Workers Rehabilitation and Compensation Act 1988 (Tas), s38(1).

Murray v Baxter [1914] HCA 78; (1914) 18 CLR 622; McDonald v Co-Operative Motors Ltd 57/1971; applied.

Quinlivan v Portland Harbour Trust [1963] VicRp 5; [1963] VR 25; Black v City of South Melbourne [1963] VicRp 7; [1963] VR 34; Roles v Pascall & Sons [1911] 1 KB 982; Green v Hansen and Yuncken [1923] VicLawRp 89; [1923] VLR 688; Richardson v Dodderidge [1960] Tas SR 25, referred to.

Workers Compensation - Proceedings to obtain compensation - Appeals and stated cases - Other matters - Tasmania - Powers of judge on appeal - Power to make order or determination which ought to have been made by Workers Rehabilitation and Compensation Tribunal.

Judgment ID Number: [2000] TASSC 100

1 The appellant claims to be the infant son of the late Leslie John Baxter who was killed when crushed by a truck while he was working for the respondent on 13 January 1995. The appellant was born on 29 September 1987 and was therefore seven years old at the time. He claimed compensation for the death of his father under the Workers Rehabilitation and Compensation Act 1988, s67, upon the basis that he was a dependant child of the deceased. However, he did not make his claim for compensation within the six months time limit of s32(1)(b). He referred to the Workers Rehabilitation and Compensation Tribunal a dispute between him and the respondent relating to his failure to do so and sought a determination under s38(1) that his failure to make the claim within time did not affect the validity of his claim.

2 The reference was dated 18 November 1998 and filed with the Tribunal on 20 November 1998. A hearing was conducted on 31 March 1999 and on 20 May 1999 the Commissioner published reasons for determining that the appellant's failure to claim within time was not occasioned by mistake or other reasonable cause. The reference was dismissed. The appellant has appealed to this Court from that determination and dismissal.

3 So far as it is relevant to this case, it was provided by s32(1) that a person was not entitled to compensation for an injury to a worker unless (a) notice of the injury was given to the employer as soon as practicable after the occurrence of the injury, and (b) a claim for compensation was made within six months after the worker's death. Under that provision time expired for the making of a claim by the appellant on 13 July 1995. Failure to claim within six months could be excused under s38 which provided as follows:

"38 - (1) The failure to make a claim for compensation within the period prescribed by section 32(1)(b) or (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

(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) or (2A) may be referred by either party to the dispute to the Tribunal for determination."

4 At issue before the Tribunal constituted by the Commissioner was whether the failure of the applicant to make a claim for compensation within the period prescribed by s32(1)(b) was occasioned by mistake or other reasonable cause.

5 Oral evidence was given by the appellant's mother, Mrs L J Lee (she had married since 1995) and a solicitor at Douglas & Collins, Mr B D Sproal. The appellant's mother was aged 35 at the time of the death of the deceased on 13 January 1995 and as I have said, the appellant was then aged seven years. Mrs Lee gave evidence that he was born as a result of a relationship she had with the deceased. She and the deceased were engaged to be married at the time of his death. She had never lived full-time with him but their relationship had existed since 1985 and during that time she had cooked for him and spent quite a lot of time with him. He spent a lot of time at her house and kept at least some of his belongings there, including a car. He helped her financially and cut firewood for her. He supported the appellant by buying clothing and necessaries for school and by paying doctor's and dentist's accounts. Sometimes he paid for the weekly grocery shopping and he purchased Christmas and birthday presents for the appellant.

6 It was Mrs Lee's evidence that following the deceased's death on 13 January 1995 she went to see Mr Sproal at Douglas & Collins because he was the deceased's lawyer. She had nothing to do with Mr Sproal before. In fact she had no dealings with lawyers before, nor anything to do with an estate or a workers compensation claim. She was prompted to see Mr Sproal because she had been having trouble with the deceased's mother, who wanted to take the appellant and who had asserted a belief that she was entitled to everything that belonged to the deceased. (On the basis of Mrs Lee's evidence the appellant was entitled to all of the deceased's estate under the Administration and Probate Act 1935, s44.)

