McGowan v Castrum Pty Ltd

[2005] WASCA 198

McGOWAN -v- CASTRUM PTY LTD [2005] WASCA 198

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 198
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:183/2003	Heard:	16 JUNE 2005
Coram:	STEYTLER P WHEELER JA PULLIN JA	Delivered:	21/10/05
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	JOHN HENRY McGOWAN CASTRUM PTY LTD
Catchwords:	Workers' compensation Recurrence of disability Partial incapacity Whether medical certificate certifies incapacity Whether a claim for weekly compensation Whether anticipatory rejection of claim is valid
Legislation:	Workers' Compensation and Injury Management Act 1981 (WA), s 57A, s 84I, s 173
Case References:	Woolcock v Bant & Babel [2005] WASCA 80 Kuligowski v Metrobus (2002) 26 WAR 137 Ministry of Justice v Ralph, unreported; FCt SCt of WA; Library No 940212; 13 April 1994 Motor Trade Association of WA v Bourke, unreported; Workers' Compensation Board; No C29/90; 15 February 1990 Suleski v Sons of Gwalia Ltd [2003] WASCA 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : McGOWAN -v- CASTRUM PTY LTD [2005] WASCA 198 CORAM : STEYTLER P

WHEELER JA
PULLIN JA

HEARD : 16 JUNE 2005 DELIVERED : 21 OCTOBER 2005 FILE NO/S : FUL 183 of 2003 BETWEEN : JOHN HENRY McGOWAN

Appellant

AND

CASTRUM PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : COMPENSATION MAGISTRATE'S COURT

Coram : MS P M HOGAN CM

File No : CM 52 of 2003

Catchwords:

Workers' compensation - Recurrence of disability - Partial incapacity - Whether medical certificate certifies incapacity - Whether a claim for weekly compensation - Whether anticipatory rejection of claim is valid

(Page 2)

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 57A, s 84I, s 173

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr B L Nugawela
Respondent : Mr J A Thomson

Solicitors:

Appellant : CLP Lawyers
Respondent : Jackson McDonald

Case(s) referred to in judgment(s):

Woolcock v Bant & Babel [2005] WASCA 80

Case(s) also cited:

Kuligowski v Metrobus (2002) 26 WAR 137
Ministry of Justice v Ralph, unreported; FCt SCt of WA; Library No 940212; 13 April 1994
Motor Trade Association of WA v Bourke, unreported; Workers' Compensation Board; No C29/90; 15 February 1990
Suleski v Sons of Gwalia Ltd [2003] WASCA 279


(Page 3)

1 STEYTLER P: I agree with Wheeler JA, for the reasons which she has given, that the appeal should be dismissed.

WHEELER JA:

Sections 57A and 84I - Scope

2 This is a case which is concerned with the operation of s 57A of the Workers' Compensation and Injury Management Act 1981 (WA) as the Act is now called. That section is, unfortunately, based upon a number of unarticulated assumptions. It is, in some circumstances, difficult to envisage how it could possibly work. It is in need of review.

3 Before I turn to the factual background to this case, and attempt to apply relevant provisions to this case, it is desirable to set out s 84I and s 57A of the Act, so far as they are relevant, and to mention briefly some of the principal difficulties to which they give rise. Section 84I relevantly provides as follows:

"84I. Requirements for taking proceedings

(1) Proceedings for the recovery under this Act of compensation for a disability are not maintainable unless —


(a) a notice of the occurrence of the disability has been given in writing containing substantially the information required by subsection (2) as soon as practicable after its happening; and

(b) the claim for compensation with respect to such disability has been made within 12 months from the occurrence of the disability or, in case of death, within 12 months from the time of death, [subss (c) and (d) provide, in effect, that failure to make a claim within time, or defects in the notice, do not bar the proceedings in certain circumstances, which are described]


…

(2) Notice in respect of a disability under this Act is to give the name and address of the person disabled, is to state in ordinary language the cause of the disability and the date and place at which the disability occurred, is to include

(Page 4)

such other information, if any, as may be prescribed, and is to be served on the employer, or, if there is more than one employer, upon one of such employers.

(3) The notice may be served by delivering it at, or sending it by post in a registered letter addressed to, the residence or place of business of the person on whom it is to be served."

