Skilled Group Limited v Barker
[2012] TASSC 27
•25 May 2012
[2012] TASSC 27
COURT: SUPREME COURT OF TASMANIA
CITATION: Skilled Group Limited v Barker [2012] TASSC 27
PARTIES: SKILLED GROUP LIMITED
v
BARKER, Aubrey
FILE NO/S: 767/2011
JUDGMENT
APPEALED FROM: B v Skilled Group Limited (Ref No 737/2010) [2011] TASWRCT 31 (8 August 2011)
DELIVERED ON: 25 May 2012
DELIVERED AT: Hobart
HEARING DATE: 28 November 2011
JUDGMENT OF: Tennent J
CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Preliminary requirements – Claims for compensation – Failure to make claim within time – Generally – Mistake or ignorance – Other reasonable cause.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss32 and 38.
Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100; Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139; Murray v Baxter (1914) 18 CLR 622, Garratt v Tooheys Ltd (1949) 23 WCR 80; Telstra Corporation v Roycroft (1997) 77 FCR 358; Leech v Melbourne and Metropolitan Tramways Board [1958] VR 398, referred to.
Aust Dig Workers Compensation [300]
REPRESENTATION:
Counsel:
Appellant: M K Wilkins
Respondent: B R McTaggart
Solicitors:
Appellant: Page Seager
Respondent: HRAC Solicitors
Judgment Number: [2012] TASSC 27
Number of paragraphs: 40
Serial No 27/2012
File No 767/2011
SKILLED GROUP LIMITED v AUBREY BARKER
REASONS FOR JUDGMENT TENNENT J
25 May 2012
Mr Barker, the respondent to this appeal, was, until 31 August 2008, employed by the appellant. His employment then ended. In 2010, he made a claim for compensation asserting that he suffered from industrial deafness as a consequence of exposure to noise during the course of his employment with the appellant.
The Workers Rehabilitation and Compensation Act 1988 ("the Act"), s32(1) and (2), provide:
"(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
(b) a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury, or where the injury results in the death of the worker, within 6 months after the date of the death.
(2) Subsection (1) does not apply to industrial deafness, but proceedings for the recovery under this Act of compensation in respect of industrial deafness are not maintainable unless the claim for compensation is made while the worker is still in the employment of the employer or within 6 months after the termination of that employment."
However, the Act, s38, provides:
"(1) The failure to make a claim for compensation within the period prescribed by section 32(1)(b), section 32(2) or section 32(2A) does not affect the validity of the claim if the failure was occasioned by mistake, absence from the State of the worker, or other reasonable cause.
(2) Without limiting the generality of the expression reasonable cause in subsection (1), that expression includes –
(a) the making of a payment to a worker that he believes to be a payment of compensation under this Act; and
(aa)a failure by the worker's employer to comply with section 33A in relation to the injury to which the worker's claim for compensation relates; and
(b) any representation that is made to a worker that he believes is made by or on behalf of his employer to the effect that compensation under this Act will or will not be payable.
(3) Any dispute relating to the failure of the worker to make a claim for compensation within the period prescribed by section 32(1)(b), section 32(2) or section 32(2A) may be referred by either party to the dispute to the Tribunal for determination."
It is common ground that the respondent did not make a claim for compensation while still employed by the appellant or within six months after his employment was terminated. When he did make the claim, the appellant disputed it. A commissioner of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") determined that there was an arguable case, and the respondent then pursued his claim by making a referral of the dispute to the Tribunal. The commissioner was asked to determine, as a preliminary issue, whether the respondent was precluded from maintaining his claim because of his failure to make it within six months of the termination of his employment. The commissioner determined that the respondent was not so precluded. It is from that decision the appellant now appeals.
The commissioner's reasons
The commissioner's determination appears in pars[5] – [9] of the Tribunal's decision, and is in the following terms:
"5 It was not disputed that the worker concluded his employment on 31 August 2008 and therefore the applicable six month time limit for making a claim for compensation would have expired on or about 28 February 2009. It is clear from the material before me that the worker did not make his claim for compensation within the applicable six month time limit. Accordingly his claim is not maintainable unless the worker can establish that his failure to make the claim for compensation within the prescribed six month time limit was occasioned by 'mistake, absence from the State of the worker, or other reasonable cause.' (S38(1)). There is neither evidence of nor reliance upon a claim that the worker was, during the relevant period, absent from the State. In so far as mistake is concerned, it is submitted on behalf of the worker that his asserted lack of knowledge as to the causative link between his employment and his loss of hearing amounted to a mistake. Given my finding of fact in this regard that submission cannot stand. In so far as mistake generally is concerned, it is clear that the worker was unaware of his right and ability to make a claim for compensation in respect of hearing loss and further, even after he was provided information that such a claim was possible he was not provided any information about applicable time limits.
