State of Tasmania v Beadle
[2001] TASSC 122
•30 October 2001
[2001] TASSC 122
CITATION: State of Tasmania v Beadle [2001] TASSC 122
PARTIES: STATE OF TASMANIA
v
BEADLE, Ian
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 48/2001
DELIVERED ON: 30 October 2001
DELIVERED AT: Hobart
HEARING DATES: 28, 29 August 2001
JUDGMENT OF: Underwood, Slicer and Evans JJ
CATCHWORDS:
Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of Tribunals, Boards, Commissioners etc - Tasmania - Tribunal's jurisdiction confined to determination of the dispute with respect to the injury specified in the claim for compensation.
Wilkins v St Giles Society A80/1995; Sullivan v The Hobart City Council & Anor [1999] TASSC 101, referred to.
Workers Rehabilitation and Compensation Act1988 (Tas), s42.
Aust Dig Workers Compensation [143]
Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals and stated cases - Other matters - Tasmania - Failure to give an opportunity to be heard on a point in the Tribunal will not result in a rehearing if it would be futile to do so.
Stead v State Government Insurance Commission (1986) 161 CLR 141, applied.
Workers Rehabilitation and Compensation Act1988 (Tas), s57.
Aust Dig Workers Compensation [170]
Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of Tribunals, Boards, Commissioners etc - Tasmania - Amendment of claim for compensation has effect from the date of the claim.
Sneade v Wotherton, Barytes and Lead Mining Company, Limited [1904] 1 KB 295; Warner v Samspon [1959] 1 QB 297, followed.
Workers Rehabilitation and Compensation Act1988 (Tas), s44.
Aust Dig Workers Compensation [143]
REPRESENTATION:
Counsel:
Appellant: T J Ellis SC
Respondent: K A James
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Phillips Taglieri
Judgment Number: [2001] TASSC 122
Number of Paragraphs: 68
Serial No 122/2001
File No FCA 48/2001
STATE OF TASMANIA v IAN BEADLE
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
SLICER J
EVANS J
30 October 2001
Orders of the Court
Appeal allowed.
Order of Blow J quashed and in lieu thereof the order of the Tribunal dismissing the claim for compensation is reinstated.
Serial No 122/2001
File No FCA 48/2001
STATE OF TASMANIA v IAN BEADLE
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
30 October 2001
Blow J made the following orders upon an appeal from orders and determinations made by the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"):
· Appeal upheld.
· The orders of the Tribunal are set aside and in lieu thereof it is ordered that the reference of the appellant be remitted to the learned Chief Commissioner.
· The respondent pay the costs of the appeal.
From those orders the appellant has brought this appeal to the Full Court. It is necessary to set out some non-contentious factual material in order to explain the circumstances that gave rise to the appeal to Blow J.
Background facts
The respondent to this appeal was a police officer. He joined the police force in 1977 and achieved the rank of Inspector in 1994. By all accounts, he was a conscientious and competent police officer. In the course of his duties, the respondent was exposed to violent trauma on a number of occasions. The first time was not long after he had been made a Constable when he attended a motor vehicle accident. There he saw a child with a gear lever that had entered her mouth and come out the side of her head. She was alive and screaming. In the Tribunal, the respondent described an incident that happened in 1989 when he was in charge of the prisoners in the cells at the Hobart Police Station. It appears that one of his prisoners committed suicide while he was in the custody of the respondent. Although the respondent considered that he was in no way to blame for the suicide, having fulfilled all proper checking duties, it appeared to him that the attending pathologist was critical of his conduct. The respondent said this caused him extreme concern. The respondent detailed other distressing events that he had witnessed during the course of his career as a police officer, culminating with exposure to those killed and injured in the tragic shooting at Port Arthur in April 1996. In evidence before the Tribunal, the respondent claimed that he began to suffer from hypertension, headaches, nightmares, indigestion and the like.
In April 1997, whilst acting as Superintendent of the Southern District, the respondent learnt that his ordinary position of Administration Inspector was to be abolished and those officers holding that position were to be reallocated to other duties. There followed a period of uncertainty with respect to the respondent's future and as the length of that period increased, the respondent became more and more unsettled. He began to suffer from blurred vision and headaches.