Section 57A relevantly provides:

"57A. Claims procedure — insured employer

(1) This section applies where —


(a) a claim for compensation by way of weekly payments for total or partial incapacity has been made on an employer in accordance with section 84I(1)(b); and

(b) the worker suffering the disability has served on the employer a certificate signed by a medical practitioner —


(i) in or to the effect of the form prescribed containing substantially the information sought in the form; or

(ii) to the effect that the worker is unfit for work because of a recurrence of a disability in respect of which a certificate as referred to in subparagraph (i) has previously been served,


and the employer is indemnified by a policy of insurance against his liability to pay the compensation claimed.

(2) Where, in the circumstances mentioned in subsection (1), an employer fails to make a claim under and in accordance with his policy of insurance before the expiration of 3 full working days of his insurer after the day on which the circumstances mentioned in subsection (1) arose or, where the making of a claim within that time

(Page 5)

would not be reasonably practicable, as soon as reasonably practicable thereafter, the insurer may, in the Magistrates Court, sue and recover from the employer, as a debt due, any amount that, under the policy of insurance, he is liable to pay by way of indemnity in respect of the first 3 working days for which weekly payments are claimed by the worker.

(3) Upon an employer making a claim as mentioned in subsection (2), the insurer shall, before the expiration of 14 days after the claim was made by the employer —

(a) notify the worker to whom the claim relates and the employer that liability is accepted in respect of the weekly payments claimed;

(b) subject to section 75, notify the employer and the worker that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed, subject to the insurer not being prejudiced in any subsequent proceedings relating to the claim by the reasons stated in the notice; or

(c) notify the Director, the employer and the worker that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection and of the reasons why the decision is not able to be so made,


and that notification shall be in or to the effect of the form prescribed containing substantially the information required.

(3a) If within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made, the insurer has not —

(Page 6)

(a) notified the worker to whom the claim relates, the employer and the Director that liability is accepted in respect of the weekly payments claimed; or

(b) subject to section 75, notified the employer, the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,

the claim by the worker shall be deemed to be disputed.

(4) Where the Director has requested an insurer to do so, the insurer shall cause each notification to the Director under subsection (3)(c) to be accompanied by a means specified by the Director for conveying to the Director, in a machine-readable form so specified, the information contained in the notification.

(5) Where an insurer fails to comply with subsection (3) in respect of a claim for weekly payments under this Act, the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments, but either the employer or the insurer may apply to the Directorate for a determination under subsection (6).

(6) On an application under subsection (5) the Directorate may determine the entitlement that the worker would have but for the operation of subsection (5), and thereupon the entitlement of the worker is as so determined by the Directorate but without affecting his entitlement under subsection (5) in respect of the period before that determination.

(7) An employer shall make the first of the weekly payments as soon as practicable after —

(Page 7)

(a) he is notified that the insurer accepts the claim or the time prescribed by subsection (3) expires without the employer having received any notification as required by that subsection from the insurer; and

(b) the worker has complied with the requirements of section 84I or, on an application made under section 58, the Directorate has ordered the commencement of weekly payments under this subsection notwithstanding that those requirements have not been complied with,

and subsequent weekly payments shall be made on the employer's usual pay days."

4 Turning to s 57A first, its purpose in broad terms appears to be to ensure that there is speedy processing of workers' compensation claims. Subsection (2) provides some incentive for an employer who has received a claim to make a claim on his insurer within three working days wherever possible. Once the employer has made the claim, subs (3) gives the insurer a limited time within which to make a decision. If, for some reason, the decision-making process is unduly prolonged, and the insurer has notified the relevant parties of the difficulty in reaching a decision, a deemed dispute arises pursuant to subs (3)(a). However, where an insurer has had a claim made by an employer and simply fails to respond at all, the worker is, by force of subs (5), "entitled to the weekly payments claimed". Subsection (7) provides that, once the employer is notified that the insurer accepts the claim, or the time prescribed by subs (3) expires (that time commencing upon an employer's making a claim upon the insurer) the employer is required to commence making weekly payments.

