R v Justices of Kent (1872-1873) 8 QB 305, applied.

FAI General Insurance Co Ltd and St Johns Hospital v De Saye A23/1992, discussed.

Solicitors for appellant: Wallace Wilkinson and Webster

UNDERWOOD J The appellant employed the respondent as an extended carer in its home for the aged at Lindisfarne. The respondent claimed that she was incapacitated for work as a result of an injury she suffered whilst lifting a patient on 4 August 1993. She completed a claim for compensation form on 8 September 1993 and gave it to the appellant. It was accompanied by a medical certificate. The appellant disputed liability. Two days after receipt of the claim, the appellant referred the matter of the claim to the Commissioner as provided by the Workers Compensation Act 1988, s81A(1)(d). Six days after the appellant received the claim, the respondent received a letter from FAI General Insurance Co Ltd, the appellant's licensed insurer. It was written on the company letterhead, addressed to the respondent and read as follows (formal parts omitted):

"We write on behalf of your employer and hereby advise

pursuant to the provisions of Section 81 (A) of the Workers

Compensation Act, 1988 that Freemasons Homes of Southern

Tasmania dispute liability to pay:-

(1) Compensation by way of weekly payments.

(2) Any benefits payable under Division 2 of part V1 in

respect of the injury.

The basis upon which Freemasons Homes of Southern Tasmania

dispute liability as indicated above is that there is

insufficient evidence to show that the injury suffered by

you arose out of and in the course of your employment. The

Workers Compensation Commissioner has been advised that a

dispute exists.

Yours faithfully,

Karin Renetzeder

FOR AND ON BEHALF

OF FREEMASONS HOMES OF SOUTHERN TASMANIA"

2. When the matter referred came before the Commissioner, Miss Renetzeder who it would seem, is an officer of FAI General Insurance Company, appeared on behalf of the appellant and a Mr Stringer appeared on behalf of the respondent. Two issues were raised, the first by the Commissioner, viz:

1 Was there a valid claim for compensation?

2 Had the employer served the worker with written notice

that the employer disputes liability as provided by

s81A(1)(c)?

3. The Commissioner determined both issues in favour of the respondent and made an order that the appellant pay her weekly payments from 4 August 1993. Although not argued on appeal, it seems to me that the Commissioner's determination that there had been non compliance with s81A(1)(c) ought to have led to the conclusions that no matter had been referred to him under s81A(1), that therefore he had no jurisdiction to make any order at all, and s81 would have operated to make compensation payable.

4. The issues raised by the notice of appeal are easily isolated.

5. Section 34(1) prescribes the requirements of a valid claim for compensation. Paragraph (a) requires it to "be in the prescribed form". Statutory Rule 157/88, reg4, Sch1, Form1 sets out the form prescribed from the commencement of the Workers Compensation Act 1988 until gazettal of Statutory Rule 151/92, dated 17 September 1992. The latter rule omitted the form prescribed by the earlier statutory rule and substituted a new form. The respondent's claim for compensation was written on the old form. There is little difference between the two, although it is fair to observe that the new form appears to be the easier of the two to complete.

6. I reject the submission put on behalf of the appellant, that no claim for compensation has been made at all because the form on which the claim was written has been omitted by a recent statutory rule. To be fair, it should be noted that at the hearing before the Commissioner he was the one who raised this point, I infer to deflect the point raised on behalf of the respondent that the notice of disputed liability did not comply with s81A(1)(c), in what turned out to be a vain attempt to get to the substance of the dispute. Miss Renetzeder's only submission to the Commissioner with respect to the claim form was that it "needs an explanation".

7. In his oral reasons, the Commissioner referred at length to a decision of mine, FAI General Insurance Co Ltd and St Johns Hospital v De Saye A23/1992. In that case I described the claim for compensation, entitled "worker's report" as bearing "only a general resemblance to the form prescribed". That is not the case here. Although there are differences between the old form and the current form, they are very similar in substance. In De Saye, the failure to comply with the statutory form did not defeat the claim for compensation. The Commissioner treated it as a valid claim, presumably in reliance upon s34(3) which 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."

8. The enactment of this subsection clearly reflects Parliament's intention to provide that substantial compliance with s34(1) is sufficient to satisfy the requirements of the subsection. This general intention is also reflected in s34(2). Even without subs(2) and (3), having regard to the purpose and nature of the enactment and the consequences that would flow from a requirement that there must be strict compliance with the prescribed form to make a valid claim for compensation, the intention of Parliament is clear. Substantial compliance with subs(1) will suffice. See Tasker v Fullwood (1978) 1 NSWLR 20 and Hatton v Beaumont (1977) 2 NSWLR 211.