In September 1997 he consulted his general practitioner, Dr Beechey (now deceased) who diagnosed hypertension. The respondent was referred to a cardiologist, Mr Galligan. As a result of a discussion with Dr Beechey, the respondent made and lodged with his employer a claim for compensation. It was in the appropriate form. The relevant parts of it provided:
| · Date and time the injury or condition was first noticed or identified | 21/08/97 |
| Type of injury or disease, and part of body affected | Hypertension |
| Name of treating doctor | Dr R Beechey |
| Where did the injury or disease occur | Hobart 7000 during normal work |
| What happened | Severe headaches blurred vision due to management practices. |
The claim for compensation was signed by the respondent and dated 19 September 1997. The medical certificate that accompanied the claim for compensation was dated 19 September 1997 and was signed by Dr Beechey. Relevantly, it stated that the respondent presented with "headaches and hypertension" and that the injury or disease was stated to be caused by "work-related stress".
The appellant disputed liability to pay compensation pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s81A(1). In accordance with the rights conferred by the Act, the appellant was examined on 18 November 1997 by Dr Strauss, a medical practitioner nominated by the appellant. In due course, the Tribunal ordered that there was a genuine dispute about liability and compensation was not paid.
The respondent did not then refer the matter to the Tribunal for determination because in November 1997, he was notified that he was to be immediately transferred to the Bellerive CIB, an appointment that the respondent said made him very happy.
However, according to the evidence of the respondent, his symptoms did not improve while he worked at the Bellerive CIB. He said that he still suffered from headaches, nightmares and experienced flashbacks to the trauma he had witnessed. The respondent said that his consumption of alcohol increased markedly, that he became moody and irritable, that he suffered from sexual dysfunction and that his short-term memory was substantially impaired. As a result of these symptoms, the respondent decided that he was not capable of doing his job properly and should retire from the police force.
The respondent resigned from his employment on 30 June 1998 and after a very short holiday, went into his own business running a small café and take-away food shop. It was not financially successful and ultimately ceased trading on 29 June 2000. The respondent said that his symptoms did not abate and Dr Beechey referred him to Dr Sale in May 1999. Dr Sale considered the respondent was unfit for work as a police officer and diagnosed him to be suffering from residual symptoms of a chronic post-traumatic stress disorder or personality change following exposure to traumatic events. On 28 October 1999, Dr Sale issued a medical certificate. It relevantly provided that:
· the provisional diagnosis was "chronic anxiety state";
· the presenting symptoms were "headaches, insomnia, dyspepsia, irritability, subjective tension";
· the worker stated the condition to be caused by "an incident which occurred on ?/89"; and
· the worker stated that the injury or disease occurred under the following circumstances:
"A suicide in police cells - criticized by attending pathologist, aggravated after attending CISD following Port Arthur incident."
The certificate was given to the respondent but he did nothing with it.
On 2 December 1999 the respondent referred to the Tribunal pursuant to the Act, s42, the following:
"… my claim for compensation for determination of the following:
1 My entitlement to payments of weekly compensation for incapacity from 13 May 1999 and ongoing for stress condition arising out of and in the course of my employment and to which my employment contributed to a substantial degree.
2 Section 71 (item 6)(1) impairment.
3 Legal costs with respect to this application."
The proceedings in the Tribunal
The hearing commenced before the learned Chief Commissioner on 13 September 2000. Miss James appeared for the present respondent, then the applicant, and Mr Turner appeared for the present appellant, then the respondent. During the course of her opening address, Miss James said:
"… the condition that the worker suffers from has been variously described as an anxiety or depressive disorder, adjustment disorder and also post-traumatic disorder."
She also said:
"… there is an issue as to notice, whether the claim form lodged has a relationship to the incapacity which is the subject of this referral …"
At the conclusion of the opening, Mr Turner submitted that the claim for compensation that fell for determination was that contained in the document dated 2 December 1999 and was not the certificate of Dr Sale dated 28 October 1999. Mr Turner submitted:
"Accordingly you have in my respectful submission a claim for compensation which is confined to hypertension and conceivably headaches. As a consequence in my respectful submission regardless of the terms of the referral you must consider only evidence concerning hypertension and as I said conceivably headaches, that is the claim for compensation that has been made by the worker in this instance."
Miss James contended that it was inappropriate to confine the claim at that stage of the proceedings. She said it was necessary to hear all the evidence before making any rulings about relevance. The learned Chief Commissioner accepted that proposition and evidence was taken.
Factual and expert opinion evidence was led to the general effect that the respondent was incapacitated for work and that that incapacity was due to a post-traumatic stress disorder or chronic anxiety or adjustment disorder. During the course of this evidence, Mr Turner took repeated objection to admissibility on the grounds of relevance. He repeatedly submitted that the issue for the Tribunal was whether the respondent suffered from the injury of hypertension and possibly headaches. Miss James repeatedly responded with the contention that no ruling should be made until all the evidence had been received and the Tribunal continued to accept this contention.
