WRIGHT J On or about 5 April 1994, the appellant lodged a claim for workers compensation in the prescribed form with the respondent's licensed insurer claiming that she had suffered an injury or disease which she described as "sexual harassment" which she had first noticed or identified on 6 December 1993. She ceased work on 7 December 1993 and on 17 June 1994 she lodged a further claim for compensation. The reasons for her lodging a second claim were explained to us during the course of the appeal but are irrelevant for present purposes. In the second claim the appellant described the alleged injury or disease as being "stress due to sexual harassment" and that there had been "continuous sexual harassment September - December 1993".

2. The learned Workers Compensation Commissioner dismissed the appellant's application on 10 November 1994 having determined that she had not given notice of the injury as required by the Workers Compensation Act 1988, s32(1)(a). The appellant appealed to the Supreme Court pursuant to the provisions of the Act, s63. This appeal was heard by Zeeman J (B62/1994, unreported, available on SCALE)on 5 December 1994 and on 9 December 1994 his Honour allowed the appeal and ordered that the learned Commissioner's order be quashed. In reaching that conclusion his Honour said:

"The learned commissioner was correct in concluding that

neither of the notices purportedly given amounted to a

of injury for the purposes of the Act. He could not have

come to any other conclusion. Nevertheless, for the reasons

which I have already expressed, it does not follow from that

that he was right in dismissing the appellant's application

for compensation. Accordingly, the appeal is allowed and the

order of the learned commissioner is quashed."

3. By notice of appeal dated 8 February 1995, the appellant sought to challenge his Honour's determination that no valid notice of injury for the purposes of the Act had been given by or on behalf of the appellant. The original grounds of appeal to this Court were as follows:

"(1) The learned Judge erred in failing to determine

section 33(1)(d) of the Act ought be construed so as to

include not only the express content of an alleged notice of

injury, but also the existing state of knowledge of an

employer at the time such notice was given.

(2) In failing to so determine the learned Judge erred in

failing to determine just what, given the uncontradicted

facts of the case, the Respondent was on notice of, and

whether that satisfied the requirements of section 32(1)(a).

(3) The learned Judge failed to make any or any adequate

findings as to what the state of knowledge of the Respondent

was at the time the notices of injury were given by the

Appellant.

(4) In having failed to make any or any adequate findings

as to what the state of knowledge of the Respondent was at

the time the notices of injury were given, the learned Judge

erred in concluding that such notice as was given by the

Appellant amounted to no more than a communication of an

unwillingness to continue to provide services for 'W' by

reason of his unacceptable and offensive conduct."

4. At the commencement of the hearing of the appeal counsel for the appellant, Mr Dockray, applied to amend the notice of appeal by adding a fifth ground as follows:

"(5) The learned trial Judge erred in failing to determine

that on or about 7th December 1993 the Appellant gave an

effective notice of injury to the Respondent in accordance

with section 32(1)(a) of the Act."

The amendment was allowed without objection and thereafter the appeal proceeded and argument was presented on the basis that ground 5 effectively encompassed all of the other grounds of appeal.

5. At the conclusion of Mr Dockray's argument, without calling upon counsel for the respondent, the Court determined that the appeal should be dismissed. What follows are my reasons for concurring in that order.

6. An injured worker is ineligible for compensation unless he or she has given notice of the relevant injury as soon as practicable after the occurrence thereof (Workers Compensation Act 1988, s32(1)(a)). Such notice may be given orally or in writing (s33(1)(a)) and must include the nature of the injury, the date of its occurrence and its cause (s33(1)(d)).

7. The first of these three particulars need not be stated with the precision of a medical diagnosis but, on the other hand, the essential kind, quality or characteristic of the injury must be disclosed. It will suffice to describe the injury in terms of manifest symptoms so long as the precipitating event is also identified.

8. The appellant was employed by the respondent. Between September and December 1993, she was caring for a man (W) afflicted with paraplegia. She found his behaviour objectionable and unacceptable. She said he spoke to her suggestively and touched himself in a sexual way when naked. She found herself unable to cope with his behaviour. Evidence was given during the proceedings before the Workers Compensation Commissioner that when she terminated her employment as a consequence of these matters she was suffering symptoms of severe anxiety, including headaches and nausea which had been caused by W's conduct whilst she was performing her duties of employment. Acceptance of this evidence would have justified findings that she had been incapacitated for work by an injury which was a disease and that, as a consequence, subject to compliance with the Act's requirements as to notice, a right to compensation existed.