6 In so far as applicable time limits are concerned his circumstance was one of ignorance rather than mistake. After being advised by those assisting him that he had a possibility of a claim for compensation he was not made aware of any applicable time limits that may have applied to any such claim.
7 However, the other aspect is less clear cut. The worker had a general awareness about workers compensation but he was not aware that hearing loss for an injury was compensable. His belief was that it was merely something that 'happens'. The alternates appear to be: Either was this ignorance of the right to make a claim for hearing loss therefore not a mistake; or alternatively, was it a mistaken belief about the coverage of workers compensation entitlements? Having previously found that the worker was aware of a possible causative link between his hearing loss and his employment, I find that he did nothing in that regard until he received advice following notification via the newspaper advertisement. The reason he did nothing was not because of a lack of knowledge of workers compensation generally, but a mistake as to the extent of the coverage of that workers compensation legislation. This was not mere ignorance. He did have knowledge of the scheme, he was mistaken as to whether or not hearing loss was covered by such a scheme. In my view he applied his mind in that regard and reached the wrong conclusion. I am aware that this is a fine line but note the ratio decidendi in Garrot v Tooeys Ltd (1949) 23 WCR 80 as quoted by Underwood J in Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100 as:
'Held: Mistake means a fault in opinion or judgment, or an unintentional error of conduct: it could include misconception on the requirement of notice or claim. Ignorance is not the same as mistake, the latter conception connotes mental processes revolving round some facts or circumstances and an erroneous belief or act resulting therefrom. In short, there cannot be mistake without some knowledge. Not to know the law simpliciter, not to know the requirement of notice or claim, is insufficient excuse. The mistake contemplated by the statute may be one of law or fact or mixed law and fact. The line between not knowing and being mistaken is finer than the finest gossamer thread.'
8 In any event however I would be satisfied that his failure to make a claim for compensation within the six month time limit was occasioned by reasonable cause. As noted, the applicability of the justification of a mistake is more restrictive than that of reasonable cause. As described by the Full Court in Black v City of South Melbourne (1963) VR 34 at 38;
'The next question is whether there was "reasonable cause" for the failure to give notice. The enquiry here appears to be of a much wider kind, justifying a more liberal attitude. The expression "reasonable cause" appears to us to mean some act or omission?? which operate to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable. In Quinleven v Portland Harbour Trust (1963) VR 25 at page 28 Sholl used these words: "The subsection means to refer to a 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".
9 It would appear likely that the applicant because of his reference to the newspaper advertisement (W2) and contact to the telephone number did, before the expiration of the six month time limit, become aware of the possibility that he may have a claim for compensation in respect of hearing loss. Subsequent to this he failed to make such claim before that time limit expired. In this regard he was reliant upon others to assist him. It is clear from the evidence given that the applicant had little understanding and at one stage no knowledge of the scheme by which he might claim compensation for hearing loss. It was clear from the evidence that the organisation or persons that the worker contacted then took charge of investigating and preparing his claim by arranging hearing tests and his referral to an Ear Nose and Throat specialist. Given the worker's circumstances, it is reasonable that he would rely entirely upon the advice that he was provided by this organisation or people who were purportedly assisting him in developing a claim for compensation. In those circumstances I do not believe that a reasonable person would do other than to rely upon this organisation or persons and I would not expect that person to seek independent or further advice or make further enquiry as to what he needed to do."
Nature and grounds of appeal
The Act, s63, provides that any party aggrieved by a decision of the Tribunal in point of law may appeal that decision to this Court. The appellant has raised four grounds of appeal, each of which asserts an error of law.
