Friends' School Inc v Edmiston [2014] TASSC 68;

Sullivan v Hobart City Council and MMI Insurance Limited [1999] TASSC 101;

State of Tasmania v Muir-Wilson [2001] TASSC 30;

Leech v Melbourne and Metropolitan Tramways Board [1958] VicRp 64; [1958] VR 398;

Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100;

Tasmania v Pilling [2020] TASSC 13;

St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90.

The decision has been anonymised for the purpose of publication.

1. The worker is a business systems analyst at Karingal St Laurence Limited (Karingal). She injured her right shoulder and made a claim for compensation under the Workers Rehabilitation and Compensation Act 1988 (the Act). Karingal disputes the claim under s 81A on the basis that the worker failed to provide notice of her injury as soon as practicable as required by s 32(1)(a) and such failure is not excused by s 37. The employer also disputes that the worker gave notice of her work-related injury on 16 July 2025, however this point does not appear to be disputed by the worker.

1. The Employers liability to pay compensation arises from s 25 of the Act:

25. Liability of employers to compensate workers for injuries

(a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or

(b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A) -his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act -

1. The test for determining whether a reasonably arguable case exists has been set out by Evans J in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90 at [10] as follows:

A reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected.

2. Section 32 of the Act relevantly provides:

32. Notice of injury and claim for compensation > > (1) Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless -

(a) notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer of the worker or a person referred to in section 33(1)(b)

...

1. Section 37 provides an exception to s 32(1). It states:

37. Effect of failure to give notice of injury, &c. > > (1) The failure to give notice of injury in accordance with section 32 (1) (a) or any defect or inaccuracy in such a notice does not affect the worker's right to claim compensation under this Act if -

(a) the failure or defect or inaccuracy was occasioned by mistake, absence from the State of the worker or other reasonable cause; and

(b) it is found in proceedings relating to the worker's right to claim compensation under this Act that the employer's defence is not prejudiced by reason of the failure.

(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 the worker believes to be a payment of compensation under this Act; and

(b) any representation that is made to a worker that the worker believes is made by or on behalf of the worker's 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 give notice of injury in accordance with section 32 (1) (a) may be referred, by either party to the dispute, to the Tribunal for determination.

1. Sections 32 and 37 was considered in Tasmania v Pilling [2020] TASSC 13 at [41] and [43] where Brett J held:

[41] For the purposes of s 81A, an employer will not establish a reasonably arguable case that it is not liable to pay compensation because of the worker's failure to give notice of injury as soon as practicable, unless it establishes a reasonable argument that s 37 will not apply to the relevant failure. Section 32 prescribes procedural preconditions for the payment of compensation, where the employer's liability in that regard has arisen under s 25. Fishpool v Incat Tasmania Pty Ltd [2013] TASFC 6. However, the failure to give notice under s 32(1)(a) will not affect the worker's entitlement to compensation if the conditions in s 37 are established. This is a prescribed outcome, it is not a matter of discretion. Accordingly, it is impossible to assess the effect of the failure to give notice unless a determination is made about the applicability of s 37.

I agree that the worker does have the onus of establishing the conditions specified in s 37, but this is not a reason to depart from the established principle that on a s 81A hearing, the employer has the onus of establishing a reasonably arguable case. See Skilled Group Ltd v Anning [2015] TASSC 18, 23 Tas R 463; Lamont v MRD Supermarkets Pty Ltd [2016] TASSC 16, 24 Tas R 234. This allocation of onus mirrors that applicable in respect of the claim for compensation generally.

[43] In a case where the circumstances of the case appear to demonstrate the probability that the deficiency of notice has arisen from a mistake or other reasonable cause, the absence of any evidence of prejudice to the employer may justify a conclusion that the employer has not shown an arguable case that s 37 does not apply to the deficiency of notice.

1. On 2 October 2025, the worker made a claim for compensation in relation to an injury that was said to have occurred on 16 July 2025. On the claim form the worker outlined that her injury occurred in the following circumstances:

While performing my normal work duties at the computer, I was required to sit for extended periods without adequate variation in posture. The prolonged sitting, combined with repetitive strain from workstation setup, has directly caused a significant injury to my right AC joint. This injury has been medically diagnosed and confirmed by my GP and physiotherapist as work-related. The condition has progressively worsened due to the continuous nature of my duties, resulting in severe pain and reduced shoulder function.

1. The Employer filed with its application a signed statement provided by Ms Jodie Ma Chong, National Manager - Injury Management.
2. In her statement Ms Ma Chong asserts that:
   • She spoke with Mr Mudabir Ahmed who confirmed that he did not receive notice of a work-related injury from the worker on 16 July 2025. Mr Ahmed said that the worker had told him that she had pain in her right shoulder but did not say it was because of work.
   • The first time the employer received notice that the worker's injury was work related was on 2 October 2025.
   • Had the employer been informed that the worker's injury was work related they would have immediately supported the worker in seeking treatment and done what was necessary to prevent her condition from worsening.
   • The employer has a well-established injury management process and they lost the opportunity to properly manage the alleged injury or investigate what happened in July 2025.