9. It was claimed on behalf of the appellant that she had given notice of injury as required by the Act, either to W during a conversation which she had with him on 7 December 1993, or to Mrs Davis, an officer of the respondent to whom she spoke on at least two occasions between 7 December and 25 December 1993. The respondent does not challenge the proposition that both W and Mrs Davis were persons to whom valid notice could have been given pursuant to the Act, s33(1)(b)(iv). The appellant said in evidence before the learned Commissioner that when she was speaking to W on 7 December, "I said that I couldn't cope with his behaviour. I said that he was 'coming on' to me and I said I didn't know what to do. I said his behaviour made me feel very uncomfortable and I asked him for a holiday and said I needed a break. I said I can't do his personal duties and I accused him of fantasising about me."

10. The appellant also gave evidence of what she said to Mrs Davis. She said:

"It took me a while to tell her, um, that Michael had been

sexually harassing me and Mrs Davis said she couldn't help

11. In dealing with this evidence the learned Commissioner said:

"... on the evidence of the worker as to what was said to

client (W) by her, I am not satisfied that this amounted to

notice of injury within the meaning of the Act. The

requirement is obviously designed to provide the employer

with the opportunity to investigate the circumstances

surrounding the occurrence of the injury so as to limit the

prejudice that might be suffered should this notice not be

provided. The notice must be sufficient to put a reasonable

employer on notice as to the possibility of a claim. The

notification is required to include 'the nature of the

injury'. This requires some description of the qualities,

kind or sort of thing that has allegedly happened to the

worker. A medical diagnosis is not required, but an

indication or description of what is wrong either physically

or mentally with a person is necessary. There must be a

description of something happening, occurring or becoming

apparent to the worker which has affected her well being and

which is notified to the employer and can be recorded as

required by Section 33(2). The worker said in cross

examination that at the time of this conversation with the

client she 'felt terrible', 'felt her head could explode',

'felt ashamed', 'suffered headaches', 'had a changed sleep

pattern' and 'was prone to cry a lot', but none of these

things were said to the client. Her conversation with him

related more to her inability to cope with the work, her

anger at his behaviour, and that she could not work for him

because of that behaviour.

There was on the evidence no mention of stress, the physical

manifestations of some psychological problem or of any

physical or mental condition or ailment. The notification

could reasonably be seen as that of a person giving up

employment due to their personal inability to put up with

nature of the duties or the environment in which the work

performed. I am sure many people give up work due to their

own decision that the work is too hard, too dirty, too

demeaning or many other reasons. The submission that the

description of an inability to cope or the request for a

break was notice of injury cannot be accepted. There must

notification of something physically or mentally wrong with

her and her inability to cope can be seen merely as a

possible sign or symptom of what was wrong, (refer Hevey -v-

Leonard [1976] VicRp 64; (1976) VR 624 at 632), but does not describe the

nature of the condition. Without attempting to suggest what

would suffice as notice in these circumstances, it ought

indicate the kind of injury for example mentioning being

sick, crying, headaches, inability to sleep and the need to

visit a doctor would have assisted her case. It must be

as to give the employer a fair indication of what has been

suffered by the worker."

12. In commenting upon the evidence of the conversations between the appellant and W, and the appellant and Mrs Davis, Zeeman J, said at 3 of his reasons:

"By neither oral communication did the appellant expressly

convey the nature of the injury allegedly suffered by her,

the date on which it occurred or the cause thereof. More

importantly, on a proper construction of what the appellant

said, she made no express assertion that she had suffered

"Such notice as was given by the appellant amounted to no

more than a communication of an unwillingness to continue to

provide services for W by reason of his unacceptable and

offensive conduct. There is a marked distinction between an

unwillingness to work because of unattractive features of

work and an inability to work by reason of an injury

as a result of the effect upon the worker of such features."

13. It was not suggested that there were other conversations or documents in which a relevant notice had been given by the appellant. There was no mention by the appellant in any of these conversations that she was stressed or that she had any manifestation of a physical or psychological ailment.