Discussion
The respondent left the appellant's employ on 31 August 2008 having not made any claim for compensation in relation to his hearing loss. The Act therefore required him to make any such claim on or before the end of February 2009. He failed to do so. The Act however would excuse that failure if it were found to be due to mistake, absence from the State or other reasonable cause. Absence from the State was not a factor in this case. The mistake or other reasonable cause relied on to excuse the failure must exist during the six month period after employment ceases. It is not relevant that the respondent may have made a mistake or had reasonable cause at some time other than during that period. (See Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100 at par[33].)
The evidence of the respondent, which the Commissioner accepted, was that, at some stage which he estimated to be between November 2008 and February 2009, the respondent saw an advertisement in a newspaper. The advertisement provided as follows:
"$20,845 Payout for Bob Ryan
Have you ever worked at a noisy job? Eg · Boilermaker ·Panel Beater ·Process Worker Builder ·Welder · Labourer · Sheetmetal Worker · Truck/Bus Driver · Machine Operator
Industrial Hearing Services have helped many people just like Bob and you get on average $9,817. We provide FREE hearing tests to people like you who have suffered a Hearing Loss as a result of their work.
HARDWORKING Many hardworking people like you suffer in silence not knowing their rights
COMPENSATION The Tasmanian Government have made laws to compensate those people who have suffered as a way of building a better Australia.
LONG RETIRED Remember it should not matter if you are still working or you left 20 YEARS AGO
Pick up the phone NOW, don't wait any longer call 1300 731 524"
There was no evidence as to the actual date upon which the advertisement appeared in a newspaper.
The respondent said that, after he saw the advertisement, he contacted the telephone number given. He said that, eventually, he was referred to Dr Noyce, a workers compensation certificate was provided, and a claim for compensation made. The respondent said that the people he contacted arranged hearing tests and organized everything, but did not give him any advice about any applicable time limits for making a claim. There was no evidence about when the respondent acted on the advertisement. There was also no evidence as to who placed the advertisement, that is whether it was, for example, a hearing testing organization or perhaps a lawyer.
There were a number of reports put before the Commissioner. They showed that the respondent was examined by Dr Noyce on 17 June 2009. That is well outside the six month period after termination of employment. His first report refers to an enclosed audiogram which I assume was conducted prior to the date of the examination. However there is no such attachment and no evidence as to when the testing which might have produced it was conducted.
The respondent's case in his counsel's opening before the Tribunal was put on the basis that:
·the respondent was aware he had a hearing loss after he ceased work but was not aware of the relationship between his work and the condition, and
·it was not until he saw Dr Noyce that he became aware that his hearing loss was industrial deafness and that he could make a claim.
In closing, the case was put on the basis that:
·the respondent's failure to claim within the relevant period was on the basis of either mistake or reasonable cause,
·the mistake arose as to the cause of the deafness, in that the respondent knew he had deafness but did not know the cause was work related,
·in any event, if a mistake were not found to have been made, then the circumstances of the respondent amounted to reasonable cause.
The Commissioner determined as matters of fact that:
·he was not satisfied that the respondent was unaware that it was exposure to noise in the workplace that was adversely affecting his hearing;
·as a consequence, the respondent's case, insofar as it relied on mistake arising from the lack of knowledge as to the causative link between the hearing loss and work was concerned, could not be maintained;
·the respondent was unaware of his right and ability to make a claim for compensation for hearing loss; and
·once he became aware he could make a claim he was not provided with information about applicable time limits.
The Commissioner then concluded:
·as to applicable time limits, the respondent's situation was one of ignorance and not mistake;
·that the respondent did nothing until the newspaper advertisement not because of a lack of knowledge of workers compensation generally, but as a consequence of a mistake as to the extent of the coverage of workers compensation legislation. He applied his mind and reached the wrong conclusion. That was not ignorance;
·in any event there was reasonable cause because the respondent relied on others to assist him and it was reasonable to rely on their advice.
Ground 1 of the notice of appeal
Ground 1 was as follows:
"1 The Tribunal erred in law in determining that the Respondent's belief that an injury suffered in the course of his employment with the Appellant for hearing loss was not compensable was a mistake for the purposes of s38 of the Workers Rehabilitation and Compensation Act 1988 ('the Act')."