7 According to Mrs Lee's evidence, she asked Mr Sproal to do whatever was needed to administer the estate. She did not understand what had to be done. The deceased had died intestate. She did not ask Mr Sproal about workers compensation entitlements nor did he raise the subject. Nobody from the employer contacted her. She knew nothing of any time limits or of the need to fill out any forms. Subsequently she received correspondence from Mr Sproal about estate matters, but received no advice from him about workers compensation. In August 1995, after the six months time limit of s32(1)(b) had expired, she had a conversation with the deceased's cousin, Mr Peter Simpson, who raised with her the matter of workers compensation and asked if she had done anything about it and filled out claim forms. She did not understand what he was talking about and so telephoned Mr Sproal and asked him about it. She could not remember Mr Sproal's response.

8 It was Mr Sproal's evidence that he was consulted by Mrs Lee in mid-January 1995. She wanted to ascertain what she needed to do in relation to her fiancee's estate. She did not believe the deceased had left a will, so he took instructions with a view to making an application for letters of administration. He was not instructed to investigate or pursue an entitlement to workers compensation. He made a note at the time "funeral director C T Finney - covered by Workers Comp", where he had recorded the funeral account in a list of liabilities and noted that workers compensation would pay for it.

9 Mr Sproal said that his area of legal practice was general commercial law. At that time he did not understand what was involved in making a workers compensation claim (except, presumably, the recovery of funeral expenses) and he did not have any idea about the time limit for making such a claim. So far as he was concerned, he was handling an estate, not making a workers compensation claim. Although on 20 January 1995 he sent a letter to the deceased's employer asking for details of its workers compensation insurer, he did so only because he "was seeking confirmation of her entitlement to the funeral benefit ... to confirm that funds would be available". He wrote letters to banks and financial institutions and to an insurance company in relation to superannuation. He was doing what he would normally do when instructed with regard to an estate. He also had correspondence with solicitors acting for the deceased's mother.

10 On 23 January 1995 the employer wrote to Mr Sproal identifying Commercial Union Insurance as its workers compensation insurer. On 30 January 1995 the solicitors for the insurer wrote to Mr Sproal asking that he "advise us of exactly who you act for ... and whether your client intends to make a claim for compensation", in which case they asked for details. Mr Sproal had already decided that it was appropriate that Tasmanian Trustees Ltd take over the administration of the estate. On 28 February the company agreed to do so. Towards the end of March he passed on copies of correspondence and details of assets to the trustee company. Nothing further was done by him. It is obvious that he regarded his instructions as having ended. He had sent the letter from the insurer's solicitors to the trustee company, together with all other correspondence on the file, and had not replied to it. He did not think that he sent a copy of that letter to Mrs Lee. However, he recorded that on 8 August 1995 Mrs Lee telephoned him concerning "workers compensation claim for Les Baxter" and he noted that he was to refer the matter to Mr Robert Pearce, who would contact her. I am aware that Mr Pearce is a litigious solicitor at Douglas & Collins. Mr Sproal spoke to Mr Pearce and gave him Mrs Lee's telephone number.

11 It was not until 22 October 1996 that Mr Pearce wrote to the employer advising that he was instructed by Mrs Lee to make a workers compensation claim. Following correspondence between the insurer's solicitors and Mr Pearce nothing of relevance transpired between November 1996 and 20 August 1998 when a claim form, signed by Mrs Lee on behalf of her son, was sent by Mr Pearce to the insurer's solicitors. The evidence did not explain the delay which occurred after August 1995. I agree with counsel for the appellant that it is irrelevant, for a reason which will be explained later.

12 In the reasons for his determination, the Commissioner made the following findings of fact:

1 The claimant was the child of the deceased worker.

2 The claimant's mother and deceased worker were engaged to be married at the time of his death and had enjoyed a close relationship for a number of years prior to that time.

3 The worker was killed at work on 13 January 1995.

4 The claimant's mother made investigations shortly thereafter about the administration of the deceased's estate and an argument that arose involving the deceased's mother over entitlement.

5 The workers compensation claim was not made in relation to the death of the deceased by the claimant's mother for and on behalf of the claimant until some time in October 1998, so that no claim was made within six months of the date of death of the worker.

