1987) 8 NSWLR 1 at 3; Cascade Brewery Pty Ltd & Anor v Chambers 76/1992; Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd[1972] Tas SR 41."
[1] [2000] TASSC 87
His Honour dealt with the issue again in Tanase v ACME Engineering (Tas) Pty Ltd[2] where, at par[25], he said:
"In arriving at its conclusion, the Tribunal goes through a number of stages. First, it evaluates any witnesses who gave conflicting evidence and ascertains, or finds, the primary facts. Provided there is some evidence to support the findings of primary fact, no error of law can arise from this evaluation even if the reasoning for the evaluation is wrong. See Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Tracy Village Sports & Social Club v Walker[1992] NTSC 91; (1992) 111 FLR 32 at 37 - 38. Second, the Tribunal draws inferences from the findings of primary facts and again, provided there is evidence to support the drawing of those inferences, no question of law can arise from this process. See Instrumatic Ltd v Supabrase Ltd[1969] 2 All ER 131; Pickett v Selected Joinery Pty Ltd A87/1995."
[2] [2006] TASSC 100
Some of the grounds of appeal in this matter need to be examined to determine whether an error of law has been shown to have occurred, as opposed to there being only a dispute about a factual finding.
Ground 1
The first ground of appeal is in the following terms:
"The Tribunal erred in law in determining that the requirement of the Respondent to give notice of injury as soon as practicable after the occurrence of the injury commenced only once the Respondent was aware that the injury suffered on 12 October had resulted in incapacity."
The Tribunal determined at par[5] that:
"By that time [15 October 2011] the worker was aware that she had suffered an injury in the course of her employment, that this injury had resulted in an incapacity and a requirement for her to seek medical attention. It was subsequent to this realization that the obligation to give notice arose and the failure to do so in the period following that initial medical assessment does, in my view, amount to a failure by the worker to give notice as soon as practicable".
At the end of this passage, there was a reference to a decision of Wright J in Wilkins v St Giles Society[3]. His Honour said about the phrase "as soon as practicable":
"It may be noted however that the requirement of s32(1)(a) is that the notice be given 'as soon as practicable' after the occurrence of the injury and in such circumstances there would be considerable scope for the injured worker to contend in any relevant proceedings that it had not been practicable to give the requisite notice until the injury had manifested symptoms which could reasonably lead to the conclusion that a claim for compensation was possible, or in the case of a disease, that it had progressed sufficiently to enable medical diagnosis."
[3] A80/1995 at 4
It may be inferred from the reference to that case that what the Tribunal meant by the passage above was that it did not consider that it was practicable for the worker to give notice until her injury had "manifested symptoms which could reasonably lead to the conclusion that a claim for compensation was possible", and that that time was at least 15 October.
Counsel for the employer quoted this passage from Wilkins' case in his submissions and did not appear to challenge its correctness. The injury, the worker suffered, occurred on Wednesday, 12 October. She was due to work again on Friday, 14 October, but did not because of the injury. On Saturday, 15 October, she went to the hospital because of the level of pain she was in. She then saw a locum general practitioner on Tuesday, 18 October, and her own general practitioner on 27 October.
It is somewhat difficult to understand why counsel for the employer even argued this ground of appeal. As I understand his submissions, he maintains an error of law as identified occurred. It must follow that, as the worker must have realized by at least Friday, 14 October, not only that she had suffered an injury, but also that she was incapacitated by it, her obligation to give notice arose at the very latest on 14 October, and not by 15 October as the Tribunal found.
It seems clear that what the Tribunal did was apply the principles outlined by Wright J in Wilkin's case to the facts before it. Counsel for the employer has not suggested those principles are wrong. It seems it is the finding of fact which flowed from the application of those principles that counsel now complains about. That finding of fact was open on the evidence.
No error of law has been demonstrated. This ground of appeal should fail.
Ground 2
Ground 2 of the notice of appeal was in the following terms:
"The Tribunal erred in law in determining that the Respondent's belief regarding her entitlement to workers compensation was a reasonable cause or mistake that excused pursuant to s37 of the Act the failure of the Respondent to give notice as soon as practicable of the occurrence of an injury pursuant to s32(1)(a) of the Act."