1. In her statement, Ms Ma Chong lists the usual investigations as including the following:

(a) Facilitating immediate access to treatment for the worker;

(g) Seeking input from independent medical experts.

1. The worker filed with the Tribunal a number of documents including a proof of evidence from Dr Andy Chua, a statement from the worker, a receipt for a standing desk, imaging reports, and certificates from the worker's physiotherapist.
2. In the worker's statement, she details that on 16 July 2025, she advised her supervisor, Mr Mudabir Ahmed that she had had been experiencing right shoulder pain for the past few days and that she had an appointment booked with the doctor later that day. It does not appear to be disputed that whilst she provided notice of her injury on 16 July 2025, she did not specify that the injury was work related.
3. At paragraphs 10 to 13 of the worker's statement, she relevantly says:

On 16 July 2025, I made the Employer aware, when I was at the workplace of the pain that I was experiencing in my right shoulder. I told my supervisor Mudabir Ahmed (Mr Ahmed) that I had been having back and right shoulder pain for the last few days, and I had an appointment with a doctor that day.

I asked Mr Ahmed if I could take some time off that day to go to the doctor. Mr Ahmed told me that was find and to let him know how I went with the GP.

I honestly believed that as I was telling him this during work hours and he wanted to know how I went at the GP, that we were on the same page that this was a work-related injury

1. The worker further outlines in her statement that she had four physiotherapy sessions between 21 July 2025 and 30 September 2025 and provided three certificates to her employer from her physiotherapist over that period.
2. The worker outlines the investigation and management of her injury which was undertaken by her physiotherapist and GP which included workplace adjustments, x-rays and an ultrasound.
3. In addition to her own statement, the worker also relies on the proof of evidence from her GP, Dr Andy Chua. Dr Chua's evidence indicates that based on his clinical opinion the approach that he suggested facilitated immediate access to treatment; obtained contemporaneous imaging, assisted in the ability of the worker to return back to work promptly, assisted in providing the correct restrictions at the workplace to assist in managing the injury and sought the input of relevant medical management including a physiotherapist to assist with the management of the injury.

1. It does not appear to be disputed that the worker failed to give notice of her injury as soon as is practicable. The worker advised her employer that she had an injury to her right shoulder on 16 July 2025 but failed to advise her employer that it was a work-related injury until 2 October 2026.
2. The issue for determination by the Tribunal is whether it is reasonably arguable that s 37 is not engaged. This requires consideration of whether the worker's failure to give notice in accordance with s 32(1)(a) was occasioned by mistake or other reasonable cause and, if so, whether the employer's defence has been prejudiced by reason of that failure.

1. The employer argues that the worker's failure to give notice of her injury as soon as practicable cannot be excused by mistake or other reasonable cause. The employer submits that the worker was not mistaken but rather ignorant of the law and the notice requirements under the Act. In support of its submission, the Employer relies on the reasoning of Underwood CJ in Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100 where is was held that ignorance of the law does not amount to a mistake.
2. The employer further contends that its defence has been prejudiced by the worker's failure to give notice at the appropriate time. It argues that because it was not appropriately notified, it was deprived of the opportunity to implement an injury management process that, in its view, would have prevented the worker's injury from deteriorating. This would have included the investigations the employer would have undertaken had they had they been notified as outlined in Ms Ma Chong's statement, including obtaining 'baseline evidence' from when the injury occurred and arranging an ergonomic assessment.

1. The worker submits that her failure to give notice of their injury as soon as practicable can be excused on the basis of mistake. She says that she believed she had provided her employer with notice of her injury on 16 July 2025. The worker contends that this is supported by the fact that she informed her employer of the outcome of her consultation with her GP and subsequently provided her employer with physiotherapy certificates outlining the restrictions and modifications required for her to continue with her duties.
2. The worker further submits that the employer has not suffered prejudice as a result of the worker's delay in providing notice. She argues that the interventions identified by Ms Ma Chong are 'mere conjecture', and the employer has not suffered any prejudice with respect to their ability to manage her injury or duties or undertake medical investigations. The worker further submits that the employer had the opportunity to undertake an ergonomic assessment but failed to do so. Finally, the worker submits that the worker's GP, Dr Chua facilitated immediate access to treatment and there is no prejudice to the employer as all steps they claim they would have taken have been actioned.

1. As Brett J Observed in in Tasmania v Pilling [2020] TASSC 13 at [41], a failure to give notice under s 32(1)(a) will not affect the worker's entitlement to compensation if the conditions under s 37 are established.