6 The claimant's mother, Mrs Lee, went to see Mr Sproal "for the purposes of fixing up anything to do with the administration of the deceased's estate". She knew nothing about workers compensation and throughout the relevant six months' time limit period from the death of the deceased she was unaware generally that she could make a claim for workers compensation on behalf of her son. Her main concern was the administration of the deceased's estate and the problem she was having with the deceased's mother.

7 "At that time also there could be no doubt that the eight year old infant child of the deceased was ignorant of his rights." (The appellant was in fact seven years old then.)

8 By going to see Mr Sproal, Mrs Lee intended to have him do all things necessary for the administration of the estate, so that the appellant received his entitlements, and not the deceased's mother.

9 Mrs Lee went to a solicitor who was not well versed in the requirements of workers compensation legislation and who knew nothing about making claims and time limits. He was, however, aware of the provisions of the workers compensation legislation in so far as they applied to funeral expenses. In other words, he knew that there was legislation under which, when a person died, his funeral expenses could be paid for.

10 Mr Sproal was also aware that the deceased's next of kin was the appellant, who at that stage was aged seven, and that the deceased did not leave a will and that the appellant would be the sole beneficiary of the deceased's property.

13 A paragraph in the Commissioner's reasons demonstrates, surprisingly, that he misunderstood the nature of a claim for workers compensation by a dependant of a deceased worker, for he incorrectly referred to it as if the dependant's claim was one to be made against the estate of the deceased and then, confusingly and also incorrectly, to it involving access to the deceased's entitlement to workers compensation. The Commissioner said:

"In my view a prudent legal practitioner acting upon those instructions ought to establish the entirety and totality of any claims that such a person might have upon the estate. Such claims must of necessity include access to any entitlements that the deceased might have at his unfortunate and untimely death. The area of workers compensation payments upon the death of a deceased worker is one such entitlement and the ignorance that Mr Sproule [sic] had of time limits in relation to making claims for compensation does not amount to a mistake or [sic] regretfully, in my opinion, does it amount to reasonable cause, given that in my view he could be said to have been acting on behalf of the infant claimant generally at that time."

14 The logic expressed in that paragraph and which was plainly wrong, was as follows. The legal practitioner's instructions to act for the appellant required the practitioner to establish for him all that he was entitled to receive out of the deceased's estate. The deceased was entitled to be paid workers compensation consequent upon his injury and death. The appellant was therefore entitled to claim from the estate, what the deceased was entitled to recover by way of workers compensation. The failure of the legal practitioner to act in accordance with his instructions and establish for the appellant all of his entitlements against the estate including his right to receive the workers compensation to which the deceased or his estate was entitled, did not amount to a reasonable cause for failing to make the claim for the workers compensation, notwithstanding that it arose out of the legal practitioner's ignorance.

15 The true position was that the appellant's entitlement to workers compensation was not one he could enforce either against or through the deceased's estate. His entitlement arose vis-à-vis the respondent and no instruction was given to the practitioner on the appellant's behalf which required the practitioner to make a claim on his behalf against the respondent. The Commissioner did add that the practitioner could be said to have been acting on behalf of the appellant generally at the time, but that was also incorrect. Arguably he owed a professional duty to advise the appellant's mother of the boy's entitlement to workers compensation, and the appellant's counsel did not seek disagree, but the evidence did not justify a conclusion that the practitioner was "acting generally" for the appellant, whatever that expression might mean. He was instructed merely to attend to the administration of the deceased's estate.

16 The Commissioner held that Mr Sproal's "lack of action" with regard to workers compensation "was based upon his ignorance of those provisions [of the law] which is not an excuse and cannot amount to a reasonable cause." With respect, the Commissioner confused the issue before him. The question was whether the failure of the appellant to claim compensation within the prescribed time limit was occasioned by reasonable cause, not whether Mr Sproal's "lack of action" was an excuse and amounted to a reasonable cause.

