claim for compensation has been made -
(a) within 6 months after the occurrence of the injury; or
(b) in the case of death
- within 6 months after advice of
the death has been received by the claimant; provided that -
(i) the want of notice or
any defect or inaccuracy in the
notice shall not be a bar to the maintenance of the
proceedings if it is found in the proceedings
for the
settling of the claim, that the employer is not, or would
not if a notice or an amended notice were then given
and
the hearing postponed, be prejudiced in his defence by the
want, defect or inaccuracy, or that the want, defect or
inaccuracy was occasioned by mistake, absence from the
Territory or other reasonable cause; and
(ii) the failure to
make a claim within the period above
specified shall not be a bar to the maintenance of the
proceedings if it is found
that the failure was occasioned
by mistake, absence from the Territory or other reasonable
cause."
- It is to be observed
that under the provisions of this section, the
requirement that notice was to be given as soon as practicable after the
injury was
contained in the same provision which required that the notice be
given before the workman had voluntarily left the employment, and
in respect
of both criteria, the Act used the expression "... proceedings ... shall not
be maintainable unless ..." The fact that
the requirements for notice to be
given as soon as practicable is contained in s80(1) and is in a separate
provision to the requirement
to give notice before voluntarily leaving the
employment, is another reason for thinking that the requirement to give notice
is a
condition of entitlement rather than a mere procedural bar to recovery.
- Another possibility is that the difficulties of construction
which emerge
from s182(3) of the Act would largely disappear if s182 were to be construed,
not as a mere procedural provision, but
as a further condition of entitlement.
In this respect, it is well established that statutory provisions fixing times
within which
proceedings must be taken are not necessarily procedural only,
but may be part of the substantive law: see Byrnes v Groote Eylandt
Mining Co
Pty Ltd (1990) 19 NSWLR 13 at 24-25 per Kirby J; at 34-46 per Hope AJA. Thus
the question arises as to whether s182 should be considered as not merely
barring
the remedy, but in the circumstances envisaged by ss182(2) and (3) of
the Act, as reviving the remedy as well as imposing a further
condition upon
the right to compensation. It is true that no other interpretation would give
full effect to the breadth of language
of those sub-sections. The alternative
is to hold that the apparent breadth of those subsections is to be read down
in a way which
would make, at least in the case of s182(2), part of the
wording of that section with little work to do. It is difficult to see
why
the provisions of that sub-section relating to the lack of prejudice, for
example, should be construed to apply only to a late
notice. It is a well
settled rule of construction that the court should endeavour, if possible, to
give effect to every word of
a statute: Maxwell On Interpretation of Statutes,
12th ed, pp36-39; Craies On Statute Law, 7th ed, pp103-107; Pearce Statutory
Interpretation
in Australia, 3rd ed, para 2.7. Further, it may be possible in
practice to apply s182 in conformity with the provisions of s82 and
s85 in
such a way so as to avoid the consequence that proceedings may be determined
without the employer having an opportunity to
consider a claim and to deal
with it in accordance with s85. In circumstances where no claim had been made
at all, bearing in mind
that in those circumstances no notice would have been
given either, the court could, as a condition of the adjournment, order that
notice be given in the form of a claim under s85 so as to enable the
procedures required by s85 to be carried out. It is arguable
that such an
approach would accord with the relevant purposes of the Act as set out in the
preamble to the Act, viz, "to provide
financial compensation to workers
incapacitated from industrial injuries or disease and to dependants of workers
who die as the result
of such injuries or diseases." Finally, reliance may be
placed upon the general rule that the Work Health Act, being remedial
legislation,
should be given the construction most favourable to the worker
where there is ambiguity: see Foresight Pty Ltd v Maddick (1992) 79 NTR 17 at
- I am unable to accept this solution. The distinction between s80(1) and
s182 is clear from the language used by the
Act. There is nothing in s182 to
indicate anything else other than that the remedy is not barred if the worker
is able to bring
himself within one of the exceptions referred to in s182(2)
or (3). Further, the history of s182 supports this conclusion. The
procedural nature of this provision was recognised in Western Pastoral Company
v Eyeington [1971] HCA 73; (1971) 125 CLR 342 at 346-7 per Barwick CJ; at 351-2 per Walsh J.
