Nicholls v The Professional Pest Controllers Pty Ltd
[2025] NSWPIC 427
•25 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Nicholls v The Professional Pest Controllers Pty Ltd [2025] NSWPIC 427 |
| APPLICANT: | Glenn Nicholls |
| RESPONDENT: | The Professional Pest Controllers Pty Ltd |
| MEMBER: | Adam Halstead |
| DATE OF DECISION: | 25 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for lump sum compensation pursuant to section 66 of the 1987 Act; cervical spine injury undisputed; degree of whole person impairment agreed; late notice of injury; section 254 of the 1998 Act; notice where worker is also director of employer company; knowledge of worker as director relevant to notice; notice requirements and special circumstances provisions considered; late claim for compensation made more than three years after injury; section 261 of the 1998 Act; serious and permanent disablement agreed; whether ignorance or other reasonable cause for late claim; Held – special circumstances for late notice present; exception to claim within six-month time limit not established; failure to claim within that period a bar to recovery; award for the respondent. |
| DETERMINATIONS MADE: | The Personal Injury Commission determines: 1. The applicant’s claim for compensation was made more than six months after the date of injury and an exception to the bar to recovery has not been established. 2. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Glenn Nicholls, was at all relevant times the working director of the respondent, The Professional Pest Controllers Pty Ltd, where he performed duties as pest controller. A neck (cervical spine) injury occurred on 20 May 2020 after the applicant fell, slid down an embankment and collided with a wall. He was subsequently treated for the injury, including by surgery on 30 December 2020. A claim for lump sum compensation was submitted by the applicant on 3 December 2024 in relation to the neck injury. The claim is disputed by the respondent on the basis it was not made within the statutory period, and that notice of the neck injury was not given at the relevant time. The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 15 May 2025 to commence these proceedings.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
A preliminary conference occurred on 18 June 2025, when the matter was referred for conciliation conference and arbitration hearing. The Commission convened for arbitration on 17 July 2025. Ms Grotte of counsel, instructed by Mr Covic of Walker Law Group solicitors, appeared for the applicant, who was also present. The respondent was represented by Mr Stockley of counsel, instructed by Mr Glavinceski of Hicksons Lawyers, and a delegate from its insurer was present.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
The issues that remain in dispute and require determination relate to the time of notice and claim for the purposes of the by the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), specifically whether:
(a) the applicant provided notice of injury within the period required by s 254 of the 1998 Act, and
(b) the applicant submitted a claim for compensation within the period provided by
s 261 of the 1998 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission, without objection, and considered in making this determination:
(a) ARD and attached documents of 272 pages, and
(b) Reply lodged by the respondent with a one-page index attached (Reply).
There was no application to call oral evidence or cross-examine any witness at the hearing.
CONSIDERATION, FINDINGS AND REASONS
It is undisputed the applicant was injured at work on 20 May 2020 and that he suffers whole person impairment because of the injury at 19% for the purposes of s 66 of the Workers Compensation Act 1987 (the 1987 Act). It must however first be determined whether either ss 254 or 261 of the 1998 Act are a bar to recovery of compensation for the injury.
Notice
A threshold issue is whether the applicant gave notice of his neck injury in accordance with s 254 of the 1998 Act, which provides that an injured worker must give notice of injury to the employer “as soon as possible after the injury happened”. He contends to having done so, which is disputed by the respondent.
Consideration of s 254 is a two-step process. First, it must be determined whether the applicant (an injured worker) gave notice to the respondent (his employer at the time of injury) “as soon as possible after the injury happened and before the worker has voluntarily left the employment” (s 254(1)). If such notice was given, then compensation may be recovered (at least for the purposes of the notice requirement).
The second step becomes relevant if notice was not given as required by s 254(1). Where notice did not occur, then s 254(2) provides such failure is “not a bar to the recovery of compensation” if “there are special circumstances”, which are listed at s 254(3).
The applicant claims notice was given and, if it were not found to have been given, then there were special circumstances according to any of s 254(3)(a), (b) or (c).
