Muir-Wilson v State of Tasmania

[2000] TASSC 137

[2000] TASSC 137

CITATION:              Muir-Wilson v State of Tasmania [2000] TASSC 137

PARTIES:  MUIR-WILSON, Frances
  v
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 8/2000
DELIVERED ON:  28 September 2000
DELIVERED AT:  Burnie
HEARING DATES:  5 September 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Claim and delay in making claim - Excuses for delay - Generally.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss32, 37.
Dearing v McGrath 118/1964; Wilkins v St Giles Society A80/1995; McDonald v Co-Operative Motors Ltd A57/1971; Quinlivan v Portland Harbour Trust [1963] VR 25, referred to.
Aust Dig Workers Compensation [135 - 137].

REPRESENTATION:

Counsel:
           Appellant:  C J Bartlett
           Respondent:  P Turner
Solicitors:
           Appellant:  Bartletts
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2000] TASSC 137
Number of Paragraphs:  14

Serial No 137/2000
File No LCA 8/2000

FRANCES MUIR-WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  SLICER J

28 September 2000

1. The appellant claimed compensation for an injury said to have occurred on 24 September 1999, notice of which was given to the employer on 14 October.  The claim has already been the subject of appeal (State of Tasmania v Muir-Wilson [2000] TASSC 25) and the merits have yet to be considered, let alone determined. The claim was rejected by the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") that notice of injury had not been given as soon as practicable.

1. The appellant was employed as a nurse at an institution operated by the respondent on 24 September 1999.  During the course of her duties she assisted in the movement of a patient and experienced pain to the neck.  She did not report the incident.  The following is a précis of events occurring between 24 September and 14 October (the date of notification) which accords with the findings of the Tribunal and which were not (in substance) challenged by the respondent.

1. For the purpose of determination, the Tribunal accepted that there had been an occurrence with the resulting injury on 14 September.  The parties had agreed that the preliminary questions to be determined were whether:

1notice had been given as soon as practicable in accordance with the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s32;

2if not, whether there existed reasonable cause and/or mistake in failure as provided for by the Act, s37.

1. The evidence of the appellant as to her appreciation of the nature and extent of injury relevant to her application was:

24 September:

"I felt a pain in the middle, here, sore.

And did it stay with you? … Yeah, it hurt quite a bit."

25 September - the appellant returned to work and believed:

"I would say that it was probably still aching but not enough for me to find it disabling or …"

26 September:

"I had tingling … pins and fruit tingles I called it, because it was just transient, and it was just like a tickle up my three fingers, those three, the right hand.  That's all I felt, and it'd just come and it'd go, a couple of times.  It was only just - you'd almost have to think, did that happen.  And I - yeah, that's what it was.  It was just a transient tingling.

Okay.  Did the tingling persist for very long or - … No, seconds."

The appellant received no treatment between 24 - 27 September because:

"It didn't get any worse.  It just came two or three times in those next few days.

…

Because I didn't put enough significance on it.  I thought that if I'd hurt my neck it was muscular and it would go.  I knew I was really strong with my lifts and even though patients have cordoned me in the past I've actually been able to cope if I'm sore afterwards.  I didn't find it significant enough to see anyone about it then, no."

30 September - 1 October:

"I would've still had my tingling because I know that persisted on and off, and my neck sore, was aching, but I can't remember it getting drastically worse that week."

1. During that period the appellant mentioned to a work colleague the difficulties she was experiencing.

2 October:

"What is - what was the state of your fingers at that stage? … They tingled that day … And I can remember being sore at the end of that day …"

3 October - 4 October:

These were days rostered off and no relevant questions were asked.

5 - 6 October:

"I can't remember it [the tingling] going away …

The first three fingers I knew when they tingled was carpel tunnel, and I thought perhaps that's what it is.  Perhaps I've actually got carpel tunnel, which isn't an acute thing, this can wait.

The 6th of October I think you worked the morning shift …"

6 - 8 October - sick leave:

" … I started getting really sick at work and I picked up a flu and so I made an appointment.  I felt sick on the 6th and saw the doctor and I actually was in bed for a few days because I had poly myalgia flu."

9 - 13 October - days off.  However, during that period the appellant experienced further problems which she believed related to the original occurrence, stating:

"When I had the flu I just felt really rotten.  I was in bed for a few days, I was aching all over, and I used quite a lot of hot packs because I got sore in my back and my neck and everywhere, but the tingles were still there.  But on the 13th, and the 12th I got - I started to get better from the flu, and I discussed on the 13th with my husband whether I was actually well enough to go back to work on the 14th.  I knew other people had had a week or so off with this thing, but I said I would go back to work.  But what had happened is on the 13th my thumb completely - I got a completely different symptom and my thumb went numb, and that really scared me then.  And that's why I said to Richard that I'd really like to talk to someone at work straight away abut it, as soon as I went back.  And we decided I would go back on the 14th and I would talk to the most senior person there about it."

