Workers Rehabilitation and Compensation Act 1988 (Tas), ss32(1)(a), 33(1)(b).

Judgment ID Number: [1999] TASSC 37

1 The appeal has been brought from a determination of the Workers Rehabilitation and Compensation Tribunal in favour of the respondent worker. The Tribunal found that the respondent gave notice of injury as soon as practicable after the occurrence of his injury, which is a requirement of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s32(1)(a). It is that finding which is attacked by the appeal. The grounds of the appeal are:

1 The learned Commissioner erred in law in determining that the respondent did give notice of the injury as soon as practicable after the occurrence of the injury.

2 The learned Commissioner erred in law in failing to give any reasons as to why he concluded that the worker gave notice of the injury as soon as practicable after the occurrence of the injury.

2 It was agreed by the parties that ground 1 would be argued upon the basis asserted by the appellant, which was that no tribunal acting reasonably and properly instructed as to the law could have made that determination (see FAI General Insurance v Morrisson (1993) 3 Tas R 9 at 27).

3 The Act, s32(1)(a), requires that a person shall not be entitled to compensation under the Act for an injury to a worker unless (inter alia) 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 s33(1)(b). The categories of persons referred to in s33(1)(b) are:

"(i) the employer of the worker or, if there is more than one employer, to one of the employers of the worker; or

(ii) a person under whose supervision the worker is employed; or

(iii) a person designated for the purpose by the employer; or

(iv) a person having authority or apparently having authority to receive such a notice on behalf of the employer;"

4 It was the respondent's evidence before the Tribunal that he suffered the material injury to his knee when working for Hobart Blue Metal Industries ("HBMI"), one of the appellant's sections. On that day, 18 March 1996, he was working in the course of his employment by the appellant in the area of the wharf at Pasminco's premises at about mid-afternoon, when "my left leg slipped out in front and dropped my whole weight on my right leg and I fell". He said that he then felt excruciating pain. He managed to continue working, however, for some days notwithstanding pain and discomfort. It is to be noted that the premises where the injury was suffered were not those of the appellant.

5 Of critical importance to the issues arising on the appeal, was a form entitled "Accident Report Form" published by the appellant in the name of HBMI. It was the evidence of the respondent that he obtained the form from HBMI's office at Leslie Vale at about 5.45 to 6am on 19 March 1996, the day after he suffered the injury. He said that he worked for the rest of the day at the appellant's Derwent Park workshop for about 10½ hours until about 5.30 to 6pm and that night he filled out the accident report form and signed it. It was not argued by the appellant's counsel that the information on the form was inadequate for a notice of injury. It was the respondent's evidence that he returned the completed form to HBMI's office at Leslie Vale the next morning, 20 March 1996, giving it to one of its supervisors, Mr Fletcher Gillam. He then travelled to a quarry site at Copping, on the east coast, where he worked for the day. In all that day, he worked at Copping, including travelling time, for 11½ hours.

6 A copy of the accident report form was received in evidence. It recorded (inter alia) that the respondent had twisted his right knee at 3.15pm on 18 March 1996 when he was in the wharf area at Pasminco's premises. There was no provision on the form for it to be dated and nothing was recorded on it to indicate when it was received at HBMI's office at Leslie Vale. The form in evidence was not the original, but a faxed copy and it identified the sender of the fax as HBMI and recorded the sending as having taken place on 20 March 1996 at 7.30am. That supports the respondent's evidence that he returned it to HBMI's Leslie Vale office that morning before he travelled to Copping. It was the evidence of the appellant's supervisors, Mr Colin Cashion and Mr Fletcher Gillam, that the sender's identification on the form indicated that it was sent from HBMI's fax machine. Mr Cashion said that the probability was that it was sent to "head office". It was conceded by the appellant that the faxed copy of the form was on its file held in relation to the respondent. On the hearing of the appeal, counsel referred to it having been found on the personnel file which was kept by the appellant with respect to the respondent. There was no evidence showing who took up the form from the fax machine at "head office", nor was there any evidence establishing how or when the form came to be placed on the appellant's personnel file relating to the respondent.