The respondent submitted that although s 254(1) does not stipulate a specific time within which notice of injury must be given, the first notice given by the applicant of the
20 May 2020 injury would have been that when the claim was submitted by his solicitor on
3 December 2024. It was asserted that does not comply with the notice requirement of “as soon as possible after the injury happened” and in any case that notice was given to the insurer scheme agent rather than the employer (respondent). The respondent also referred to the provisions for notice as contained at s 255 of the 1998 Act that require written or oral notice with the particulars specified in that section.It was further submitted by the respondent that there must be some formality or other procedure to satisfy s 255 and it is not sufficient for the applicant to rely on his own knowledge as a director of the respondent to meet the requirement. The applicant must have known there was an obligation to record injuries according to the respondent, which was apparently reference to the register of injuries provision at s 256 of the 1998 Act.
It is the applicant’s evidence that he was at the relevant time “the working director of the company”.[1] The “company” being the respondent, The Professional Pest Controllers Pty Ltd. It is unclear whether the applicant was the sole director of the company, but it would appear he was given his reference to being “the working director”. As an artificial entity, a company acts and operates through its directors (and authorised agents such as employees). The control and management of a company is exercised by its directors. It is an accepted principle of company law that notice for matters affecting a company may be given to it through a director.[2]
[1] ARD p 1 at [9].
[2] See for example s 109X(1)(b) of the Corporations Act 2001 (Cth).
As a director of the respondent, once the applicant had knowledge of his injury on
20 May 2020, he also had knowledge of the injury in his capacity as an officer of the company.[3] The respondent’s counsel submitted that it would have been insufficient for the applicant to have simply “given notice to himself” to comply with the notice requirements at ss 254 and 255 of the 1998 Act. In circumstances where compliance with s 256 is not mandatory, that is, an injured worker is not compelled to make an entry in a register of injuries, but they “may”, it is accepted the applicant could have done precisely that; informed himself (orally or in writing) as a director. What he did with the notice thereafter in the capacity as director is not a matter that needs to be further considered from the position of the notifying worker. The notification process where a person is both the worker and director of the employer may seem unusual, but it is what is provided in ss 254 and 255.[3] Hamilton v Whitehead [1988] HCA 65 at [13] – [14] (Hamilton).
A submission to the effect that he gave notice to himself was made on behalf of the applicant. However, there is no evidence to support that submission in his statement evidence. While I am satisfied the applicant in his role as a director of the respondent was aware of the injury, there is no evidence of notice in the manner required by s 255. The first step, regarding notice, is therefore not established. Perhaps an inference could be drawn, but for the reason following, it is unnecessary to do so.
There is evidence of special circumstances for the purposes of s 254(3)(c) of the 1998 Act. The respondent “had knowledge of the injury from any source at or about the time when the injury happened” because its director (the applicant) knew of the incident as soon as it happened. Once its director had knowledge of a matter of such significance, the company (respondent) did as well: Hamilton.[4] Given the exception at s 254(3)(c) can be established, the applicant is not barred from recovering compensation due to failing to provide notice in accordance with s 255; statutory special circumstances were present. Whether the respondent may have then recorded, used or passed on that information is a matter for the respondent and its insurer to resolve, not one that is relevant for further consideration in these proceedings.
[4] Ibid.
Claim
Section 261 of the 1998 Act requires a claim for compensation to be made within six months after the date of injury. The six-month limit can be extended to three years if the failure to make a claim “was occasioned by ignorance, mistake, absence from the State or other reasonable cause”.[5] He claims there was “ignorance” or “other reasonable cause” relevant to the delay.
[5] Section 261(4) of the 1998 Act.
The applicant’s claim was made on 3 December 2024, which was beyond even the extended three-year period provided by s 261(4)(a). Section 261(4)(b) provides that in such circumstances, failure to make a claim within the required period is not a bar to the recovery of compensation if the claim is also in respect of an injury resulting in the “serious and permanent disablement of a worker”. Although extensive submissions were made on this issue, the respondent conceded the applicant’s impairment is of that nature. The only issues to be determined therefore relate to “ignorance” and “other reasonable cause”.
The applicant has the onus of proving, on the balance of probabilities, that his failure to make the claim within the six-month period was due to “ignorance, … or other reasonable cause”.[6] In Gregson v L & MR Dimasi Pty Ltd[7] (Gregson) Burke J said:[8]
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
[6] Absence from New South Wales is not a relevant consideration in this case.
[7] [2000] NSWCC 47.
[8] Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47 At [61] (Gregson).