When the hearing of evidence for the respondent was almost complete, the learned Chief Commissioner said, "What is the issue before the Tribunal to decide?" No satisfactory answer was then forthcoming and the evidence continued, but after the close of the respondent's case, the Tribunal heard submissions with respect to the question that the learned Chief Commissioner had raised. For the appellant Mr Turner contended:
· that the Tribunal was confined to determining whether the respondent suffered the injury described in the claim for compensation dated 19 September 1997, namely hypertension, and if yes, whether he was incapacitated for work as a result of suffering that injury;
· that the Tribunal was not concerned with any incapacity that might have resulted from symptoms of an anxiety disorder because no claim made for compensation had been made with respect to such an injury;
· the words used in the referral to the Tribunal dated 2 December 1999 did not define the issues for the Tribunal's determination; and
· Dr Sale's certificate dated 28 October 1999 was not a claim for compensation within the meaning of the Act, ss34 or 42.
Mr Turner submitted that hypertension and possibly headaches was quite a different injury from post-traumatic stress disorder, chronic anxiety or adjustment disorder, that the latter could not be described as a result of, or an exacerbation of, the former and that as there had been no claim for compensation with respect to post-traumatic stress disorder or chronic anxiety or adjustment disorder, the Tribunal had no jurisdiction to determine whether or not the respondent suffered from such an injury in the circumstances prescribed by the Act, s25.
Miss James submitted that:
· the claim dated 19 September 1997 and Dr Sale's certificate dated 28 October 1999 were both "possible" claims for compensation;
· any post-traumatic stress disorder, chronic anxiety or adjustment disorder was known to the employer to have its origins in hypertension and headaches; and
· the medical certificates that accompanied the claim for compensation dated 19 September 1997 were part of that claim.
The learned Chief Commissioner reserved his decision and on 3 October 2000 made an order:
"Issues to be determined by the Tribunal are confined to the claim for compensation dated September 1997."
In his reasons for that determination, the learned Chief Commissioner correctly held that Dr Sale's certificate dated 28 October 1999 did not amount to a claim for compensation in the circumstances of this case. The respondent does not now contend to the contrary. It follows that the determination of 3 October 2000 must be correct. However, in the course of his reasons for making that determination, the learned Chief Commissioner discussed the evidence that had been led up to that point of time, and made a finding of fact that hypertension and post-traumatic stress disorder or chronic anxiety are "separate diseases with different causes".
The making of this finding of fact was not necessary to determine the question of what issues fell for determination and, as will be seen, the making of that finding of fact became a matter of complaint upon the appeal to Blow J.
After the ruling of 3 October 2000 had been handed down, Mr Turner said that the appellant would not adduce any evidence. Miss James then sought leave to amend the claim for compensation dated 19 September 1997 to refer to "chronic anxiety state, or anxiety condition or similar". Mr Turner opposed the application to amend.
The learned Chief Commissioner reserved his decision and on 30 October 2000, made the following order:
"Application to amend claim for compensation dismissed. Worker's application for benefits based on existing claim for compensation dismissed."
In his reasons for making those determinations, the learned Chief Commissioner applied the findings of fact that he had earlier made and therefrom, correctly concluded that there was no evidence to satisfy him that the respondent's incapacity for work resulted from hypertension and/or headaches.
Proceedings before the learned judge at first instance
The respondent lodged a notice of appeal against the determination of 3 October and the two determinations made on 30 October. The grounds alleged that errors occurred:
1In defining the issue as being the relationship between hypertension and anxiety/post-traumatic stress disorder.
2In determining that in order to succeed, there must be evidence to establish that hypertension was a symptom of post-traumatic stress disorder.
3In failing to consider a finding which was reasonably open that hypertension or headaches in 1997 were caused or substantially caused by chronic anxiety, etc.
4In determining against the weight of evidence that there was no relationship between the injury in September 1997 and the incapacity as certified by Dr Sale.
5In applying a wrong test that the claim for compensation dated 19 September 1997 must be capable of "incorporating" a disease of chronic anxiety state, etc.
6In determining that the incapacity of the worker as certified by Dr Sale was not a question or matter arising in connection with or incidental to a claim for compensation.
7In failing to consider whether the incapacity of the worker as certified by Dr Sale resulted from "an injury".