The Commissioner drew a distinction between a lack of knowledge of a right to claim compensation per se and a lack of knowledge of a right to seek compensation for hearing loss. He determined the former was ignorance, but that the latter was a mistake. He determined that this was so, having concluded the respondent applied his mind to the issue and reached the wrong conclusion. The Commissioner acknowledged there was a fine line between the two, but supported his conclusion by reference to the ratio decidendi in Garratt v Tooheys Ltd (1949) 23 WCR 80, quoted by Underwood CJ in Tanase's case at par[34].
Underwood CJ went on in Tanase to refer to other authorities. In par[35] he quoted two passages from the judgment of Dean J in Leech v Melbourne and Metropolitan Tramways Board [1958] VR 398. The first was:
"To make a mistake about a matter a person must apply his mind to the matter and arrive at a wrong result."
As to the second, Underwood CJ said that, when Dean J held that the applicant's ignorance of the statutory requirement to give notice did not amount to reasonable cause, Dean J said:
"Apart from authority, I should have thought that it was not reasonable for a person who considers that he has a claim against another to abstain from finding out the provisions of the Acts of Parliament affecting his claim or obtaining legal advice for many months after his cause of action arose."
Counsel for the appellant also referred to a decision of North J in the Federal Court in Telstra Corporation v Roycroft (1997) 77 FCR 358. In that case the worker was retired from Telstra on 26 April 1979 on the basis of obsessive compulsive neurosis and alcoholism. He made a claim for compensation on 11 August 1989. He relied on having made a mistake for his failure to claim within time. The mistake identified was his mistaken belief that he had to have an accident at work to create a potential claim for compensation. North J said at 364:
"The authorities establish the following propositions:
1 A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons[1911] 1 KB 982.
2 A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors[1989] FCA 78; (1989) 86 ALR 247.
3 A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission(1936) 37 SR (NSW) 109.
4 It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim."
His Honour said further at 367:
"As these authorities show, there is a thin line between 'mistake' and 'ignorance'. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence, as Keely J pointed out in Connors."
In Roycroft, the court determined, after a consideration of the evidence, that the worker held a belief, genuinely held, that only persons who suffered an accident at work were entitled to compensation. The worker in that case had some working knowledge of the relevant Act. That is, the worker had applied his mind to the issue, and come up with the wrong result. In those circumstances, the court determined the worker had made a mistake.
In the present case, the commissioner concluded at par[7] that the respondent had a general awareness about workers compensation but he was not aware that hearing loss was a compensable injury. His belief was that hearing loss was something that just happened. The commissioner found this constituted a mistake because it amounted to a mistake as to the extent of workers compensation coverage. He concluded the respondent applied his mind to the issue and reached a wrong conclusion.
In his evidence-in-chief the respondent said that, while he was aware of his hearing loss in early 2009, he did not know the cause of it. He then gave somewhat confusing evidence about when he first knew of the condition of industrial deafness or that his hearing loss might amount to compensable loss. He was led through this evidence by his counsel and, from the transcript, seems to have been prepared to agree to whatever she put to him. He firstly agreed that he first became aware that there was some sort of condition in around about early 2009. The respondent was then shown the newspaper advertisement, and said that that was the first time he was aware that there was such a thing as some sort of compensation. There followed some questions about Dr Noyce's examination and the certificate which issued some months later. The examination by Dr Noyce was on 17 June 2009, while the certificate was not issued until 1 March 2010. It was not entirely clear from the respondent's evidence whether he was saying it was when he saw Dr Noyce or when the certificate issued that he had any knowledge that his hearing loss was caused by work, or that he had a compensable condition known as industrial deafness.
The respondent was then cross-examined. The following exchange occurred:
"And you'd agree with me that thats – if you suffer and injury or a disease of something like that through your work you can get compensation?...........Yeah, I can, yeah, I mean if you injure or lose a finger or a toe or something but I didn’t realise that hearing loss was a part of injury because I thought it was just a thing that happened.
Okay………..And I didn't, I wasn't aware until I read that thing in the paper.
Would you agree with this. You might not have realised you could get compensation but you accepted that your noisy work over that period with Skilled was causing your hearing loss?...........At that stage I did, yes, yes."
In re-examination, the respondent said he was not aware about any possible compensation until he saw the advertisement.
The issue raised in respect of this ground of appeal as being an error of law is that there was no evidence upon which the Commissioner could have based his conclusion that at the relevant time the respondent held a belief that his hearing loss was not compensable and this amounted to a mistake. Hence there was an error of law. An error of law will occur when no evidence exists of a primary fact (see Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139 at 151).