5 There are two significant difficulties with this scheme. First, although s 57A provides an incentive for the employer to make a claim expeditiously upon the insurer, there is no requirement to do so and no apparent consequence, in terms of entitlement to payments on the worker's part, which stems from the employer's failure to do so. That is, a worker is entitled to the weekly payments claimed automatically under subs (5) only where an employer has made a claim; an employer is required to commence making payments at a certain time after he has

(Page 8)

made a claim, and a dispute is deemed to arise at the conclusion of a process which commences with the employer making a claim. If the employer does not make the claim, none of these consequences follow. The worker is not able to make the claim directly upon the insurer, except in the limited circumstances set out in s 173; that is, essentially where the employer dies, or ceases to exist, or cannot be found (see Woolcock v Bant & Babel [2005] WASCA 80).

6 Second, subs (5) of s 57A gives the worker in relevant circumstances an entitlement "to the weekly payments claimed". One might be forgiven, reading that subsection, for concluding that there was some ascertainable sum to which the worker will automatically become entitled in the circumstances described. No doubt, that will be so where the relevant claim is one for total incapacity for work. Prescribed forms, to which I will turn in a moment, have a box, the ticking of which enables a medical practitioner to certify that a worker is totally unfit for work and it would normally be completed by certifying total unfitness from a particular date, either to an estimated date in the future or continuing indefinitely. The "payments claimed" would be able to be calculated in accordance with the First Schedule to the Act, with relative ease.

7 The position seems to be different, however, where there is a partial incapacity for work. The "claim" in respect of partial incapacity is, of course, a claim made by way of provision of the forms referred to in s 84I and s 57A. Section 84I(2) requires only general information about the cause, date and place of the disability, together with information prescribed in the form which is contained in the regulations. The information contained in the form is largely directed to details of the cause of the disability (in the sense of the occurrence which led to it), and nothing in that form appears to require any information from which the payments appropriate to be made to a worker who is partially unfit could be calculated. Where there is a recurrence of a disability, there is nothing on the face of s 57A which requires any particular form of medical certificate. Where the disability is not a recurrence, however, the medical certificate prescribed by s 57A(1) contains two boxes which may be relevant. One reads, "Fit for restricted return to work from" and has provision for the medical practitioner to specify the restriction on the number of hours or days worked, or, alternatively, the restrictions which may be imposed upon the duties which the worker is able to carry out. Assuming the form is properly completed, in relation to restricted days or hours, it should be possible to work out by a relatively simple calculation what payments should be made to the worker pursuant to Sch 1.

(Page 9)

8 Against that background, it is desirable to consider the facts of this case.

History

9 The appellant was employed by the respondent to work on a cray boat. In September of 1995, the appellant fell from the cray boat, jammed himself between the wharf and the cray boat, and eventually fell into the water. As a result, the appellant suffered a back injury, which is clearly a disability within the meaning of the Act. I assume that, at that time, there was a claim for workers' compensation, made in proper form, which was accepted. It appears that the appellant thereafter returned to work at some time.

10 It appears that at some time in 1999, the appellant suffered further pain in his back. That was not in the course of his employment.

11 In July 1999, apparently in relation to the same pain, a neurosurgeon, Mr Wong, assessed the appellant and wrote a medical report, dated 26 July. It referred to a "long history of right L5/S1 disc herniation, the first in 1985 and the second in 1996 and the third in 1997". It is to be noted that none of those dates is the date of the accident in 1995, and the relationship, if any, between those events and the 1995 accident is not clear. The report also indicated that the pain from which the appellant suffered in July of 1999 was severe, "so much so he could not stand". In August of 1999, Mr Wong reviewed the appellant and gave a further report. In that report, he stated that in 1996, the appellant had injured himself at work, and described the fall from the cray boat. Looked at in the light of this description, the report of July 1999 may be intended, by referring to 1996, to refer to the same incident. It refers to an operation in 1985 and a "third attack" in 1997. Although that report notes that the appellant is "doing well" and had lost his sciatic pain, it concludes with the sentence, "He has decided, and I do agree with him, that he should not go back cray fishing because of all these recurrences".