8In failing to give reasons for certain findings.
9In failing to resolve matters on such evidence as was placed before it, "all parties having been given a reasonable opportunity of being heard, per s57(1) of the Act".
10In failing to take into account relevant factors in the exercise of his discretion to disallow the amendment to the claim for compensation. [The ground details five factors.]
The judgment in the court below
The reasons for judgment of Blow J are not related to specific grounds and I trust I do not do his Honour any disservice if I summarise his conclusions as follows:
(a)In the reasons for the determination of the issues that the Tribunal had to decide, findings of fact were made but counsel for the respondent had not been given an opportunity to be heard with respect to the making of any findings of fact. These findings of fact were that hypertension and stress were caused independently of each other and that the claim for compensation made in September 1997 was not a claim in respect of that injury. His Honour held that this was an error of law in that the learned Chief Commissioner:
"… failed to resolve the matter before the Tribunal 'on such evidence as is placed before it after all parties have been given a reasonable opportunity to be heard' as required by the Act, s57(1)."
…
"It was open to the Tribunal to find each of the following: (a) that the worker was incapacitated by some disease; (b) that he intended his claim to be a claim with respect to the disease that incapacitated him; (c) that he was intending to refer to that disease when he wrote 'hypertension' on his claim form; (d) that he was in fact incapacitated by the stress disorder, and not hypertension; and (e) the misdescription of the incapacitating disease did not relate to information which was neither within the knowledge of, nor reasonably ascertainable by, the respondent or its licensed insurer (if any). In my view, the learned Chief Commissioner was obliged to consider whether or not to make such findings."
(b)The learned Chief Commissioner erred in law in that he failed to consider whether it was open to the Tribunal to conclude that there was a defect, omission or irregularity, within the meaning of the Act, s34(3), in the September 1997 claim for compensation.
(c)With respect to the application to amend, error of law tainted the exercise of the discretion because the learned Chief Commissioner:
"… overlooked one very significant factor, namely that the refusal of the amendment might well have deprived the appellant of an entitlement to compensation in respect of his stress disorder. In my view he erred in law in failing to take that matter into account, as well as in thinking that allowing an amendment would have enabled the appellant to circumvent s32(1)(a)."
The appeal to this Court
Although the Tribunal is obliged by the Act, s49(1), to conduct its proceedings with little formality and technicality, the definition of the issues it has to determine is basic to its work. Preferably this should be done at the earliest opportunity.
Miss James submitted in this Court that the first issue in this case was whether the respondent suffered an injury, viz, any injury at all. If yes, the next issue was whether such injury fell within the provisions of the Act, s25; if yes, whether there had been compliance with the statutory requirements with respect to giving notice of that injury and making a claim for compensation; and finally, if yes, whether incapacity for work resulted from the proved injury.
In my view, that submission runs completely contrary to the scheme of the Act. If it was correct, it would mean that a respondent to a referral would go to a hearing without any advance notice of the case he or she had to meet. In my view, the scheme of the Act is quite clear.
(a)Section 25 provides the basis for liability to pay compensation. That liability depends upon the worker having suffered an injury of the type prescribed by the section.
(b)In the event of such an injury having been suffered, the Act, s32, prohibits entitlement to compensation "for an injury" unless, within the time constraints specified in the section, the worker:
(i) has given "notice of the injury"; and
(ii) has made a "claim for compensation with respect to the injury".
(c) By virtue of the Act, s81(1), an employer who has received "a claim for compensation in relation to an injury" must start making weekly payments as prescribed by the section unless he or she invokes the provisions of ss81AA or 81A.
(d) Section 81AA merely gives an employer time to consider a claim for compensation, but s81A lays down a procedure for disputing liability "to pay compensation by way of weekly payments for an injury referred to in s81(1)" and for disputing liability to pay the cost of benefits "in respect of the injury".
(e) If the Tribunal determines that a dispute raised pursuant to s81A is a genuine dispute, it may order that no payments be made and that is the end of that claim for compensation unless the worker refers it to the Tribunal pursuant to the Act, s42.
(f) Section 42 gives the Tribunal jurisdiction. It provides that what may be referred to it for determination is "a claim for compensation".
The Act makes it clear that liability to pay compensation is confined to identifiable injuries. Were it otherwise, upon receipt of a claim for compensation, an employer would not know whether to dispute liability or not. Were it otherwise the employer would not know if he or she had been given notice in accordance with the Act, and were it otherwise, the employer would find it very difficult to investigate the circumstances of a claim to decide whether it should be disputed or not.