1. The appellant reported her concerns to a shift co-ordinator on 14 October and it is accepted that notice was given on that day.  She saw her general practitioner on the following Thursday, completed an incident report on 20 October and underwent a CT scan on 24 October.

1. The account of the appellant was corroborated by her husband and supported by medical evidence.

1. The Tribunal rejected the claim of the appellant stating that it was not:

" … persuaded that in the circumstances of this case the worker acted reasonably in not giving notice prior to 14 October 1999.  By any assessment, the worker having suffered an injury with ongoing symptoms over a period of weeks could not have reasonably concluded that her injury was trivial, and that a claim for compensation was unlikely or not possible well before the 14 October 1999.  Given the worker's clear realisation that she suffered an injury to her neck, the continuation of symptoms of pain from the date of injury, and the subsequent development of further symptoms affecting her upper limbs, and the realisation or at least acceptance of the possibility that the injury and symptoms were causally connected, then I am not persuaded that any reasonable cause existed for the worker to wait until the 14 October before giving notice."

1. The Tribunal correctly adopted the test of reasonable cause as stated by Sholl J in Quinlivan v Portland Harbour Trust [1963] VR 25 in which he stated in relation to a comparable provision, at 28:

"I think the subsection means to refer to cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."

1. In the application of that principle, the Tribunal stated, at 5:

"This 'reasonable man' test must be applied in the particular circumstances of each case and must reflect the personal attributes of a reasonable person with the like education, training, experience and knowledge as the worker.  In this case it cannot be ignored that the worker was an experienced nurse and would, I infer, have an understanding of the possible link between a neck injury and neurological symptoms in the arm.  I therefore find it difficult to accept that the worker in those circumstances did not become concerned as to the failure of her symptoms to resolve prior to the 14 October 1999.  I do not accept that this was a case when the worker did not realise she suffered an injury until she sought medical advice.  She clearly knew she had suffered an injury before that time and she was well aware of what symptoms flowed from that injury.  The medical examination and diagnostic tests subsequent to the 14 October 1999 gave precise details of the nature and the extent of the injury, and the fact that an injury was suffered was known by the worker on 26 September notwithstanding her belief was that it was muscular in nature or otherwise."

1. In my opinion, the Tribunal failed to apply that principle to the facts of this case.  The Tribunal was required to consider the circumstances of delay from the perspective of the appellant, Dearing v McGrath 118/1964.  The policy of the legislation is to require notification, but not in respect of every trivial occurrence.

1. At the time of the occurrence, the appellant was not conscious that there might be a more serious consequence.  The concurrence of "time off" and a common, but unrelated, illness masked any appreciation that the symptoms of injury related to the event occurring on 24 September.  The appellant had demonstrated that her belief was that the symptoms given by influenza caused her to direct her mind to recovery rather than notification.  The break in her roster caused her to believe that rest would resolve the problem.  Such a belief was, on the evidence, reasonable.  As Wright J observed in Wilkins v St Giles Society A80/1995, at 4:

"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."

1. A secondary argument advanced by the appellant is that if the failure to give notification was not reasonable, then it occurred as a result of a mistake.  The respondent contended that any mistake must relate to an external event, not a misunderstanding occurring within the mind of an employee.  It is not necessary to determine the appropriate test (McDonald v Co-Operative Motors Ltd A57/1971; Wilkins v St Giles (supra), at 4) since in the circumstances of this case the existence of influenza which caused the appellant to mistake the cause of her symptoms would constitute such an external factor.

Conclusion

1. Grounds 2 and 3 of the notice of appeal claim:

"2That the learned Chief Commissioner erred in law in determining that prior to on or about 14 October 1999 the Appellant:-

a)should have become concerned as to the failure of her injury symptoms to resolve;

b)       should have realised that she suffered an injury that was not trivial;

c)should have held a belief, in the absence of a medical examination and diagnostic tests, that her injury was other than muscular in nature and origin;

and thereby determined that there was no reasonable cause for the failure of the Appellant to give notice of injury in accordance with Section 32(1)(a) of the Act.

3That the learned Chief Commissioner erred in law in determining, without making a specific finding, that the Appellant suffered an injury with ongoing symptoms over a period of weeks and she should have concluded that such an injury was other than slight or trivial and should therefore have given notice of the injury when there was no evidence to support that conclusion."

The grounds are made out and the appeal upheld.  The order of the Tribunal is quashed and it is ordered that the application be remitted to the Tribunal to be determined in accordance with law.