9. The question is whether completion of the claim for compensation on a form prescribed by the 1988 statutory rule, constitutes sufficient compliance with s34(1)(a) as provided by s34(3). Miss Wall, for the appellant, submitted that it did not and pointed to a number of questions that appear on the current form but do not appear on the form prescribed by the 1988 statutory rule. Considered in the light of the information that was given by the appellant on the claim form submitted, the information not supplied by reason of the failure to use the new form was information that was reasonably ascertainable by the appellant or its licensed insurer. Accordingly I conclude that the Commissioner did not fall into error when he determined that a valid claim for compensation had been made.

"An employer who disputes liability -

(a) to pay compensation by way of weekly payments for an

injury referred to in section 81(1); or

(b) to pay the costs of any benefits payable under Division

2 of Part VI in respect of the injury -

must, within fourteen days of receiving the claim for

compensation in respect of the injury to the worker -

(c) serve the worker with written notice that the employer

disputes liability -

(i) to pay compensation by way of weekly payments and must

inform the worker for the reasons for disputing liability;

or

(ii) to pay any benefits payable under Division 2 of Part VI

in respect of the injury and must inform the worker of the

reasons for disputing liability; and

(d) refer the matter to the Commissioner."

11. This provision was inserted by Amending Act 50/1992, s9 which also repealed s81 and enacted a new s81. Repealed s81(2) provided:

"An employer who disputes his liability to pay compensation

by way of weekly payments for an injury referred to in

subsection (1) shall, before the next pay day of the worker

following the day on which the claim for compensation in

respect of that injury was received by him -

(a) notify the worker, in writing, that he disputes

liability to pay compensation by way of weekly payments and

shall inform the worker of his reasons for disputing that

liability; and

(b) refer, as prescribed, the matter to the Commissioner."

12. Both repealed s81(2) and the current s81A(1) confer the right to dispute liability on the employer and no one else. Prior to the amendment, an employer who failed to put in train the statutory dispute procedure, lost the right to dispute liability to pay compensation under the Act with respect to the injury in respect of which the claim was made. Such right is now preserved by s81A(5) but, unless the dispute procedure is put in place, and the Commissioner makes an appropriate order, weekly payments have to be made pending determination of the issue of liability. In FAI General Insurance Co Ltd v De Saye (supra) I said at 7:

"The employer neither made an application nor referred any

matter to the Commissioner. The application was made by the

licensed insurer. Section 81(2) confers on the employer a right

to refer 'the matter' to the Commissioner, provided the employer

has notified the worker in writing that liability to pay

compensation by way of weekly payments is disputed and informed

the worker of the reasons for disputing that liability. In the

present matter the employer did nothing. The licensed insurer

notified the worker that there was a dispute and the reasons for

it and the licensed insurer referred the matter to the

Commissioner. The licensed insurer had no statutory status to

take either of these steps and consequently, the referral or

"application" was incompetent. See FAI General Insurance Co Ltd

v MMI-CMI Insurance Ltd and Ors, Zeeman J No14/1992 at p7. Of

course, the licensed insurer could have exercised rights it may

have had under a policy of insurance to take over conduct of a

matter in the name of and on behalf of the employer but, this it

did not purport to do. If the heading to the transcript of

proceedings is correct, the employer did not appear at the

hearing at all."

13. In FAI General Insurance Co Ltd v MMI-CMI Insurance Ltd and Ors, Zeeman J, A14/1992 his Honour said at 7:

"I make some further observations on the way in which s81

was purportedly invoked in this case. In my view, it was not

open to the first respondent to make the reference which it

made. It did not purport to act on behalf of the employer.

During the course of argument, the learned Commissioner

suggested that the first respondent was acting or purporting to

act 'in the shoes of the employer'. That suggestion was not

supported by any material before the learned Commissioner. The

third respondent, (the City of Burnie) acting by its agent (the

insurer), purported to act under s81(2), and in particular to

refer the matter to the Commissioner. There was no basis for

the first respondent to take similar action. Whilst licensed

insurers are for certain purposes given a status under the Act

and are entitled to make applications to the Commissioner, there

is no authority for a licensed insurer to proceed under s81(2).

That is not to say that a licensed insurer may not, in the

exercise of its rights under a policy of insurance, take over

the conduct of a matter in the name of and on behalf of the

employer. The first respondent's steps purportedly under s81(2)

were of no effect."