The draftsman of the Act appears to have borrowed heavily upon s25 of the
Workmen's
Compensation Act, but, the decision to separate out the requirement
of notice and to place it in s80 appears to have been deliberate.
The
alternative constructions do not easily accord with the scheme of the Act for
the making of claims upon employers and having
them dealt with in the manner
contemplated by s85. Unlike the former Act, an employer whose employee
suffers a compensable injury
is required by the Act to take a real interest in
his employee's welfare. Section 61 of the Act, now repealed and replaced by
s75A
of the Act, requires an employer to provide suitable employment to an
injured worker or find suitable work with another employer
for him and to
participate in efforts to retrain the employee. The focus of the Act covers a
wide range: Part IV of the Act deals
with occupational health and safety, and
there is also a heavy emphasis on the rehabilitation of injured workers, not
merely on providing
a scheme for mere monetary compensation. Thus the Act
seeks to prevent injuries from occurring, as well as to rehabilitate those
who
are injured and to provide for monetary compensation. The shift of emphasis,
when compared with the former Act, is apparent
when it is realised that the
former Act provided solely for compensation for injured workers and for a
compulsory insurance scheme
to make sure that the compensation would be paid.
Under the former Act, an employer could ignore the welfare of his injured
worker
and leave the whole problem, including the problems associated with
compensation, to his insurers. This is plainly no longer the
case.
Consequently, the necessity for prompt notice of an injury is not, as it may
have been under the former Act, to merely ensure
that the employer (in reality
the insurer) is protected from stale demands: cf Thompson v Gould and Co Ltd
(1910) AC 409 at 413 per Lord Atkinson. It is directly in the interests of
all the parties, worker, insurer and employer, that notice of injury
is given
as soon as is practicable. The provisions of s25 of the former Act were, at
least by some judges, regarded as a mere technicality
and of slight
importance: cf Lingley v Thomas Firth and Sons Ltd at 662.
Rarely was an employee denied compensation under that provision. In my
opinion, the draftsman of the present Act, at least
so far as the giving of
notice was concerned, intended to recognise the real importance of notice.
Further, the requirement to give
notice "as soon as practicable" does not
operate unfairly upon a worker. Some of the matters referred to in s182, such
as mistake,
and absence from the Territory, would in any event be relevant to
a consideration of whether a notice had been given "as soon as
practicable,"
and it is to be noted that s80(1) does not use the expression 'as soon as
practicable after the injury,' so that the
fact that a worker was unaware that
he had an injury or disease conferring a right to compensation under the Act,
for example, is
amply catered for by the wording of the section. I will deal
more fully with the meaning to be given to this expression below.
In conclusion, I consider that the appellant's contention is correct, and
the difficulties created by s182 are the consequence of
the draftsman
suffering a lapse of concentration without considering the consequences of
s182(2) on the general scheme of the Act.
In my opinion, the subsection
stands alone and against the general intent of the Act, and runs contrary to
the meaning and intent
of s80(1) and s182(1) as I perceive them to be : cf
Billabong Management Pty Ltd v Tumminello Holdings Pty Ltd (unreported, Court
of Appeal, 11/6/92, per Asche CJ at 11, Kearney J at 12 and Angel J at 13).
24. However, the learned magistrate also made an error
extending the time for
the bringing of the proceedings. In my opinion such an order was neither
necessary nor possible. The Act
does not provide for a power to extend the
time for the bringing of proceedings. The consequence of a finding that no
notice was
given "as soon as practicable" is that there is no right to
compensation under the Act. The consequence of a finding that no claim
was
made within six months of the injury but that the want of such a claim was due
to a reasonable cause was that the proceedings
were not barred and the right
to maintain proceedings for compensation was not lost. No order extending
time was therefore possible
or necessary.
Was there evidence upon which the court could conclude that notice
had been given in accordance with s80?
25. The
court below found that on the facts the worker did give notice "as
soon as practicable." Reliance was placed upon McMillan v TIO
[1988] NTSC 58; (1988) 57 NTR
24, in which Gallop J construed this same phraseology as it appears in s31(1)
of the Motor Accidents (Compensation) Act. In that case, his Honour said (at
26-27):
"The phrase 'as soon as practicable' is designed to impose a
reasonably practical
time limit ... for making a claim under the
Act. What is a reasonably practicable time must vary according to
circumstances.