7 The learned Commissioner found that the respondent did "fill out an accident report form apparently on 20 March 1996 and forwarded such form to his employer's head office". The only evidence concerning the filling out of the form was from the respondent that he filled it out on the night of 19 March. However, the inaccurate finding is not of any consequence. The finding that the respondent forwarded the form to his employer's head office was also not supported by the evidence. It was the respondent's evidence that he gave it to Mr Gillam at HBMI's Leslie Vale office on the morning of 20 March. It was Mr Gillam's evidence that he has no recollection of receiving the form from the respondent and that he believes that if he had received it, he would have placed his signature on the form in his capacity as a supervisor. There was, therefore, no evidence which identified the person who forwarded a copy of the form by fax to the appellant's head office, although the evidence did establish that it was forwarded by someone from HBMI's office on 20 March at 7.30am to the appellant's head office. The learned Commissioner said that "on the evidence I can identify no reason as at that date why the worker would make such a report other than to give notice of the incident that occurred on 18 March 1996." That conclusion was open on the evidence and plainly a correct one.

8 The learned Commissioner's reasons for concluding that the notice of injury was given by the respondent as soon as practicable were as follows:

"On the worker's evidence he gave notice of his injury to Mr Cook on the afternoon that it occurred, that he lodged his accident report form on 20 March 1996 and that also on that date he gave verbal notification to his supervisor Mr Cashion. Given the evidence of Mr Cook, Mr Cashion and Mr Gillam, I cannot be satisfied that any verbal notification was given to them by the worker as alleged by the worker. In particular Mr Cook could remember a previous injury of which notice was given but not one affecting the worker's knee. There is no indication as to why he should recall one but not the other especially as the worker also says that he worked with Mr Cook on the next day and that he was significantly restricted in his physical activities during that day because of his injury. Mr Cook also had no recollection of making any such observations of the worker. Mr Cashion outlined the normal procedure which he adopted when notices of injury were given to him, in particular as to making an entry of same in his work diary and also ensuring that he signed the documents as the supervisor. Given his evidence, and that of Mr Gillam, I am not satisfied that the incident was verbally brought to their attention as alleged by the worker. This leaves the written accident report form W3 which does provide the necessary information required by Section 33(1)(c) and (d) of the Act. The employer however submits that there is no evidence that this notice was effectively given to the employer as the requirements provided by Section 33(1)(b) have not been established. The worker says that he filled out this claim form and gave it to Mr Cashion subsequent to providing verbal notification to Mr Cashion of his injury. Based on my previous comments as to the giving of this verbal notice, and also noting the denial by both Mr Cashion and Mr Gillam that such written notification was given to them, I am not satisfied on balance that the claim form was provided to either of these gentlemen who would have been recognised as a supervisor of the worker. Given the evidence generally, I am inclined to the view that the worker obtained the accident report form from someone or some office, that he completed it himself noting himself as the supervisor and that this form was faxed to the head office of the employer. I am unable to make any finding that the form was directed to any particular person within the head office of the employer. It therefore becomes difficult to identify whether notice was given to the employer as required by the Act. However it is conceded by the employer that the accident notice was placed on the personal file relating to the worker, held by the employer. Accordingly I find that the notice was accepted by some agent or servant of the employer, the notice was not returned to the worker with instructions to resubmit it to a particular person, therefore it was accepted on behalf of the employer either by inference a person who had authority to do so or given its acceptance by a person with apparent authority to receive such a notification.

Accordingly at this stage I am satisfied that the worker did suffer some form of insult or injury to his knee on 18 March 1996 and that he gave notice of that injury as soon as practicable."

9 Those reasons do not repeat what was stated earlier by the learned Commissioner, that the respondent forwarded the form to the head office. It simply states that the form was faxed to the head office, which is more in accord with the evidence and other findings which were made.

10 There is no provision in the Act which explains how a notice of an injury may be given to an employer which is a company, apart from the provisions of s33. Subsection (1)(a) provides that the notice may be given orally or in writing and the subparagraphs of subs(1)(b), which I set out earlier in these reasons, identify the person to whom the notice must be given. Subparagraph (i) provides that notice may be given to the employer, which in this case was a company. Subparagraphs (ii) - (iv) allow for service on persons who have particular roles or authorities with regard to an employer. The learned Commissioner found that the notice in this case was received by a person specified in s33(1)(b)(iv) when he found that "it was accepted on behalf of the employer either by inference a person who had authority to do so or given its acceptance by a person with apparent authority to receive such notification". It should be noted that it was not necessary for the learned Commissioner to look for the giving of notice to one of the persons specified in s33(1)(b)(ii) - (iv), because the giving of notice to the employer simpliciter would have complied with subpar(i).