In Westlake v Sydney Symphony Subscribers Committee,[9] O’Grady DP considered Gregson and said:
“It is my opinion that the Arbitrator’s findings with respect to the Appellant’s knowledge of his hearing difficulties over a period of time do not directly address the question as to ‘ignorance’ of the matters enunciated by Burke J in Gregson.
There is no evidence of any weight before the Commission which addresses the question as to the Appellant’s state of knowledge concerning his rights and obligations under the relevant compensation law at various times since 1978. The onus is upon the Appellant, and such evidence is essential to enable a determination as to his entitlement to be relieved, by reason of ignorance, from the obligation of compliance with the notice provisions. The Appellant has failed to establish such entitlement, and, in those circumstances, I respectfully agree with the Arbitrator’s conclusion that the Appellant is debarred from recovery of compensation by reason of his non-compliance with the relevant provisions concerning notice of injury and making of claim.”[10]
[9] [2009] NSWWCCPD 12 (Westlake).
[10] Westlake v Sydney Symphony Subscribers Committee [2009] NSWWCCPD 12 [65]-[66].
In Burke v Suncorp Staff Pty Ltd[11] Snell DP confirmed a member’s findings that a worker being aware of workers compensation but not pursuing those entitlements was “a different proposition from being ignorant of the existence of those rights”.
[11] [2021] NSWPICPD 6 at [25].
The applicant’s 14 May 2025 statement evidence is that:[12]
“22. My neck was fine and remained so probably until early 2023. I started getting tingling in my left index finger and cracking in my neck. There was reduced range of motion and that’s when the pain really kicked in and also in the left index finger with burning and numbness down the left arm. In early 2023, I started doing physiotherapy twice per week for both my neck and lower back. I also started having hydrotherapy twice a week.
…
30. In relation to the insurer’s denial notice: I didn’t realise that workers compensation claims needed to be made within a certain timeframe. I was not aware of the time limits regarding workers compensation claims getting lodged. I didn’t initially think that the neck was going to be as severe as it was, but then when I came to surgery, the surgeon did a pretty good job and I was able to get back on my feet pretty quickly and move on and so I didn’t bother lodging a workers compensation claim. It was not for a few years after the surgery that the neck started playing up. Then when my solicitors were investigating my lower back injury and proceeding with investigating whole person impairment, they saw my records that I had neck surgery, and I was telling them that my neck was getting worse. They said that I reported to the doctors that I work-related injury to the neck and they asked me if I had made a workers compensation claim for it. I told them that I didn’t, and they said that we should investigate the neck injury, especially as I had a clear work injury and subsequent surgery and that my condition was worsening. The insurer says that I didn’t proceed with the workers compensation claim at the time because it was my own company, but that is not true – it was not a finance thing at all, it was because the surgery did what it supposed to do (at least initially for a few years) and I was able to get back into things pretty quickly after that and I didn’t think that the neck was as bad as what it currently is. I was not aware of the time limits involved with claim lodgement.”
[12] ARD p 3 at [30].
The applicant relies upon two premises to avoid the bar to recovery of compensation imposed by s 261 where a claim has not been made within the six-month time limit; “ignorance” of time limitations and “other reasonable cause” given the significant impact of his later lower back injury as well as the successful nature of the neck surgery (for it seems a limited time). Although submissions were made on these, it is the applicant’s evidence about the claim that requires careful examination.
The respondent’s counsel identified that the applicant did not make a claim following the injury or at the time of neck surgery and there is no explanation in his evidence for not doing so. It was submitted that it is the applicant’s own evidence the neck injury was only raised as potential source of a claim during discussions with his solicitor some years later about his lower back injury. According to the respondent, the applicant, in his statement evidence, does not claim to have been ignorant, or having had no knowledge, of the right to make a workers compensation claim.
I accept these submissions as being consistent with the applicant’s evidence and as being correct. It is evident the applicant had knowledge of workers compensation claims because he was subsequently involved in that process in relation to his lower back injury. The clinical records from the applicant’s treating general practitioner (GP) contain many references to workers compensation (“WC”),[13] including where the applicant obtained certificates of capacity and a copy of email communications from the insurer.[14]
[13] See for example ARD pp 112, 114, 121, 126 and 132.
[14] ARD p 111.