12 It appears then, that the two reports, read together, were capable of being understood as stating that the appellant had sustained a recurrence of symptoms, which symptoms resulted in some unstated period of incapacity for work (or at least an incapacity in relation to cray fishing) to which the 1995 disability had contributed. The reports were addressed to Mr G W Thomas of The Mount Medical Centre. They included a "cc SGIO" at the foot. There was, however, no evidence that either of the reports was in fact sent to or received by SGIO, nor was there any evidence that they had been provided to the respondent. It may be that

(Page 10)

there was no evidence of that matter because of the agreement reached before the Review Officer, which I will shortly describe.

13 On 4 August 1999, the appellant completed an SGIO "recurrence of disability" claim form. It is not disputed that SGIO Insurance was the respondent's insurer at the relevant time. Although the form is not a prescribed form, it is a form which contains essentially the information described in s 84I(2). It contains a substantial portion of the detail which the form prescribed for the purposes of s 84I under the regulations would require from the worker, although it does not contain all of the detail which the prescribed form requires of the employer. It may be arguable that the form was sufficiently similar to that prescribed, to attract s 74 of the Interpretation Act1984 (WA), but that issue was not raised in the proceedings below, or before us.

Does s 57A require a claim under s 84I on every occasion?

14 Before us, it was submitted by the appellant that s 57A(1) requires only that a claim for compensation has been made at the time of the original disability, which in this case would have been 1995. It was submitted that in the case of a recurrence, at least where that recurrence itself is not a disability within the meaning of that term in s 5 of the Act, all that a worker suffering from a recurrence needs to do is to serve one or the other of the forms referred to in s 57A(1)(b).

15 The difficulty with this argument, is that a number of the subsections contained in s 57A assume that there has been made a "claim for weekly payments". The only such claim mentioned in s 57A(1), is that referred to in subs (a). That suggests that on each separate occasion when a worker wishes to invoke the operation of s 57A, the worker must first have made a claim in accordance with s 84I(1)(b). Since s 84I(1)(b) requires a claim for compensation to be made within "12 months from the occurrence of the disability", a concept which is difficult to apply in relation to a situation where there is a recurrence, perhaps many years later, of a disability. That consideration suggests that only one s 84I form, at the time of the initial disability, is required.

16 As a matter of policy, both interpretations have their difficulties. Given that certain adverse consequences either to the employer, or to the insurer, or both, may flow from a failure to respond to a claim made pursuant to s 57A within a fairly short time-frame, there are obvious practical difficulties with an interpretation which enables a worker to invoke that provision merely by making available a certificate to the effect that he is unfit for work because of a recurrence of a disability, leaving the

(Page 11)

employer and/or the insurer to find the details of the original notice of disability, which disability may be described only in the most abbreviated way in the medical practitioner's certificate certifying the recurrence. I would, if it were necessary to decide, prefer the view that a form pursuant to s 84I must have been furnished in respect of each period for which the worker seeks to invoke s 57A. However, it is not necessary for present purposes to determine whether, in cases of recurrence, a further claim of the type referred to in s 57A(1)(a) must be served, since it appears to have been assumed below that the form provided to SGIO was adequate compliance with s 57A(1)(a), and that the only question at issue was whether there had been compliance with s 57A(1)(b).

The SGIO letter and first medical certificate

17 It appears that, following the receipt of the recurrence form of 4 August 1999, SGIO gave some consideration to the matter, and on 29 September 1999 wrote to the appellant in the following terms:

"We refer to the recurrence form submitted and note that the recurrence of your disability did not arise in the course of your employment.

Accordingly, in view of the above and that other incidents had occurred prior to and subsequent to the 20/9/95 incident, we are unable to accept liability for the recent recurrence of your disability."

18 On a date which is difficult to decipher, but which the parties accept was probably 14 October 1999, Mr Wong signed a workers' compensation first medical certificate, in the form prescribed for the purpose of s 57A(1)(b). It gave the "date of injury" as September 1995 (the date of the original fall from the cray boat), gave the medical assessment as "re-exacerbation of old injury", and ticked the box "fit for restricted return to work from", filling in the date 1 September 1999. The nature of the restriction was not specified at all. In the space provided to note "other treatment", Mr Wong wrote, "Had the operation to L5/S1 disc on 24.7.99. He is under the care of Dr Francis now".