The Tribunal determined at par[13] that the worker's failure to give notice was occasioned by mistake. That mistake was one relating to her entitlement to compensation. It made no determination by reference to the Act, s37(1), to the effect that the worker's failure to give notice was excused by "other reasonable cause". The argument by reference to this ground of appeal appears to be that the mistake upon which the worker relied to excuse her failure to give notice of injury was a mistake as to her entitlement to compensation. It was not a mistake which related to her obligation to give notice of injury. As a consequence, the mistake she made could not be relied upon for the purpose of excusing her failure to give notice of injury.
For the purpose of this argument, counsel for the employer attempted by his submissions to demonstrate that a notice of injury and a claim for compensation were two distinct and unrelated issues. He submitted that:
· a notice of injury was not given solely because a claim for compensation might arise;
· this was abundantly clear from the fact that the Act, s33, provided for the cause of the injury to be recorded in a notice of injury;
· details of the cause of the injury are required to be repeated in a claim for compensation;
· the only reason for requiring the cause of the injury to appear in a notice is for a reason other than a claim for compensation;
· the reasons why an employer should be given notice were clear. These were listed in par 6.6 of counsel's written submissions.
Counsel also said that, critically, the giving of a notice of injury invokes the operation of the Act, s33A.
No authority was relied upon by counsel for the contentions which appear at the first, second, fourth and fifth bullet points in par[19]. With respect, they are, in my view, simply not supported when the actual provisions of the Act are considered as a whole.
The purpose of the Act is stated to be to:
"… provide for the rehabilitation and compensation of workers in respect of occupational injuries suffered by workers, to promote the prevention of injuries in the workplace, to repeal the Workers' Compensation Act 1927, and for other purposes ..."
The objects of the Act are set out in s2A. That relevantly provides:
"The objects of this Act are to establish a rehabilitation and compensation scheme for workplace injuries that –
(a) provides for the prompt and effective management of workplace injuries in a manner that promotes and assists the return to work of injured workers as soon as possible; and
(b) provides fair and appropriate compensation to workers and their dependants for workplace injuries; and
(c) assists in securing the health, safety and welfare of workers and in reducing the incidence of workplace injuries; and
(d) provides an effective and economical mechanism for resolving disputes relating to the treatment and management of, and compensation in relation to, workplace injuries; and …"
Counsel for the employer submitted that, because of the reference in the purpose of the Act to the prevention of injuries in the workplace and to the same issue in s2A(c), the requirement to give notice of injury assisted with aims and objectives other than simply claims for compensation. It also promoted workplace safety. This, he submitted, was because the Act existed, not in a vacuum, but within a raft of other legislation directed to workplace health and safety. Hence, the giving of a notice of injury was a discrete step, not necessarily related to a claim for compensation. As a consequence, for a mistake to be relied on to excuse a worker's failure to give a notice of injury, that mistake must relate to the notice of injury itself.
Turning to the Act, it is divided into Parts, which deal with different issues. The heading of Pt III is "Entitlement to compensation". That part, in particular s25, makes it clear that an employer is liable to pay compensation to a worker injured in the course of his or her employment "except as is otherwise provided by this Act". Section 25 outlines circumstances where an employer may not be liable to pay compensation. The sections of the Act with which this appeal more specifically deals are contained in Pt IV, which is entitled "Claims for compensation". That is a significant indicator of the subject matter being dealt with. Part IV begins with s32 which is entitled "Notice of injury and claim for compensation". The relevant part of that section appears at par[3].
Section 33 deals with the form of a notice of injury. In s33(1)(d), it provides that, amongst other things, a notice is to contain detail about the cause of the injury in respect of which notice is given. Counsel submitted that, because that same information is required in a claim for compensation, the requirement that it be in the notice supports the contention that the notice of injury is not just for the purpose of a claim for compensation. Section 33A requires an employer, who has been given notice of an injury by a worker, to give that worker a prescribed notice in certain circumstances. The purpose of this provision, it was submitted, was to ensure workers knew their rights to claim compensation. With respect, while the notice required by s33A does give a worker information about claims for compensation, it is a penalty provision, in that a breach of it by an employer leaves that employer open to prosecution and fine. It has no impact on a worker, his or her obligation to give a notice of injury or his or her claim for compensation.