Section 42 makes it equally clear that relevantly, the Tribunal's only jurisdiction is the determination of a claim for compensation. This is clear from the words of the section, irrespective of the terms of the notice of the referral given under that section. Accordingly, in this case, the learned Chief Commissioner was quite correct on 3 October 2000 when he determined that the issue for him was "confined to the claim for compensation dated September 1997". However, Miss James argued that even if this was so, making the finding of fact upon that determination that post-traumatic stress or anxiety was a separate disease from hypertension and had a separate cause, was contrary to natural justice and this tainted the order of dismissal of the claim for compensation on 30 October 2000. I shall return to that argument.
The statute does not require either the notice of injury or the claim for compensation to describe in precise terms the injury suffered. In this respect, the guidance of this Court in Wilkins v St Giles Society A80/1995 is of assistance. In that case, Wright J said with respect to the requirement to give notice of injury that it:
"… need not be stated with the precision of a medical diagnosis but, on the other hand, the essential kind, quality or characteristic of the injury must be disclosed. It will suffice to describe the injury in terms of manifest symptoms so long as the precipitating event is also identified."
See also Sullivan v The Hobart City Council & Anor [1999] TASSC 101.
In the present case the type of injury was identified by the claim form as hypertension, which is of course, elevated blood pressure; and in answer to the question "what happened", the claim states severe headaches, blurred vision due to management practices. The accompanying medical certificate refers to headaches and hypertension caused by work related stress.
Accordingly, the issue for the learned Chief Commissioner was whether the respondent suffered from hypertension and possibly headaches; and if yes, did such injury fall within the parameters prescribed by s25; and if yes, did it result in incapacity for work. If those matters were established the respondent was entitled to compensation, provided there had been compliance with the prerequisites laid down by the Act, s32, as to notice of injury and making the claim.
It seemed to be common ground that in 1997 the worker did suffer from hypertension and perhaps still did so at the time of the hearing before the Tribunal, but all the medical evidence and all the factual evidence led to support the medical opinion evidence was to the effect that any incapacity for work resulted not from hypertension, but from post-traumatic stress disorder and/or chronic anxiety.
At the hearing before this Court, Miss James made it perfectly clear that it was never the respondent's case that there was any incapacity resulting from hypertension. It was the respondent's case in the Tribunal that incapacity resulted from chronic anxiety or post-traumatic stress disorder. In the Tribunal and in the Court below, it was contended on behalf of the respondent that this was a justiciable issue before the Tribunal. For the reasons I have expressed, it was not.
However, the learned judge at first instance found, as I have said, that there was a denial of natural justice by way of a breach of the Act, 57(1), and accordingly the matter was remitted back for rehearing. Although there might have been a breach of the Act, s57(1), in that upon the determination of the issues to be resolved, the Tribunal made a finding of fact that hypertension and post-traumatic stress disorder or chronic anxiety are "separate diseases with different causes" without giving the respondent's counsel an opportunity to be heard with respect to that finding, with great respect to his Honour, I disagree that the matter should therefore be remitted to the Tribunal for a rehearing. There was no suggestion that had the respondent been heard evidence would have been received that was not received. The matter in respect of which the finding of fact was made was well ventilated by both counsel during the course of the hearing in the Tribunal. No issue of credit arose with respect to it.
During the course of the hearing of the appeal before us, it became perfectly clear that even if Miss James had been given every opportunity to address at great length upon the finding of fact that should have been made, her address could not have affected the finding nor the orders and determinations that were made on either that day or on 30 October. Miss James did not contend to the contrary. The Supreme Court Rules 2001, r693(7) provides with respect to an appeal from (inter alia) the Tribunal:
"The Court or judge may make any order with respect to an appeal from an inferior court which may be just for the purpose of ensuring the determination of the merits of the real question in controversy between the parties."
Stead v State Government Insurance Commission (1986) 161 CLR 141 is authority for the proposition that not every departure from the rules of natural justice will result in a new trial being ordered. To obtain such an order, an appellant must show that the denial of natural justice has deprived him or her of the possibility of a successful outcome. The Court said at 145:
"… not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial."