1. The employer's argument is that the worker was not mistaken but ignorant of the requirements contained in s 33 of the Act. As this is a referral under s 81A, the Employer bears the onus of establishing that this is reasonably arguable.
2. In substance, it is the employer's submission that the worker didn't know what she was required to do in accordance with s 33. However, the employer has not provided any evidence in support of this position. Relevant to this issue is the evidence from the employer's statement at par 12:

I honestly believed that as I was telling him this during work hours and he wanted to know how I went at the GP, that we were on the same page that this was a work-related injury.

3. In Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100 at [35] his Honour, referred to the decision of Leech v Melbourne and Metropolitan Tramways Board [1958] VicRp 64; [1958] VR 398, where it was held that "To make a mistake about a matter a person must apply his mind to the matter and arrive at a wrong result.".
4. As held by the full court in State of Tasmania v Muir-Wilson [2001] TASSC 30 at [6] 'when a failure to give notice at the appropriate time is occasioned by a genuine or honest mistake, it does not matter has reasonable or unreasonable a workers mistake is'.
5. There is no evidence before me to suggest that the worker was not aware that she was required to give notice to her employer and merely ignorant of the law as asserted by the employer. It is sufficient that any mistake was genuine or honest; it need not be reasonable. There is no evidence to suggest that the worker was not aware of the obligation to give notice under s 33 of the Act.
6. Having regard to the workers evidence of her belief that she had notified the employer that her injury was work related and the lack of evidence provided by the employer that the worker was ignorant of the law, I am not satisfied that it is reasonably arguable that s 37(a) is not available to the worker.

1. If satisfied that s 37(a) is available to the worker, the Tribunal still needs to be satisfied that the employers defence is not prejudiced by the worker failure to give notice in accordance with s 37(b).

1. The employer submits that its defence has been prejudice by the workers failure, as the employer was not afforded the opportunity to implement an injury management process, which they say would have ensured the workers injury would not worsen.

1. As held by Chief Justice Cox in Sullivan v Hobart City Council (Sullivan) at [12]:

Counsel for the respondent submitted that the onus lay on the worker to show that the respondent's defence was not prejudiced by the failure to give the notice until 23 December 1997. That is certainly so, but the burden is not a heavy one and in the absence of any evidence of prejudice to the respondent and in the circumstances of the case, including the short period of time after the termination of his employment before appropriate notice was given by the worker, a finding that no prejudice existed would have been fully justified.

2. The worker submits that the employer has not suffered any prejudice with respect to their ability to manage her injury or duties, nor has the Employer been prevented from undertaking medical investigations. A proof of evidence has been filed by the worker from her GP Dr Andy Chua. Dr Chua's evidence indicates that based on his clinical opinion the approach that he suggested facilitated immediate access to treatment; obtained contemporaneous imaging, assisted in the ability of the worker to return back to work promptly, assisted in providing the correct restrictions at the workplace to assist in managing the injury and sought the input of relevant medical management including a physiotherapist to assist with the management of the injury. The evidence before the Tribunal including certificates from the workers physiotherapist, X-ray and imaging reports supports Dr Chua's evidence.

1. The evidence indicates there is a standard process undertaken when the employer receives a claim as outlined in Ms Ma Chong's email to the worker on 2 October 2025. There is also evidence to indicate that the employer was not able undertake some of standard investigations and processes as outlined in Ms Ma Chong's statement. In light of Ms Ma Chong's email of 2 October 2025, it is reasonably arguable the employer would have undertaken the investigations described and that this is not 'mere conjecture' as per Cox CJ in Sullivan.

1. However, there is no evidence to suggest that it is reasonably arguable that the employer suffered prejudice as a result of not being able to undertake those investigations or manage the workers injury or duties. There is no evidence to suggest that had the employer be able to undertake those investigations or management that they would have any impact on the employer's defence.

1. The employer contends that thought the worker was first treated by Dr Chua 19 August 2025, she had not been seen by him prior to then. However, there is also undisputed evidence that the worker first saw a GP (albeit a locum GP) on 16 July 2025, who then referred her to a physiotherapist. There is no evidence to suggest that the worker's injury was inappropriately managed.

1. There is no reason to infer that the employer could have made any difference to the workers injury if the worker had given notice at an earlier time: see Friends School Inc v Edminston [2014] TASSC 68 at [41]. Without such evidence, I cannot be satisfied that it is reasonably arguable that s 37(1)(b) is not available.

1. It is not disputed that the worker failed to given notice of injury as soon as practicable in accordance with s 32(1)(a). However, I am not satisfied that it is reasonably arguable that s 37 does not apply in respect to the worker's failure to give notice. For the reasons outlined I am not satisfied the employer has discharged the onus of proof and that the grounds raised are reasonably arguable. Accordingly, I make orders pursuant to s 81A(3)(a) and (b).