19 The appellant claims that the failure to reply to the medical certificate constituted a failure to comply with s 57A(3) of the Act, with the result that he was entitled to weekly payments pursuant to s 57A(5).

(Page 12)

Issues before the Review Officer

20 Before the Review Officer, the question was presented as a relatively simple one. The representatives of both the appellant and the respondent agreed that s 57A(3) was not triggered until there was provided both a claim for compensation and a medical certificate stating the relevant information, and they agreed that the first date on which s 57A(3) could be triggered was the date in October upon which the first medical certificate was served (that date being somewhere between 9 and 14 October, so far as the Review Officer could tell) (AB 32 - 33). For present purposes, therefore, the earlier reports of Mr Wong can be put aside entirely. Had any issue been raised with the Review Officer concerning them, it would have been open to the Review Officer to seek information, and, if necessary evidence, about the receipt of those forms by either the employer or the insurer. It is not open for this Court now to speculate about what the result of those inquiries might have been.

21 Before the Review Officer there were two relatively simple issues. The representative of the respondent contended that the letter of 29 September was a response of the type required by s 57A(3) and that it was made before the expiration of 14 days after the claim, since it was made even before a claim as described by s 57A(1) had been made, and in anticipation of such a claim. That submission seems to have been by way of an alternative. The primary submission of the respondent was that the certificate of October 1999 did not certify any incapacity for work.

Review Officer's decision, appeal to Compensation Magistrate

22 The Review Officer suggested, shortly prior to considering the content of the first medical certificate that, since there had been no response to that certificate, if the certificate did satisfy s 57A(1), then it was "blindingly obvious" that the insurer was in breach of s 57A(3). Having then heard further submissions in relation to the certificate, he held that it did not certify incapacity. He held that certification of the worker as fit for restricted duties from 1 September did not necessarily say anything about the worker's ability to work prior to that date. It is, with respect, not entirely easy to follow what, if anything, he held about the certification of partial incapacity from that date.

23 The appellant appealed from that decision to the Compensation Magistrate's Court on a number of grounds. The first was that the Review Officer should have held that the only requirement of s 57A(1)(b)(ii) was that the medical certificate evidence unfitness for work, rather than requiring that the nature or extent of the unfitness be evidenced in any

(Page 13)

way. Further, it was submitted that the fact that the first medical certificate indicated that "major surgery" was performed on 24 July 1999 and that the appellant was fit for a restricted return from 1 September 1999, left no logical conclusion other than that there had been unfitness between those dates. There was a further ground which appears to me to have added nothing to the two grounds which I have already described.

24 There was also a ground to the effect that the Review Officer should have taken into consideration the report of 5 August 1999, together with the first medical certificate, and read them together. Although the learned Compensation Magistrate dealt with this ground, determining it adversely to the appellant, it is my respectful view that she should not have done so. Although the point seems not to have been taken before her, it seems to me that the appellant should not have been permitted to raise at that time as a ground of appeal a matter which had not been raised before the Review Officer and which could have been the subject of evidence if it had been raised.

25 The most obvious factual issues would have concerned whether SGIO received the report of 5 August 1999 and, if so, when it was received. Although it bears the notation "cc SGIO" at its foot, there was no evidence that it had been sent to SGIO and, since the matter was not in issue before the Review Officer, there was no indication from the SGIO representative as to if the document had been received. That being the case, there was of course nothing to suggest when it might have been received. Further, the insurance brokers' letter to SGIO of 17 August 1999, enclosing the SGIO claim form, advised that "the medical certificate and specialist report will be sent direct to your office by Dr Wong" (emphasis supplied), and made no reference to any reports already sent. That letter may tend to weaken any inference which could otherwise be drawn from the "cc SGIO" notation, and may give rise to an issue as to whether, in the light of its terms, a reasonable insurer would or should have looked for other material to assist in interpreting the medical certificate.

26 Some of the grounds of appeal before us submit that the Compensation Magistrate was wrong in failing to read together with the first medical certificate, not only the report of 5 August 1999, but also that of 26 July 1999. The factual issues which I have mentioned in relation to the later report would also arise in respect of the earlier report. I therefore do not consider those grounds, for the reason that the appellant should not now be permitted to raise them.