See also Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Livestock Corporation (1990) 96 ALR 153 at 170 - 171; Hamilton v Minister for Immigration, Local Government & Ethnic Affairs (1993) 48 FCR 20 at 38 - 40. It follows from the foregoing, that the application of the findings of fact made on 3 October 2000 to the decision to dismiss the claim made on 30 October was appropriate. To remit the matter to the Tribunal because counsel was not given an opportunity to address it before it found the fact that hypertension and post-traumatic stress disorder or chronic anxiety are "separate diseases with different causes" would be an exercise in futility. Upon the evidence, no other finding of fact was open and Miss James did not contend to the contrary.
The learned judge at first instance said that the learned Chief Commissioner erred in that he did not consider whether or not the provisions of the Act, s34(3) should be applied. In my opinion the provisions of that subsection had no application to this matter. It provides:
"A defect, omission, or irregularity in a claim for compensation or a medical certificate under subsection (1)(b) shall not affect the validity of the claim and the claim shall be dealt with in accordance with this Part unless the defect, omission, or irregularity relates to information which is not within the knowledge of, or reasonably ascertainable by, the employer or his licensed insurer."
There was no suggestion in this case that there was any defect, omission, or irregularity in the claim for compensation or a medical certificate. It was a perfectly valid claim for compensation and a perfectly valid medical certificate. It identified hypertension and possibly headaches as the injury, but there was no evidence which tended to prove that any incapacity for work resulted from that condition. The evidence tended to prove that incapacity for work resulted from a different condition, viz, post-traumatic stress disorder and/or chronic anxiety.
There is no substance in grounds 1 - 7 inclusive and 9 of the notice of appeal from the Tribunal. Ground 8 is a complaint that there was a failure to give reasons for certain findings made by the learned Chief Commissioner, but there is no substance in that ground either and the contrary view was not advanced upon the appeal to this Court.
There remains the complaint that error attended the refusal to permit the respondent to amend the claim for compensation. The proposed amendment was not precisely formulated in the Tribunal but it was, in substance, an application to amend the claim for compensation to specify the injury in accordance with Dr Sale's certificate dated 28 October 1999. The amendment was refused because the learned Chief Commissioner held that to allow it would allow the respondent to circumvent the provisions of the Act, s32(1)(a) and (b). He said, quite correctly, that if allowed, an entirely new claim would come into existence.
In his reasons for refusing the application for an amendment, the learned Chief Commissioner correctly said that it was a case of weighing the competing prejudices. He said that if he refused the application, the respondent:
(a)would lose the value of the evidence given to date;
(b)would have to make and serve a fresh claim for compensation; and
(c)would have to "address two barriers", viz, the failure to give notice of injury and the failure to make the claim for compensation within the time constraints imposed by the Act, s32(a) and (b).
The learned Chief Commissioner said that if he granted the application, the appellant would be denied the benefits of those statutory provisions, which the learned Chief Commissioner described as "designed to limit the possibility of prejudice to an employer". He said the amended claim:
"… would amount to the creation of a totally different claim for compensation and would have the effect of bypassing s32 of the Act which is clearly designed to limit the possibility of prejudice to an employer. … If the application to amend were allowed, the employer would be denied a specific protection provided to all employers, that being section 32."
Blow J said that allowing the amendment would not affect the provisions of s32(a) as the notice of injury had or had not been given and an amendment would have "no impact on these historical realities." However, I am not sure that this is correct having regard to the provisions of the Act, s32(3), which provides:
"An employer who receives a claim for compensation shall be deemed to have been given notice of the injury to which it relates."
If an amendment takes effect from the date of the document that is amended, and if the proposed amendment had been allowed, the amended claim for compensation would have been deemed to have been made on 19 September 1997 and, by virtue of s30(3), notice of injury would have been deemed to have been given on the same date. I pause to observe that this proposition creates its own difficulties for s32(a) and (b) require the claim for compensation to be made, and the notice of injury to be given "after the occurrence of the injury". The injury in respect of which Dr Sale gave evidence, namely, anxiety disorder or symptoms from post-traumatic stress disorder, did not arise until after September 1997.
Blow J held that error attended the exercise of the discretion in that the Tribunal overlooked "one very significant factor, namely that the refusal of the amendment might well have deprived the appellant of an entitlement to compensation in respect of his stress disorder". With respect to his Honour, I find myself in disagreement with that conclusion. Although the learned Chief Commissioner did not expressly allude to the risk that the claim might fail, by his reference to the respondent having to overcome the barriers to his entitlement created by s32(a) and (b), the Tribunal addressed this very issue.