It is accepted that was after his neck injury, but it demonstrates the applicant’s knowledge of workers compensation claims relatively soon after that injury, which occurred less than 10 months before the back injury. This is unsurprising, because the applicant was “the working director of the company” that held the policy of workers compensation insurance. It is reasonable to expect he was responsible for effecting insurance cover. There can be little doubt the applicant would have been aware of the workers compensation system and his ability to make a claim in these circumstances. As was identified by the respondent’s counsel, there is no evidence to explain why a claim was not made in the required period and, when considered with reference to the applicant’s role in the business, that lack of explanation is a matter of significance, Gregson relates.[15]
[15] Gregson (n 8).
Although a submission was made for the applicant that he was in receipt of income protection insurance payments after his neck injury, there is nothing in evidence to support that claim. It might perhaps be inferred that is what happened given the nature of his business and inability to work at the time, presumably resulting in him having no income from work. I doubt it assists his contended ignorance though because it suggests he made a choice at that time to pursue other rights or entitlements in preference to workers compensation, which was almost certainly a decision made within the six-month time limit.
The applicant must unequivocally establish that he was ignorant of his workers compensation rights within the six-month period provided by s 261 of the 1998 Act. His evidence does not do that and is essentially silent on that key requirement. I therefore do not accept the applicant’s failure to make a claim within the required period “was occasioned by ignorance” as allowed by s 261(4).
It was further submitted for the applicant there were other reasonable causes for his failure to make a claim within the requisite period that relates to dealing with the lower back injury, which was said to be his priority at the time, as well as the successful nature of his neck surgery.
The effect of the neck injury is contended to have later worsened, bringing that condition back into focus, that is a “few years after the surgery … the neck started playing up”.[16] Surgery on the applicant’s neck was conducted on 30 December 2020,[17] which was more than six-months after it was injured. The applicant could not have known the outcome and effect of the surgery within the six-month period. The difficulty with the applicant’s evidence of deterioration some years after the surgery, “early 2023” according to his statement,[18] is that there is little or no support for it in the clinical records in evidence. As was submitted by the respondent’s counsel, the applicant’s own evidence is that his claim for compensation arising from the neck injury was pursued only after prompting from his solicitor rather than from a spontaneous complaint due to the injury. It is a valid submission. In any event, that all occurred well after the six-month period and could not have been a factor at the relevant time.
[16] ARD p 3 at [30].
[17] ARD p 2 at [20].
[18] ARD p 2 at [22].
As to whether the applicant being preoccupied with his lower back injury of 5 March 2021,[19] and related treatment can be accepted as the basis for not making a compensation claim in relation to his neck injury within six months, that is, before 20 November 2020, it was clearly not a relevant factor. The lower back injury also occurred well after the six-month claim period and could not be accepted as a reason for the failure to claim in that time.
[19] ARD p 2 at [21].
The applicant’s evidence does not sufficiently address his state of knowledge about his workers compensation rights during the relevant period, that is, within the six months following injury on 20 May 2020. It is more likely than not the applicant was aware of workers compensation rights but decided not to pursue those entitlements (presumably because income protection payments were being received) rather than being ignorant of their existence.
Dealing with another injury to his lower back that occurred later, which was the subject of a workers compensation claim, does not explain why the applicant did not submit a prior similar claim for his neck injury within the required timeframe. It does suggest though that he was aware of the right to make a claim. It is also not possible to accept the positive results from neck surgery as a reason for the failure to claim since that all transpired after the statutory six-month period. Neither of these matters establishes the applicant had some “other reasonable cause” within that period. It is events related to a failure to claim within the six-month period that are relevant for the purposes of s 261(4). The matters referred to by the applicant arose later.
I do not consider the applicant has established to the required standard that he was ignorant about his workers compensation rights or that there was some other reasonable cause for not pursuing those rights. The onus is upon the applicant to prove the state of his knowledge in relation to ignorance, or other reasonable cause for failing to claim within the time limit, for his claim to be accepted outside the statutory six-month period. He has not done that.
SUMMARY
The respondent is taken to have been on notice of the applicant’s neck injury immediately after it occurred. The applicant’s claim for lump sum compensation was made outside the required period and an exception has not been established for a late claim to be accepted. This means that compensation cannot be recovered in relation to the applicant’s claim of
3 December 2024. Accordingly, there is an award for the respondent.
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