McPherson v Caroline House Inc

[2000] TASSC 80

[2000] TASSC 80

CITATION:              McPherson v Caroline House Inc & Anor [2000] TASSC 80

PARTIES:  McPHERSON, Colleen
  v
  CAROLINE HOUSE INC

ROYAL & SUN ALLIANCE INSURANCE AUSTRALIA LTD

TITLE OF COURT:               SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 14/2000
DELIVERED ON:                   26 June 2000
DELIVERED AT:  Hobart
HEARING DATES:                26 June 2000
JUDGMENT OF:                   Underwood J

CATCHWORDS:

[Edited edition of reasons for judgment given orally]

REPRESENTATION:

Counsel:
           Appellant:  K A James
           Respondent:  S R Worsley
Solicitors:
           Appellant:  Phillips Taglieri
           Respondent:  Abetz Curtis and Worsley

Judgment Number:  [2000] TASSC 80
Number of Paragraphs:  10

Serial No 80/2000
File No LCA 14/2000

COLLEEN McPHERSON v CAROLINE HOUSE INC
ROYAL & SUN ALLIANCE INSURANCE AUSTRALIA LTD

REASONS FOR JUDGMENT  UNDERWOOD J

(DELIVERED ORALLY)  26 June 2000

1. This is an appeal against a determination of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") made on 17 February 2000 that:

(1)the worker had not notified the employer within seven days after service of the medical report; and

(2)the worker was not in breach of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s85(4)(c).

1. Before the Tribunal there were two issues namely:

(1) had there been compliance with the time prescribed by the Act, s85(4)(b); and

(2) had there been compliance with the requirements of the Act, s85(4)(c)?

1. The Tribunal was asked to determine these two matters as preliminary issues in accordance with the Act, s60A(1). The Tribunal found that there had been compliance with s85(4)(c), but not with the time required by par(b). It is against this latter determination that the appeal is brought.

1. As the Tribunal observed in its reasons for judgment, the issues raised by the reference are within narrow compass.  It was common ground that on 19 May 1999, the appellant's solicitor notified the respondent's insurer that the appellant was not satisfied with the medical report that had been served upon her.  The question before the Tribunal was whether this notification was made not later than seven days after the medical report had been served on the appellant.  The compass of facts was indeed narrow as it was common ground that the medical report was served upon the appellant either on 11 or on 12 May 1999.  Although this was a small matter, evidence with respect to it was given by a considerable number of witnesses over three days.

1. Ground 1 of the notice of appeal contends that error occurred in the Tribunal considering certain facts before considering certain other facts, and in doing so, taking into account the provisions of the Acts Interpretation Act 1931, s31(1) which enacts a presumption with respect to the time of delivery of posted letters. However, this complaint, even if made out, does not, in my view, constitute any error of law. There is no law which provides that the Tribunal must consider facts in any particular order. If the ultimate finding, namely that the medical report was served on the appellant on 12 May, was one that the Tribunal, properly instructed as to the law and acting reasonably, could not have made, then there was error, but not otherwise. How the Tribunal goes about its reasoning process is a matter for it, provided the finding is one that can properly be made.

1. However, ground 2 complains that the finding that the appellant received the medical report on 11 May 1999 was one that no tribunal, acting reasonably and properly instructed as to the law, could have made.  In my view, there is no substance in this ground.  The Tribunal set out the evidence it heard, it set out which parts of that evidence it accepted and which parts of that evidence it did not accept.  The Tribunal gave reasons for accepting the evidence it did accept and such reasoning is unassailable.  The finding that the medical report was received by the appellant on 11 May 1999 and not 12 May 1999 was very clearly one that was open on the evidence, and no error attended its making.

1. Grounds 3 and 4 together refer to a telephone conversation between the appellant's rehabilitation provider, Ms Rose, and a clerk, Mrs Gates, who was apparently in the employ of the respondent employer. This conversation took place on 13 May 1999, well within the seven day time limit prescribed by s85(4)(b). According to a note of it, Mrs Gates asked Ms Rose if the worker would follow Dr Sale's recommendation and Ms Rose said to Mrs Gates, "… [the] worker was seeking an alternative opinion". Together, grounds 3 and 4 complain that the finding that was made with respect to that conversation was not one that was reasonably open to the Tribunal to make. The finding appears at 13 of the Tribunal's reasons for judgment. It is as follows:

"As to 13 May 1999, it is submitted that on that day, in the telephone conversation between Ms Rose and Mrs Gates, notification was given to the employer by Ms Rose again in the capacity of the worker's agent.  The substance of that conversation is noted above and I have very real doubt as to whether it is capable of constituting notification.  However, it is not necessary for me to make a finding upon this as I am not satisfied, for the reasons stated above, that Ms Rose was the worker's agent for the purpose of making notification."

1. It is quite clear, as I put to Ms James, counsel for the appellant, that to be effective any notice of dissatisfaction with a medical report, within the meaning of the Act, s85(4)(b), must be one that is authorised by the appellant. The Tribunal referred to the definition of agency in Bowstead on Agency, which, whilst appropriate, seems to slightly over-complicate the matter.  The simple question is, was there any evidence that the appellant's rehabilitation provider, Ms Rose, had been authorised by the appellant to express to the respondent employer the latter's dissatisfaction with the medical report?  The Tribunal found in fact that there was no such evidence and such finding is one that was plainly open on the evidence.  Indeed, no other finding was reasonably open on the evidence.

1. For those reasons, grounds 1 - 4 inclusive, fail.  Grounds 5 and 6 of the notice of appeal were not pursued and, accordingly, the appeal is dismissed.

1. There will be an order that the appellant pay the respondent's taxed costs of the appeal.  I certify that this was a proper matter for the attendance of counsel.