No doubt all the surrounding circumstances relative to
the claimant must be taken into consideration, as in every other case
where it falls to a tribunal to decide what is reasonable. Those
circumstances would include the physical and mental capacity
of the
injured person at the time in question, his degree of business
knowledge, the nature and time of his inquiries, the
result of such
inquiries, any difficulties encountered, the magnitude of any
injuries, whether they had stabilised, and such
similar matters."
26. In my opinion, this statement is not helpful in understanding the
requirements of s80(1) of the Work Health
Act. His Honour was there dealing
with a totally different statutory regime, and the requirement of of the
, with which his Honour was dealing, was a
requirement to make a claim under the Act "as soon as practicable after the
accident."
There is no requirement under that Act to give notice of an injury
as well as to make a claim, similar to that contained in the Work
Health Act.
27. The provisions of the Work Health Act relating to notice of injury and
the need to make a claim, have as their origins,
the provisions of s25 of the
Workers' Compensation Act. That section is similar to s53 of the New South
Wales Workers' Compensation
Act and to the provisions of the Workmens'
Compensation Act 1906 (UK). The meaning to be given to the requirement that
notice must
be given "as soon as practicable" had been well settled in England
by the early part of this century by decisions of both the House
of Lords and
the Court of Appeal. The relevant authorities are fully discussed in the
judgment of the Court of Appeal in Albison
v Newroyd Mill Ltd In that case, the court held that the important question was, "at what
time did the worker realise that he had suffered an injury
entitling him to
compensation under the Act?" But it is also clear that the realisation therein
referred to need not be a matter
of certainty; it is sufficient if the worker
realised he might have to make a claim. All three members of the court
purported to
follow Fenton v Owners of Ship Kelvin on this
question, another decision of the Court of Appeal, where the issue was
discussed only by Warrington LJ, who cited (at 486)
with approval the
observation of Fletcher Moulton LJ in Egerton v Moore at 315:
"In my opinion, it is clear that the workman ... was
suffering from something which he might have to claim to be a
consequence of the accident. It was his business then, at
once, to give notice."
28. Similarly, Atkin LJ in Albison v Newroyd
Mill Ltd, supra, at 177
observed:
"... the learned judge has, I think, misdirected himself,
because he has not taken into
account the question which is
the material question, whether at that time she had
reasonable ground for supposing that the
injury was such that
she might have to make a claim under the Act for compensation
?"
29. Sir Ernest Pollock MR also seems
to have been of the same mind, when he
observed, at 174, that the County Court Judge at first instance correctly
concluded that the
notice was not given as soon as practicable in that case
because the appellant had realised at a much earlier time "that the case
was
one out of which a claim for compensation might arise." Although the Master of
the Rolls was in dissent in that case, he did
not differ from the other
members of the court on the meaning to be given to the expression "as soon as
practicable."
30. Albison
v Newroyd Mill Ltd has been followed in Australia by the
Workers' Compensation Commission of New South Wales in Jordan v Metropolitan
Water, Sewerage and Drainage Board (1943) WCR 80 at 82.
31. Section 80(1) does not refer to the time of the injury as the reference
point after which notice must be given "as soon as practicable." Therefore the
date of the injury is not necessarily the appropriate
reference from which
that time is to be measured. Section 182(1)(a) requires claims to be made
within six months of an injury or
in the case of disease, of the incapacity
arising from a disease. This might suggest that the reference point for the
giving of notice
in the case of an injury is the date of the injury, and the
reference point for a disease is the date of incapacity, but I do not
think
that s80(1) can be so construed. In my opinion the relevant reference point
will often be the date that financial loss begins
to occur. If an injury is
not immediately productive of financial loss, it may not be practicable for a
worker to give notice if
the injury appears to be minor and not likely to lead
to a claim. So much was recognised by Atkin LJ in Albison v Newroyd Mill Ltd
at 177 when his Lordship observed:
"It is quite plain that if claims for compensation by
workmen, whenever they receive slight
and most trivial
injuries, depend on notice being given at once, the object of
the Act would be defeated, and, more than that,
the employers
and their insurance companies would be worried with a great
many notices which, I think, on the whole they would
be sorry
to receive. At any rate, that is not the law."