17 The Commissioner also stated that "delay of a solicitor is not generally a reasonable cause for failure to make a claim and certainly ignorance of the law is neither a mistake or a reasonable cause". He cited no authority for the first part of that proposition. It is clear from the authorities concerning claims which have not been made within prescribed time limits, that delay of a solicitor is a factor which should be taken into account, but it is not a prima facie or general rule that a solicitor's delay will defeat the claim. There are many cases where a solicitor's delay or other fault has not prevented the making of a valid claim out of time. See for example Quinlivan v Portland Harbour Trust [1963] VicRp 5; [1963] VR 25; McDonald v Co-Operative Motors Ltd Unreported 57/1971; Black v City of South Melbourne [1963] VicRp 7; [1963] VR 34. There is, however, authority for the proposition that ignorance of the law alone is neither a mistake or a reasonable cause. See for example Roles v Pascall & Sons [1911] 1 KB 982; Murray v Baxter [1914] HCA 78; (1914) 18 CLR 622; McDonald v Co-Operative Motors Ltd (supra); Richardson v Dodderidge [1960] Tas SR 25; Green v Hansen and Yuncken [1923] VicLawRp 89; [1923] VLR 688.

18 The following passage from the reasons of the learned Commissioner also demonstrates error:

"He was acting on behalf of the infant in establishing that claim, and the suggestion from Green v Hansen & Yuncken (supra) is that different considerations apply when there is that obligation present. Thus where the solicitor was acting for the infant in establishing any claim he might have, his ignorance cannot excuse the failure to make the claim within the six month time period."

19 It was not open on the evidence to find that Mr Sproal was acting on behalf of the infant in establishing the infant's claim for workers compensation. Further, if the Commissioner was suggesting that Green v Hansen and Yuncken (supra) is authority for the proposition that where a solicitor is acting for an infant in establishing any workers compensation claim he might have, the solicitor's ignorance cannot excuse the failure to make the claim within the six months time period, he was wrong. Green v Hansen and Yuncken concerned a failure on the part of a six year old boy to claim workers compensation within a prescribed time limit. For all practical purposes, the legislation was the same as in this case. The Victorian Full Court held that in the factual circumstances of that case, the failure of the infant to make his claim within the prescribed time limit was occasioned by reasonable excuse, having regard to the infant's extreme young age and presumed mental and physical disabilities which necessarily prevented him from personally making his claim. The Court did not consider the case to be one of mere ignorance of law or rights. It pointed out that it was not dealing with the case of a solicitor having taken on himself to act for an infant in establishing his workers compensation claim but then omitted, through ignorance or negligence, to make the claim within the specified time. The Court said that in such circumstances "other considerations might be applicable". That dicta is a far cry from a proposition that a solicitor's "ignorance cannot excuse the failure to make the claim". I point out once again that Mr Sproal was not instructed to make a workers compensation claim for the appellant nor was he acting for the appellant in that regard. He was instructed only to attend to the administration of the estate and to recover for the infant his entitlements from the estate. I do not overlook however, that Mr Sproal may well have breached his professional duty by failing to advise the appellant's mother of the infant's workers compensation entitlement and to recommend that a claim for compensation should be made against the respondent on the infant's behalf.

20 It may have been through inelegant expression that the ultimate conclusion of the Commission was also stated erroneously. The Commissioner said that "I therefore find that the failure to make the claim within six months of the date of the death of the deceased does not amount to a reasonable cause or mistake within the meaning of Section 38 so as to excuse that failure". It was not a question of whether the failure excused itself, or whether the failure amounted to a reasonable excuse. The question at issue was whether the applicant's failure to make the claim within time "was occasioned by mistake ... or other reasonable cause". Section 38(1).