14. Mr Dockray sought to persuade this Court that, as s33 imposes an obligation upon a worker to give notice of any injury which may not be sufficiently incapacitating to justify an actual claim for compensation at the time it is sustained, it may often be difficult for a worker to comply with the provisions of the section if he or she is unaware of the seriousness of the injury at that time. This may be so, he submitted, particularly in the case of a disease which, by virtue of s3, is included as an injury. It may be noted however that the requirement of s32(1)(a) is that the notice be given "as soon as practicable" after the occurrence of the injury and in such circumstances there would be considerable scope for the injured worker to contend in any relevant proceedings that it had not been practicable to give the requisite notice until the injury had manifested symptoms which could reasonably lead to the conclusion that a claim for compensation was possible, or in the case of a disease, that it had progressed sufficiently to enable medical diagnosis.

15. Mr Dockray also argued that under s3 "injury" includes "a disease" and "disease" means "any ailment, disorder, defect or morbid condition, whether of sudden or gradual development". Then, by reference to dictionary definitions, he suggested that an ailment is to be "in trouble" or "suffering" and that a disorder includes "confusion" and "disturbance of the mind or feelings". From this progressive extrapolation he extracted the proposition that in her conversations with W and Mrs Davis, viewed either singly or collectively, the appellant had in fact given notice of an injury as she had stated that she "could not cope" indicating thereby that she was confused and her mind was disturbed. To me this is an unacceptable argument. If acceded to it would require or permit a finding of adequate notice in any case where a worker had expressed worry or concern over an incident at work however minor or insignificant. By so saying I do not mean to trivialise the plaintiff's complaints or the disorder which she claims to have developed, I simply seek to emphasise that her expressions of concern to W and Mrs Davis fell short of the requirements for notice prescribed by the Act.

16. There is another difficulty in Mr Dockray's submissions. Compensation under the Act is not payable unless the worker sustains total or partial incapacity for work, sustains a serious injury which is compensable under s71, incurs medical or other expenses of a like kind under s75, or dies. Consequently it may be seen that the focus of the Act is upon work related injuries or diseases with the potential to cause expense to the employer from one or more of these causes. A worker who merely expresses dissatisfaction, dismay or even distress to an employer concerning her working conditions or the behaviour of her employer or co-workers, does not thereby put her employer on notice of a potential claim for compensation and does not provide the requisite statutory notice of injury or disease.

17. A worker's anger or disgust, however forcefully expressed, will rarely, if ever, constitute notice of an injury. The remedial purpose of workers compensation legislation, whilst possibly helpful in interpreting difficult or obscure statutory provisions in favour of an injured worker, cannot prevail where the words of the Act are free from ambiguity. The Act plainly requires actual notice to one of the persons referred to in s33(1)(b) accompanied by sufficient detail for the employer to identify the causative event, the injurious consequence thereof and the date on which it occurred. What will suffice to fulfil these requirements will obviously vary from case to case. What can be said with certainty in the present circumstances is that, upon the evidence given before the Commissioner, a finding that the appellant had actually given notice as required by s33(1)(d), could not have been made. I am therefore of the same opinion as both the Commissioner and Zeeman J on this issue and, consequently, I am of the opinion that the appeal from Zeeman J's order must be dismissed.

18. All is not necessarily lost to the appellant. She may be able to persuade the Commissioner that one or other of her claims for compensation dated 5 April and 17 June 1994 respectively, was a valid and adequate notice for the purposes of s32.

SLICER J The appellant was employed by the respondent as an attendant carer required to provide services to a patient at his home. On 7 December 1993 she completed her duties at the patient's home, left and did not return. She voluntarily ceased her employment on 21 December 1993. On 5 April 1994 she lodged a claim for workers compensation in the prescribed form with the respondent's licensed insurer claiming that she suffered from an injury which she described as "sexual harassment". On 14 June 1993 a more comprehensive claim was lodged describing the injury as being "stress due to sexual harassment". In all other respects the claim of the appellant is capable of consideration as a compensable injury in accordance with the provisions of the Workers Compensation Act 1988 ("the Act"). She was and remains entitled to apply to have her claim considered in accordance with the provisions of the Act, PtVI, Div3.