32. The question of whether or not a worker has failed to give notice
as soon
as practicable is a question of law. The facts which bear upon this question
are for the Work Health Court to determine,
but the ultimate conclusion is
necessarily a question of law. As Lord Parker observed in Farmer v Cotton
Trustee at 932:
"... where all the material facts are fully found, and the
only question is whether the facts are such as to bring
the
case within the provisions properly construed of some
statutory enactment, the question is one of law only."
33. This
dictum has been followed by Asche CJ in Nader Jones v ANZ Executors
and Trustees Pty Ltd (unreported, 12/8/86) and by Kearney J in
John Holland
Constructions Pty Ltd v Hall ; at 26. In this case, all of the
relevant facts were contained in an affidavit sworn by the respondent, who was
not subjected to cross-examination.
The learned magistrate accepted this
affidavit as she was bound to do. The facts disclosed therein show that the
respondent left
the appellant's employ in December 1989 because of his back
pain and on the advice of his treating specialist. After he had ceased
work,
the severity of his pain subsided gradually but his back problems had still
not resolved. He sought legal advice from the
Australian Legal Aid Office in
February 1990. The nature of the advice given, if any, is not disclosed.
Prior to this time, he states
that he had been attempting to negotiate with
the appellant's insurer direct, but no details of his attempts are given. I
note that
he had previously successfully claimed workers compensation from
Bridgestone Tyre Service as a result of a back injury in 1988.
It appears
from the affidavit material that the insurer of both Bridgestone and the
appellants is the same insurer. In April 1990,
the respondent was referred by
the Australian Legal Aid Office to his present solicitors. He was not then
advised that he may have
a claim against the appellants. This is not
improbable; he may have thought that his claim lay against Bridgestone,
especially as
there was no incident giving rise to his claim, which appeared
to be a gradual worsening of his original back trouble. However,
his
solicitor arranged for him to complete a claim form for compensation against
the appellants and arranged for him to be sent to
the Industrial
Rehabilitation Service and he attended numerous interviews and assessments
throughout the first half of 1990. Eventually
he considered that he was able
to look for work. In August 1990 he made arrangements to be accepted into the
Driver Training Course
run by the Taxi Council for the Northern Territory to
commence on 22 September 1990. He does not say that he attended that course
or that he ever worked as a taxi driver. He states that the claim form was
not lodged immediately because he believes that his solicitor
wished to
complete investigations into his residual earning capacity. During 1990, he
attended numerous medical practitioners for
the purpose of preparing
medico-legal reports to support his case. He claims that these reports were
needed to enable his solicitors
to formulate his claim as accurately as
possible, and to decide whether he should pursue his claim against the
respondents. The last
of these reports (none of which were exhibited) was
prepared "in late 1990." In November 1990, the solicitor handling his file
left
the firm due to illness, and a new solicitor was engaged, but he was
unable to attend to the matter immediately "due to increased
pressure of
work." The respondent says also that he discussed the possibility of a claim
against the respondents with his solicitor
shortly after instructing him but
that he did not give instructions to make the claim until November or December
1990. He further
states that:
"The reason for this is that George Stevens (one of the
appellants) had taken me on in good faith and it wouldn't
be
right to claim against him although there was a recurrence of
symptoms whilst working for him which caused me to stop my
work. It was not until late 1990 that I came to realise that
in the circumstances my condition was not going to completely
settle and that I was obliged to pursue this claim to protect
my interests."
34. At some stage prior to seeing his solicitors
in April 1990, he obtained
some "very casual" employment working in a video store. His hours increased
apparently some time shortly
prior to July 1991. It does not appear that he
obtained any other work.
35. The respondent's affidavit does not state whether he
was in receipt of
any other income, whether unemployment benefits or otherwise, since December
1989. Nor does it say that the respondent
was not aware that he needed to
give his employers notice of injury as soon as practicable, or make his claim
within six months,
although I do not suggest that ignorance of the law itself
is a relevant consideration: cf Roles v Pascall and Sons ;
Murray v Baxter ; ; Black v City of South Melbourne ; As mentioned previously, no notice of any injury was made until the claim
form was received by the employers' insurer on 4 February
1991, some fourteen
months after the respondent had left the appellants' employ.
36. The learned magistrate concluded as follows:
"With the benefit of hindsight Mr Maddick's thinking on the
whole issue was somewhat muddled and he could have acted with