Blow J did not express a view as to whether or not the amendment, if made, would relate back to the date of the original claim for compensation. The power to amend the claim for compensation appears in the Act, s44 in the following terms:
"44 ¾ The Tribunal may amend any application, referral, claim for compensation or appeal at the request of the person who lodged the application, referral, claim for compensation or appeal."
The section itself gives no clue as to the date from which any amendment should take effect. In its primary meaning, the word "amend" means to correct or rectify (Shorter OED). In the curial setting, it is well established that an amendment to a writ or other pleading takes effect from the date of the document that is amended. "The writ as amended becomes the origin of the action and the claim thereon endorsed is substituted for the claim originally endorsed", per Collins MR in Sneade v Wotherton, Barytes and Lead Mining Company, Limited [1904] 1 KB 295 at 297. In Warner v Samspon [1959] 1 QB 297, Hodson LJ said at 321:
"Once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried."
This principle has been applied in the many cases which have dealt with applications to amend which, if granted, would have the effect of introducing a new cause of action because the amendment speaks from the date of the document that is amended. Those cases classically begin with Weldon v Neal (1887) 19 QBD 394 and are too numerous to set out here.
In the light of this very well established law, it seems to me that had Parliament intended the Act, s44, to provide that an amendment has effect from any date other than the date of the document amended, it would have plainly said so.
The Supreme Court Rules 2000, r427(1), provides:
"427 ¾ (1) At any time before judgment, the Court or a judge may grant leave to a party to amend any process or pleading in such a manner and on such terms as may be just."
It will immediately be noticed that the rule empowers the Court to permit an amendment to be made, but subject to "such terms as may be just". The Act, s44, contains no similar provision.
For present purposes, r427(1) is indistinguishable from its 1932 predecessor, O31, r1. Even before the enactment of the Supreme Court Rules in 1932, a court of plenary jurisdiction had a power at common law to permit amendments to be made to its process. See Bonfield v Milner (1760) 2 Burr 1098: 97 ER 729; Havers v Bannister (1742) 1 Wils 7: 95 ER 462. According to Chittys' Queens Bench Practice (1862) (11 ed) at 1547, the court or a judge had an inherent power upon granting leave to amend, to "oblige the party applying to submit to such equitable terms as may be necessary to prevent the opposite party from being prejudiced by the amendment".
I raise all this because if the Tribunal has a power to impose terms upon giving leave to amend, it could have considered granting the respondent's application subject to the term that the amended claim for compensation be treated as if it had been made at the date of the amendment. See Bowden (1890) 45 Ch D 444. Such an order would have eliminated, or at least, substantially reduced, the prejudice that would have flowed to the appellant upon the making of the amendment, because the respondent would have had to satisfy the conditions laid down by the Act, ss37 and 38 as there would have been non-compliance with the Act, s32(a) and (b).
However, the Tribunal has no inherent jurisdiction. It is a creature of statute. Its powers are prescribed and confined by the statute. Although the statute contains a power to amend, it confers no power to amend subject to terms.
For these reasons it seems to me that no error attended the exercise of the discretion upon the application for the amendment. Further, if the amendment had been granted, the operation of the statutory provisions would have established that a notice of injury and the claim for compensation had been given before the injury arose. This was another good reason for refusing the application.
I would allow the appeal and reinstate the order dismissing the respondent's claim for compensation dated 19 September 1997.
File No FCA 48/2001
STATE OF TASMANIA v IAN BEADLE
REASONS FOR JUDGMENT FULL COURT
SLICER J
30 October 2001
I have had the opportunity of reading, in draft form, the reasons for judgment of Underwood J, and agree with his reasoning and conclusion.
During the hearing of this appeal, I was concerned that the respondent had been denied procedural fairness in that his counsel was precluded from addressing the Tribunal, in relation to the eventual finding of fact, that post-traumatic stress or anxiety was a separate disease, with a separate cause, from hypertension. A departure from the requirement of procedural fairness does not necessarily result in a successful appeal (Stead v State Government Insurance Commission (1986) 161 CLR 141). However, my concern in this case was that the description given by Dr Sale in his report of 28 October 1999, explained, or gave a better description to, the condition referred to in the claim for compensation dated 19 September 1997 (Wilkins v St Giles Society A80/1995). That concern is met by two propositions. The first is that it was necessary for the respondent to establish that he suffered a condition which was an identifiable injury "… arising out of and in the course of … employment; or … an injury, which is a disease, arising out of and in the course of … employment and to which … employment contributed to a substantial degree …" (Workers Rehabilitation and Compensation Act 1988, s25(1)).