21 It is my conclusion that one of the reasons for some of the Commissioner's errors was that he treated himself as being in some way bound by decisions made in other cases, concerning what may amount to a "reasonable cause", without paying sufficient regard to the circumstance that those cases were decided on their own facts. Although such cases may provide assistance and guidance and may direct the mind to relevant considerations, ultimately each case falls to be determined on its own facts. That was stressed by Burbury CJ in McDonald v Co-Operative Motors Ltd unreported 57/1971 at 5 - 6, where his Honour pointed out that the expression "reasonable cause" is not a term of art and he declined to canvass cases in which courts had attempted some judicial exegesis of the statutory equivalent to s38(1). The Chief Justice pointed out that the duty of a court when a particular case falls for decision is to determine whether upon the whole of the evidence a cause for failure to make the claim, which can properly be characterised as reasonable, is established. His Honour cited two authorities. In Shotts Iron Coy Ltd v Fordyce [1930] AC 503 at 515, Lord Macmillan said:

"It is impossible to frame a definition of a reasonable cause for omitting to make a claim. Indeed it would be unreasonable to attempt the task. The decided cases on the subject, from the mass of which Mr MacRobert considerately drew only a few samples, furnish an unhappy instance of history teaching by examples, for the only lesson which they impart is that no one case can govern any other and that each case depends upon its own circumstances."

22 In Quinlivan v Portland Harbour Trust [1963] VicRp 5; [1963] VR 25 at 28, Scholl J said:

"I think the subsection means to refer to 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."

23 It is my opinion, and I have reached it without hesitation, that the only conclusion reasonably open on the evidence was that the failure of the seven year old appellant to claim compensation from the respondent within six months of his father's death, was occasioned by reasonable cause. The appellant's age "raises the strongest presumption of such mental and physical disabilities as must necessarily prevent him from personally making a claim". Green v Hansen and Yuncken [1923] VicLawRp 89; [1923] VLR 688 at 691. Adopting further the Full Court's words in that case, his "disabilities ... afford at least as reasonable an excuse or cause for his personal failure to make a claim as, for instance, the temporary disability of a workman arising from injury or illness". Neither his mother or Mr Sproal, who acted for him for about two months for the purpose of having his father's estate administered, realised that he had a personal entitlement to claim compensation from the respondent or that any time limit applied to him. In the circumstances it would be unreasonable to regard the infant's claim as invalid because of their failure, and particularly the failure of Mr Sproal, to be cognisant of his rights. I hold that the Commissioner's determination was not one that a Tribunal, acting judicially and fairly, and properly instructed as to the relevant law, could reasonably have made, and amounted to an error in point of law.

24 Counsel for the respondent submitted that the Commissioner should have had regard to the time which had elapsed since the expiration of the six months time limit and to the justice of the case generally. I reject that submission. It is contrary to authorities such as Murray v Baxter [1914] HCA 78; (1914) 18 CLR 622.

25 The final question for consideration is the order which I ought to make resolving the appeal. The effect of the Rules of the Supreme Court 1965, O76, rr54(1) and 68, was that on the hearing of an appeal from the Tribunal the Court or a judge might "give or make any judgment which ought to have been given or made by the" Tribunal "and to set aside, reverse, alter, or vary any judgment given or made by the" Tribunal. That would have been sufficient power for me to set aside the Tribunal's determination and order and to make a final determination and order myself. Electrolytic Zinc Co of Australasia Ltd v Fisher unreported 31/1989; Kaup v Breen unreported 71/1992; Pasminco-EZ Co v Quinn [1992] TASSC 48; (1992) 3 Tas R 214. However, the 1965 Rules have been replaced by the Supreme Court Rules 2000 and the new provisions relating to appeals are not identical. Nevertheless, I am satisfied that the Court has similar powers to what it had under the 1965 Rules. The effect of rr693(7) and 709(1) is that the Court or judge may make any order with respect to an appeal from a Tribunal which may be just for the purpose of ensuring the determination of the merits of the real question in controversy between the parties. That is sufficient power for me to determine the controversy between the appellant and the respondent, without remitting the case for rehearing by the same or another Commissioner.

26 For these reasons the determination of the Commissioner that there was no reasonable cause or mistake that could excuse the appellant's failure to make the claim within six months of the death of the worker is set aside and the Commissioner's order dismissing the reference is quashed. In their place I determine that the validity of the appellant's claim against the respondent for compensation under the Workers Rehabilitation and Compensation Act 1988 consequent upon the injuries suffered by Leslie John Baxter and his death on 13 January 1995 is not affected by his failure to make the claim for compensation within the period prescribed by the Act, s32(1)(b).