As I have already said, any mistake to be relied on must occur within the six month period after termination of employment. There must be evidence from which the Tribunal can conclude that any mistake relied upon occurred within that period. The commissioner said he was not satisfied that the respondent was unaware that exposure to noise in the workplace was adversely affecting his hearing. As a consequence, he was not prepared to accept any submission that the respondent's lack of awareness as to the causative link between his noisy workplace and hearing loss might amount to a mistake. However, he did find that the respondent's lack of awareness that his hearing loss was compensable was a mistake. He did so on the basis it amounted to a lack of awareness that a particular condition was compensable and that the respondent had applied his mind to that issue and reached the wrong conclusion.
It is the appellant's case that there was no evidence to support a conclusion that the respondent applied his mind to that issue. There is no doubt that, at no time, did the respondent actually say in his evidence that while he was at work, or in the six months after he left, he thought about the possibility of making a claim for his hearing loss but believed that he could not. The commissioner clearly believed the respondent knew then that there was a connection between the hearing loss and his employment. The respondent acknowledged that when he was working he knew what workers compensation was. However he went on to say about his knowledge of compensation that while he knew that if a worker injured himself or lost a toe or finger or something he could get compensation but he did not realise that hearing loss was a part of injury. He thought it was something that just happened.
While the respondent did not give direct evidence of having actually considered the possibility of compensation for hearing loss at some stage during the relevant period, the commissioner was entitled to draw an inference about the matter. The evidence of the respondent that I referred to in the preceding paragraph is evidence from which the commissioner could infer the respondent had indeed, during the relevant time, considered the issue and reached an incorrect conclusion. In the circumstances ground 1 should fail.
Ground 2 of the notice of appeal
Ground 2 was as follows:
"2 The Tribunal erred in law in determining that the Respondent's mistake in believing that an injury suffered in the course of his employment with the Appellant for hearing loss was not compensable was a mistake for the purposes of s38 of the Act was the reason for his failure to make a claim for compensation as required by s32(2) of the Act as such mistake if it existed did not operate for the entirety of the period determined by the Tribunal to be relevant."
This ground of appeal draws attention to the need for any mistake found to have occurred, and to be the cause of any failure to claim, to operate for the entirety of the relevant six month period. The commissioner said at par[9] that it appeared likely that the respondent became aware before the end of the six month period that he might make a claim for hearing loss. If that is accepted, then at the time at which he acquired that awareness, any mistake ceased to benefit him. He would in the circumstances have to rely on being able to establish "other reasonable cause" for the balance of the period. Counsel for the respondent submitted, in reliance upon some remarks of the majority in Murray v Baxter (1914) 18 CLR 622 at 629, that once a mistake is established no further question of reasonableness arises. The remarks relied upon were not specifically identified. However I take them to be the following:
"The example stated by Sir George Jessel M R in Eaglesfield v Marquis of Londonderry shows how facts and law are sometimes inextricably mingled. The present instance also exemplifies it. Being a mistake of fact or mixed law and fact, which for this purpose is the same thing, no further question of reasonableness arises. A mistake once established is itself an excuse for the failure to commence proceedings within the prescribed time. So when there is absence from New South Wales. Absence once established as a fact, there is no issue as to reasonableness. The Statute assumes these two circumstances to be reasonable cause. It is only when neither mistake — to which the failure is truly attributable — nor absence can be proved, that some 'other reasonable cause' has to be shown."
With respect, the High Court was there dealing with an entirely different set of circumstances. In particular it was not one where the mistake said to have been the cause of the failure was no longer in play at the end of the relevant limitation period. Further, the comments were directed towards the issue of the reasonableness of any mistake. That is not the issue raised by this ground of appeal.
Counsel for the appellant did raise the possibility that, if the respondent did not see the advertisement until after the end of February, he could then only rely on mistake in any event. The only evidence about when the respondent saw the advertisement was that it was some time either during or in the few months prior to February 2009. Either way, on the respondent's evidence he knew of the possibility of hearing loss being a compensable loss prior to the end of February 2009. Therefore, whether it be for a short or long period, any reliance upon mistake ceased to exist from the date he acquired that knowledge.