14. Although the relevant statutory provisions have been amended since the above two decisions were handed down, the amendments have not affected the substantive requirements for invoking the jurisdiction of the Commissioner now provided by s81A(3). Two separate steps are required in the case of a disputed claim for compensation. The first is that, within the prescribed time, the employer must serve the worker, in accordance with s159, with written notice that the employer disputes liability and inform him of the reasons for such dispute. The notice in this case:

1 was in writing;

2 presumably was served in accordance with s159;

3 states that the employer disputes liability;

4 informs the worker of the reasons for such dispute.

15. It is quite different from the notice in De Saye which made no reference to the employer disputing liability at all. Indeed, in that case, a sentence in the letter of notification, dated the day after the reference to the Commissioner, "We have notified your employer ... that a dispute exists," clearly indicated that the employer had no part in the decision to invoke the dispute procedure. The complaint about the notice in this case simply is that it was written by the insurer on behalf of the employer and this, it was submitted, is not authorised by the Act. Although there was no finding of fact that the employer authorised the insurer to give the notice, I shall assume for the moment that the insurer had such authority.

16. In general terms, at common law, an agent may be appointed for the purpose of doing any act on behalf of the principal which the principal has the right to do "except for the purpose of executing a right, a privilege or power conferred or of performing a duty imposed on the principal personally, the exercise or performance of which requires discretion or special personal skill, or for the purpose of doing an act which the principal is required, by or pursuant to any statute, to do in person." Per Bowstead on Agency, 15 edn, 36. The Workers Compensation Act, s81A(1) contemplates that the employer must form the requisite state of mind ie, to dispute liability, but it does not follow that only the employer can comply with the statutory requirements of s81A(1)(c). In R v Justices of Kent (1872-1873) 8 QB 305, the court considered the requirements of a statute that provided that a notice of appeal shall be signed "by the person giving same or by his attorney." The notice was signed by the appellant's attorney's clerk. The court held that there was nothing in the words of the statute to restrict the operation of the common law qui facit per alium facit per se, and that authorised signature by the agent complied with the statutory requirements, there being nothing in the words of the Act "that makes a personal signature necessary," per Blackburn J 307. In re Whitley Partners, Limited (1886) 32 Ch D 337, R v Justices of Kent was cited with approval. Bowen LJ said at 340: "In every case where an Act requires a signature it is a pure question of construction on the terms of the particular Act whether its words are satisfied by the signature of an agent." R v Justices of Kent was applied in London County Council v Agricultural Food Products Ld (1955) 2 QB 218. In that case the notices were expressed to be given by an agent on behalf of a named principal and signed by an employee of the agent who used the name of the agent as his signature. Romer LJ said at 223-224: "It is established, in my judgment, as a general proposition that at common law a person sufficiently 'signs' a document if it is signed in his name and with his authority by somebody else; in such case the agent's signature is treated as being that of his principal."

17. There is nothing in the provisions of the Workers Compensation Act 1988 s81A(1)(c) to suggest that the common law rule referred to in R v Justices of Kent (supra) should be abrogated in any way. Service of a notice, containing the required information and given on behalf of an employer by a duly authorised agent of an employer that has formed the requisite state of mind, is sufficient compliance with that paragraph of the subsection. In Tasmanian Government Insurance Board and Ors v Priest, Zeeman J A57/1993, a notice pursuant to s86(3) was given by solicitors as agents for the employer. The issue in that case was whether an erroneous description of the name of the employer defeated the validity of the notice. Zeeman J held that it did not and that there was a sufficient notice to satisfy the requirements of s86(3)(a). Insufficiency of notice by reason of the fact it was given by the employer's agent, authorised to do so, and not the employer personally, does not appear to have been even questioned. In De Saye, the notice did not contain the required information viz, that the employer disputed liability, and was given by the insurer as principal and not as agent for the employer.

18. In a case where the notice is given by the employer's agent and the existence of the employer's state of mind or the agent's authority to give the notice is put in issue, the Commissioner must determine those issues upon such evidence as is put before him. If the employer signs the notice to the worker, that fact is cogent evidence that the employer holds the requisite state of mind. In the present case there was no evidence tendered on these issues. The Commissioner erred in law in determining that there had been non-compliance with s81A(1)(c) on the state of the material before him. If the insurer was authorised to give the notice on behalf of the appellant, there was a competent referral pursuant to the Act, s81A.

19. The appeal is allowed, the order set aside. I will refrain from ordering that the Commissioner rehear the reference and determine it in accordance with law until I have given counsel an opportunity to address me further with respect to the ultimate disposition of this appeal.