2. The appeal is confined to one issue. The appellant contends that her words and conduct as expressed to the patient and the representative of the respondent constituted notice sufficient to comply with the requirements of the Act, s33(1)(d). The relevant portions of s33 provide:

"33 (1) Notice of an injury

(a) may be given orally or in writing;

(b) shall be given to

...

(iv) a person having authority or apparently having

authority to receive such a notice on behalf of the

employer;

...

(d) shall include the nature of the injury, the date on

which the injury occurred, and the cause of the injury."

3. The appellant gave evidence to the Commissioner that she had been subjected to unwarranted and offensive attention of a sexual nature by the patient over a period of time. Given the nature of the tasks she was required to perform for a paraplegic, it is readily understandable that she was placed in a vulnerable position which, if accompanied by comment, suggestion and innuendo, made her task invidious. She had sought medical advice on 6 December 1993. She told the Commissioner that she was unable to cope with the patient's conduct and that on the evening of 7 December she raised her concerns with the patient in the following terms:

"I walked over to the table and I said that I couldn't cope

with his behaviour. I said that he was coming on to me and

said I didn't know what to do and I said his behaviour made

me feel very uncomfortable and I asked him for a holiday and

I said I needed a break I said I can't do his personal

and I accused him of fantasising about me and he said that

(sic) why would he want to fantasise about me and later on

admitted that his behaviour was wrong and then he put it

to my age how I couldn't cope with his um behaviour that I

wasn't old enough and how um Anne how old she is and she's

been around and um how his behaviour is acceptable to her."

"... then I said to him I couldn't attend to his personal

duties and he said if I couldn't attend to his personal

duties I didn't have a job. I said couldn't I have a break

from his personal duties for a while and then he said no."

She completed her duties and left soon thereafter, never to return. At no time did the appellant tell the patient that she had sought medical advice or treatment. The patient later advised the representative of the respondent that she had left the patient's care and also that:

"... I was gonna (sic) go back cos (sic) I didn't know what

to do cos (sic) I didn't have a job ..."

"Mrs Davis said I couldn't go back because I couldn't attend

to his personal duties or couldn't attend to his personal

duties I didn't have a job and if I went back I wouldn't

a leg to stand on when I put in my complaint against the

sexual harassment."

The appellant did not tell the respondent's representative that she was ill nor did she describe any symptoms or "ill effects" suffered as a result of the conduct of the patient.

4. The appellant entered into correspondence with the Human Rights Commission and subsequently obtained legal advice which resulted in the lodging of the claim of 5 April 1994.

5. The learned primary judge determined (B62/1994) at 3 that:

"By neither oral communication did the appellant expressly

convey the nature of the injury allegedly suffered by her,

the date on which it occurred or the cause thereof. More

importantly, on a proper construction of what the appellant

said, she made no express assertion that she had suffered

and concluded that notice required by s33(1)(d) had not been given.

6. I agree with that conclusion. Accepting that the appeal to the primary judge involved more than an appeal on a question of a finding of fact, it is difficult to infer that the totality of the words and conduct of the appellant in any way conveyed the existence of an injury. An employee ought not be required to specify the precise nature of the injury in medical terms but the notice must convey sufficient information which alerts the employer to the existence of a condition which is capable of being understood as constituting a physical or psychological state of detriment. Given the wide definition of injury notice may be expressed the widest of terms (see Smith v Attorney-General for the State of Tasmania A118/1994). But in the circumstances of this case the information conveyed was consistent with a state of anger, indignation and repugnance felt as a consequence of offensive conduct. The disinclination to return to attend to the patient could be seen as a reasonable reaction to unjustifiable conduct. The appellant may well have cause to seek a federal legislative remedy. It may be that concurrent with her stated reaction, the appellant was suffering from a compensable injury which could be the subject of an application in accordance with the Act, PtVI, Div3. But none of those circumstances constitute "notice" in accordance with the Act, s32(1)(a). Her words and conduct were not sufficient to put a reasonable employer on notice as to the possibility of a claim. They did not provide notice of the existence of an injury, let alone its nature.

7. At the conclusion of the hearing of the appeal, the Court determined that the appeal should be dismissed. My reasons for concurring in that order are expressed in the above reasons.