(Page 14)

27 The Compensation Magistrate held, in relation to the adequacy of the medical certificate, as follows:

"In relation to the first ground of appeal, section 57A(1)(b)(ii) specifically requires that a worker submit a recurrence claim form and a certificate to the effect that the worker is unfit for work. Here the medical certificate was left blank in that section providing for such certification. Whilst an inference might be drawn that the appellant was unfit for work for a period, the harsh penalty resulting from a breach of section 57A(3) should not be visited upon inferential evidence of unfitness for work when the requirement is that a medical practitioner certify the worker to be unfit for work."

Does the first medical certificate certify incapacity?

28 It is conceded, in my view rightly, by the respondent that s 57A should simply be construed according to its terms, without adopting either a beneficial or penal approach (see Woolcock v Bant & Babel at [20] per Steytler P).

29 So far as the period after 1 September 1999 is concerned, it is my view that the certificate does not relevantly certify incapacity. It is true that one might draw, from the ticking of the box relating to "restricted" return to work, an inference that there was some work of which the worker was incapable.

30 However, the purpose of the certificate, under s 57A, is to enable the ascertainment of what are the weekly payments claimed. The expression "the weekly payments claimed", referring back to the claim made in s 57A(1)(a), appears at a number of places in s 57A, including in s 57A(5). It is necessary, before s 57A(5) can be invoked, for it to be possible to ascertain from the medical certificate how those weekly payments are to be calculated. That can only be done where, in a case of partial incapacity, there is some indication of the nature of the incapacity for work (either in terms of a restriction upon the hours which can be worked, or restriction of duty, or both), so as to enable that calculation to be made. As I have noted earlier, the claim which is made pursuant to s 84I, and which is referred to in s 57A(1)(a), does not assist in that task, so the section must contemplate that it is from the medical certificate that one gleans an indication, not of the precise amount of compensation payable by way of weekly payments, but of the manner in which those payments can be calculated.

(Page 15)

31 In relation to the period between 24 July 1999 and 1 September 1999, in my view, the certificate would be adequate if, read fairly and read, if necessary, together with the claim form provided pursuant to s 57A(1)(a), there was a clear certification that, during a defined period in respect of which compensation was claimed, the worker was totally unfit for work. However, in my view, this certificate does not do so. Although it refers to an operation on 24 July 1999, I do not think it can be concluded from that reference alone that the appellant was necessarily totally unfit for work for the entire period from that operation until 1 September 1999, at which time he was said to be fit for restricted return to work. One might draw that inference if it were clear from the certificate that the doctor signing it had been the person performing the operation and had had the care of the worker since that date. However, it is not clear from the certificate whether Mr Wong has any personal knowledge of the operation, or what dealings, if any, apart from the consultation which led to the signing of the certificate, he had with the worker. It may be equally inferred from the certificate that he had no particular knowledge of what had occurred between July and 1 September, and was able, from his care of the worker, to certify only in relation to his capacity as from September 1999. Where, read fairly, there is an ambiguity in the certificate, in my view, it cannot be relied upon to found any automatic entitlement to payments in respect of total incapacity.

"Anticipatory" compliance with s 57A(3)

32 I would add that, even if I were of the view that the certificate did certify incapacity in respect of any period, it would nevertheless be my view that the insurer had complied with s 57A(3). Although there was no notice of contention in respect of this issue, both counsel before us dealt with the question of whether it was necessary for the insurer, pursuant to s 57A(3), to provide the relevant notice during the period commencing with receipt of both documents referred to in s 57A(1), and ending 14 days thereafter. Given that the purpose of the section is to ensure that a speedy decision is made by the insurer about the worker's claim, I see no reason for reading it in that way. Rather, provided the notice is given at a date no later than the expiry of 14 days from the claim made upon the insurer, the insurer will have complied with s 57A(3). If, as in the present case, the insurer receives advance notice that a claim may be made, and indicates in advance of the claim that liability will be disputed, the requirements of that section will, in my view, have been fulfilled.

33 I would therefore dismiss this appeal.

(Page 16)

34 PULLIN JA: I agree with Wheeler JA and having nothing to add.