As to the matters set out by counsel for the employer at par 6.6 of his written submissions, none of them arise by reference to either Pt IV generally, or s32 specifically. Further, there is nothing in any part of the Act which requires a worker to give a notice of injury save as a pre-condition to a claim for compensation as set out in s32 and otherwise. There is nothing in the Act which provides for a notice of injury to be used for any purpose other than as a pre-condition to a claim for compensation. There is simply no basis for counsel's contention that the giving of notice of injury and a claim for compensation should be considered as two effectively unrelated steps. In my view, by reference to the provisions of Pt IV, the two steps are inextricably bound. Counsel for the employer has not demonstrated any valid reason why the Tribunal was required to consider the giving of a notice of injury in isolation from the issue of a compensation claim.
Section 32 provides that a worker is not entitled to compensation for an injury unless that worker gives notice as soon as practicable after the occurrence of the relevant injury. Section 37 then provides that the failure to give notice "does not affect the worker's right to claim compensation" in defined circumstances. In this case, the worker believed that, as a casual employee, she had no entitlement to compensation because of a number of factors. There is no real dispute on the facts of this case that the worker did not turn her mind specifically to compliance with s32, as opposed to making a claim for compensation generally.
Section 37 however deals with a failure "occasioned by" mistake. The failure in this case was directly attributable to the worker's mistaken belief that, as a casual employee, she had no entitlement to compensation, and, as such, was, in my view, occasioned by that mistake.
This ground of appeal should fail.
Ground 3
Ground 3 of the notice of appeal is in the following terms:
"The Tribunal erred in law in determining that the Respondent's failure to give notice of injury as soon as practicable was as a result of her belief that notice of injury need only be given when a claim for compensation will or may be made when there was no evidence as to that belief and contrary the evidence of the Respondent was that:
(a)she failed to give notice of the injury because she believed that injury was of insufficient severity to give notice;
(b)that following her change in belief as to the severity of the injury she failed to give notice of the injury."
The ground of appeal attacks what is asserted to be a finding by the Tribunal that the worker's failure to give notice of injury as soon as practicable was as a result of her belief that notice of injury need only be given when a claim for compensation will or may be made. It would seem to me that a preliminary issue arises in respect of this ground, and that is whether the erroneous finding asserted to have been made by the Tribunal was actually made.
In his written submissions, counsel for the employer did not identify where in the Tribunal's reasons this finding appeared. Paragraph 7.1 of the submissions referred to what counsel described as evidence relevant to the determination. Counsel in his oral submissions canvassed evidence of the worker. He then concluded in par7.2 that there was no evidence that the worker had addressed her mind to the question which was relevant to her explanation for her mistake, that is, did she have to complete a notice of injury, or give notice of injury, if she did not intend to claim compensation?
Counsel did not identify in his oral submissions where the impugned finding was.
A careful reading of the Tribunal's reasons shows that no such finding, as asserted in this ground of appeal, was actually made. I accept that, when the worker gave evidence, she did say at one point what is set out in part (a) of the ground of appeal. However, there was no finding to that effect by the Tribunal and it is error by the Tribunal which must be demonstrated.
This ground of appeal should fail.
Ground 4
Ground 4 of the notice of appeal is in the following terms:
"The Tribunal erred in law in determining that the Respondent's excuse that she failed to give notice of injury because of her mistaken belief that she was not entitled to compensation when there was no evidence to support that determination."
The finding by the Tribunal that the worker's excuse for failing to give notice of injury was because of her mistaken belief that she was not entitled to compensation, was a finding of fact. The question raised by this ground of appeal requires the Court to look at whether there was evidence before the Tribunal which supported that finding of fact. If there is, no question of law arises.
The Tribunal had before it evidence from the worker that she did not believe that she was entitled to workers compensation. It also had evidence that, as soon as she became aware that she was entitled to claim, she gave notice of the injury. That evidence in my view entitled the Tribunal to draw the inference that the worker did not give notice because she believed she was not entitled to compensation, and hence conclude that her mistake as to her entitlements occasioned her failure to give notice.
This finding was a finding of fact, and there was evidence to support it or the appropriate inference. No error of law has been demonstrated and this ground must fail.
Outcome of appeal
The appeal is dismissed.
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