11 The Corporations Law now makes provision in s109X for the giving of notices to companies, but it contained no such provision at the time relevant to this case, in March 1996.

12 However, in view of concessions made by counsel for the appellant, it is unnecessary for me to consider further how a notice may be given to an employer which is a company. Counsel conceded that receipt by a company of the notice by mail or by fax would constitute sufficient notice. Such a concession is understandable in this case, in circumstances where the notice was received at the company's head office.

13 It remains then to consider whether causing the appellant to receive the notice of injury at 7.30am on 20 March 1996 amounted to the giving of such notice "as soon as practicable after the occurrence of the injury" (see s32(1)(a)). In my opinion the evidence established that it did. There was evidence that the accident occurred at 3.15pm, or mid-afternoon, on Monday 18 March 1996. The respondent was not then prevented by the injury from continuing to work. On that day, his duties required him to work on premises which were not those of the appellant. The respondent's evidence was that he continued work there until 8.30pm according to the time sheet. HBMI's office at Leslie Vale would not then have been open, he said. There is no evidence that up until that time he had a reasonable opportunity to report the injury to the appellant or to any of the persons specified in s33(1)(b). The only evidence of him speaking to a person associated with the company that afternoon was his own evidence of speaking to Mr Barry Cook, but the evidence did not show Mr Cook to be a person referred to in s33(1)(b). All the respondent said about him was that he classed Mr Cook as his "on-site supervisor" merely because he was more experienced and older.

14 The respondent obtained the appellant's accident report form. His evidence was that he obtained it from HBMI's office at Leslie Vale at about 5.45 to 6am next day. There was no suggestion on the evidence that he obtained the form from any other place. He had to fill the form in and submit it to the appellant. It was his evidence, which was not disputed, that he worked for virtually all of that day at the appellant's workshop at Derwent Park, about 10½ hours, until about 5.30 to 6pm. Early next morning, at 7.30am, the copy of the completed form, giving notice of the injury, was received at the appellant's head office. In all the circumstances, the finding that the notice was given as soon as practicable after the occurrence of the injury was open on the evidence and appropriate. He was not required to give the notice as soon as possible, but as soon as practicable after the occurrence of the injury. Because of the hours and places at which he worked for the appellant, his opportunity to report the injury was far more restricted than might otherwise have been the case. I am not persuaded that the apparent failure of the respondent to stay at the office of HBMI on 19 March and fill in the accident report form immediately upon receiving it, instead of taking it and filling it in after he had finished work that day, prevented him from giving the notice as soon as practicable after the occurrence of the injury.

15 The second ground of the appeal complains that the learned Commissioner failed to give any reasons for concluding that the respondent gave notice of the injury as soon as practicable after the occurrence of the injury. Having regard to the passage I cited earlier from the learned Commissioner's reasons, the ground must fail. Substantial reasons were given. Counsel for the appellant complained that the reasons are silent as to why it was determined that the giving of notice at 7.30am on 20 March 1996 amounted to the giving of notice as soon as practicable after the occurrence of the injury. That may be so, but essentially the determination of the relevant question was one of judgment upon the basis of the facts established by the evidence, and the learned Commissioner substantially found the material facts. I also note that as counsel for the respondent pointed out, it can be seen from the learned Commissioner's reasons that it was submitted on behalf of the appellant that no notice of injury was given at all, it being argued, apparently, that receipt of a copy of the accident report form by fax at the appellant's head office did not constitute the giving of the relevant notice. It appears that it was not argued that if the fax amounted to notice, it was not given within the relevant time. Counsel for the appellant did not claim the contrary was the case. It is not surprising, therefore, that the learned Commissioner concentrated on the question of notice in his reasons and not on the question of time with regard to it.

16 For these reasons, the appeal will be dismissed.