Therefore, insofar as the commissioner reached a conclusion that the respondent was entitled to rely on a mistake as he identified it for the whole of the six month period, he made an error because there was no factual basis for such a finding. This ground of appeal should therefore succeed.
Grounds 3 and 4 of the notice of appeal
These grounds of appeal were as follows:
"3 The Tribunal erred in law in determining that the Respondent's failure to make a claim for compensation within the prescribed period was as a result of other reasonable cause in that the Respondent relied upon other persons to assist him when there was no or no sufficient evidence to support such a finding as to such reliance within the 6 months following the termination of the Respondent's employment.
4 The Tribunal erred in law in determining that the Respondent's failure to make a claim for compensation within the prescribed period was as a result of other reasonable cause because the Respondent relied upon other persons to assist him when there was no evidence or no sufficient evidence as to what those persons did within the 6 months following the termination of the Respondent's employment and hence no evidence as to the reasonableness of the Respondent's conduct."
These grounds may conveniently be dealt with together. They both deal with the finding made by the commissioner to the effect that the respondent had established that his failure to make a claim within time was due to some other reasonable cause. One challenges the lack of evidence to support a finding that the respondent relied on others to assist him, and the other challenges the lack of evidence as to what these others actually did within the six month period, and hence the reasonableness of the respondent's conduct. The relevant findings appear in par[9] of the commissioner's reasons which I have already set out at par[5].
Counsel for the appellant challenges the commissioner's finding in the opening sentence of par[9] of his reasons on the basis there was no evidence to support it. In his written submissions he detailed certain evidence in cls 7.1 and 7.2. With respect, counsel did not identify all relevant parts of the respondent's evidence. I have made reference to this evidence in par[22]. As I indicated there the respondent gave somewhat confusing evidence about the time of his awareness. He did however say that he became aware that there was such a thing as compensation (I infer for hearing loss) as a consequence of the advertisement (See Appeal Book 23 lines41-44). While his awareness arose from his reading of the newspaper advertisement, there was no evidence as to when he made any telephone call in response to it, and certainly no evidence upon which any finding could be made that he made that call prior to the end of February 2009.
There was in the circumstances no evidence upon which the commissioner could base a finding that, prior to the end of February 2009, the respondent relied upon others to assist him, and hence a conclusion that to do so provided other reasonable cause.
The commissioner concluded further that it was reasonable for the respondent to have relied upon the advice he was provided with by the organisation he contacted, and as a consequence that provided other reasonable cause for his failure to make a claim. However again there was no evidence as to when the respondent contacted the telephone number in the advertisement and no evidence as to what advice, if any, he was actually given by those he contacted. We know that they arranged appointments and that he was not told of any time limits. However there was no evidence about any advice given to the respondent or, if indeed he was given any advice, that he relied upon it. Against that background there was no basis for the commissioner's finding that it was reasonable for the respondent to have relied on advice given and that this reliance caused the failure to make a claim.
Grounds 3 and 4 should therefore succeed.
Outcome
In summary, the respondent was entitled to rely on a mistake as identified in these reasons in respect of ground 1. However, that mistake did not operate for the entirety of the six month period for which it had to operate if the respondent's failure to make a claim within that period is to be excused by reference to the Act, s38. I have determined that the commissioner's findings that other reasonable cause existed to excuse the respondent's failure were not open to him. While any period in respect of which the mistake did not operate is uncertain, given the respondent's uncertainty as to when he saw the advertisement, on his own evidence he saw that advertisement sometime between November 2008 and February 2009. The commissioner's finding was that it was likely the respondent saw the advertisement prior to the end of February. The respondent has therefore not been able to establish that he relied on a mistake which operated for the entirety of the six month period. In those circumstances he does not have a valid claim for compensation.
While this may seem a technicality as far as the respondent is concerned, it is not for this Court to, in effect, remedy deficiencies in the evidence by ignoring the evidence actually given and drawing inferences not reasonably open from that evidence.
The decision which gave rise to this appeal arose from an argument about a preliminary issue. The parties clearly accepted that, had that issue been decided in favour of the appellant, the result would have been that the respondent would have had no valid claim for compensation and his referral to the Tribunal would have been dismissed. Given the success of grounds 2, 3 and 4 on this appeal, the order of the Court is that the respondent's referral to the Tribunal is dismissed.
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