Once the Tribunal determined, correctly, that the claim was confined to that made on 19 September 1997, any import of the condition diagnosed by Dr Sale was negatived. The claim was that of a physical condition and could not be enlarged in scope by a condition which was said to have come into existence at a later time. The existence of a post-traumatic stress disorder or chronic adjustment disorder in 1999 could not have constituted a concurrent, alternate, or possible claim. It might have arisen out of, or in the course of, employment, but it had a separate existence from that of hypertension. Even if hypertension could be said to be a consequence of stress or anxiety disorder, the respondent was still required to identify the condition said to have given rise to an entitlement to compensation and then establish a nexus between that condition and employment. Counsel, even if permitted to address on this point, could not have persuaded the Tribunal to a different conclusion on the evidence before it once the Tribunal determined that the claim was confined by the documentation of September 1997.
The second reason is that the respondent had been made well aware of the position adopted by the appellant and the intended argument designed to meet the respondent's case. Although many of the submissions made by the appellant's counsel related to the admissibility of evidence, and accepting that the basis of objection was misconceived, the purport and underlying reasons for the objections were made clear. It was open for the respondent to seek to amend the claim at an early stage. It might have resulted in an adjournment or an order on terms, but had that course been adopted the appellant would have known precisely the case it had to meet. Counsel for the respondent chose to wait until after the close of its evidence and an adverse ruling before seeking an amendment. The respondent was permitted to make submissions in relation to the amendment. The adverse finding of fact was an inevitable consequence of the refusal of leave to amend.
Any procedural unfairness identified by the respondent ought not have the consequence of vitiating the original decision. The refusal of leave to amend was properly within the discretion of the Tribunal.
I would uphold the appeal and reinstate the order made by the Tribunal dismissing the claim for compensation.
File No FCA 48/2001
STATE OF TASMANIA v IAN BEADLE
REASONS FOR JUDGMENT FULL COURT
EVANS J
30 October 2001
I agree with Underwood J's reasons for allowing this appeal and the order he proposes.
The respondent worker's predicament is a consequence of his failure to make a claim for compensation against the appellant employer in relation to the injury or disease in respect of which he sought compensation. His predicament is not the result of anything the learned Chief Commissioner did or failed to do in the course of hearing before the Tribunal. The claim the worker made for compensation from his employer prior to referring his entitlement to compensation to the Tribunal was initiated by a form dated 19 September 1997, in which the worker described his injury or disease as "hypertension" and referred to suffering "severe headaches blurred vision due to management practices". The accompanying medical certificate described the worker as presenting with "headaches and hypertension" caused by "work-related stress". The employer disputed liability in relation to that claim and the Tribunal made an order that a genuine dispute existed in relation to it.
That claim lay dormant until 2 December 1999, when the worker referred it to the Tribunal. At the outset of the hearing before the Tribunal, it emerged that the worker, by his counsel, proposed pursuing an entitlement to compensation on a basis which appeared to be outside the scope of his claim for compensation of 19 September 1997. This prompted the following exchange between the Chief Commissioner and counsel for the respondent:
"CHIEF COMMISSIONER: But are you aware you would be taking the risk if we hear all the evidence and it is held that the claim form of the 10th(sic) September relates to a condition that is not encompassed in Dr Sale's report given that the worker was cleared in respect of that condition in September 1997, we will have heard a lot of evidence on a matter that may determine there is no effective claim before the Tribunal and it would be the worker that is taking the risk of that difficulty if it is a procedural matter, a formal matter that needs to be addressed.
MS JAMES: The worker is aware of that risk. …"
The difficulty was not addressed. The worker pressed on with the reference and failed to adduce evidence that he was suffering from a compensable condition covered by his claim of 19 September 1997.
The course pursued on the worker's behalf appears to be the result of a misconception that the jurisdiction of the Tribunal extended beyond the scope of the worker's claim for compensation. Plainly that is not the case. The parameters of the matters which could be referred to the Tribunal are governed by that claim. The laudable objective of the Workers Rehabilitation and Compensation Act 1988, s49(1), that proceedings before the Tribunal be conducted with as little formality and technicality as possible, does not expand the jurisdiction of the Tribunal. That provision requires as little formality and technicality "as the requirements of this Act and a proper consideration of the matters to be resolved permit." There is nothing in that provision or elsewhere in the Act which gives the Tribunal jurisdiction to award a worker compensation for an injury or disease which is beyond the scope of any prior claim for compensation made by the worker pursuant to the Act.
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