TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Claim and delay in making claim - Excuses for delay - Mistake or ignorance - Mistake - Injury not believed serious at first.

Flint v Lithgow Valley Colliery Co Ltd [1937] WCR (NSW)128, followed.

Workers Rehabilitation and Compensation Act 1988 (Tas), s37(1)(a).

Judgment Number: [2001] TASSC 30

1 The respondent is a nurse. She suffered a neck injury at work at the North-Western Regional Hospital in Burnie on 24 September 1999. She made a claim for compensation in respect of that injury pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act") on or about 12 November 1999. The appellant, her employer, disputed liability to pay compensation, on the basis that notice of the injury had not been given to it as soon as practicable after the occurrence of the injury as required by the Act, s32(1)(a). The respondent referred the dispute to the Workers Rehabilitation and Compensation Tribunal. On 27 March 2000 that Tribunal, constituted by its Chief Commissioner, dismissed her application. She appealed. On 28 September 2000, a judge of this Court upheld the appeal, quashed the order of the Tribunal, and ordered that the application be remitted to the Tribunal to be determined in accordance with law: Muir-Wilson v State of Tasmania [2000] TASSC 137. The employer has appealed, contending that the learned primary judge made a number of errors of law.

2 The only issue in dispute before the learned Chief Commissioner was whether the respondent was entitled to the benefit of the Act, s37(1), which reads as follows:

"37 - (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."

3 As to s37(1)(b), it was conceded before the learned Chief Commissioner that the employer's defence was not prejudiced by reason of the failure to give notice of injury as soon as practicable after the occurrence of the injury. As to s37(1)(a), there was no suggestion that the respondent had been absent from the State, but it was contended that the failure to give notice was occasioned by mistake and by other reasonable cause. The learned Chief Commissioner accurately summarised the evidence as to the period from 24 September 1999 (the day of the injury) until 14 October 1999 (the day notice was given), as follows:

"The worker continued to suffer pain in her neck for the remainder of her shift on that day. On the following day, 25 September, she also experienced pain in her neck whilst at work, although it did not incapacitate her for work. On 26 September whilst on rostered days off the worker first experienced a tingling feeling in her right hand effecting [sic] 2 fingers and her thumb. She was still experiencing neck pains as well as this tingling sensation at that time and her belief then was that she had suffered some form of muscular injury to her neck which was responsible for those symptoms. She continued to suffer these symptoms over the next 3 days and her belief still was that it was a muscular injury which would resolve as other muscular type injuries that she had suffered in the course of her employment had done so in the past. On 29, 30 September and 1 October she was at work and still suffering these symptoms, and was becoming more concerned about them as she mentioned her symptoms to others at work but did not provide any details as to the cause of those symptoms. On 2 October whilst at work, she was involved in heavy work, lifting patients, and the tingling feeling in her fingers became more pronounced, as the worker says it felt 'deeper', there was some pain and the feeling affected the lower arm as well. She commented to a fellow employee, Sue Hood, that she was becoming concerned about her symptoms but at this stage she says she was still unsure if the injury was serious. On 5 and 6 October whilst at work, there appeared to be some resolution of the symptoms, I infer back to the pre 2 October level. During the period 7 October through until 13 October she was on sick leave suffering influenza and describes that during this period she suffered aches and pains which were affecting her whole body including her neck, but throughout this period the tingling feeling in her fingers was not as significant. By 11 October the general ache and pains had resolved but she was still left with a pain in her neck. She says that as at 11 October she 'still had difficulty sleeping as my neck would hurt and I would get up once or twice a night to get myself a hot pack.' Also by this stage she described that 'the tingling was now more often up my arm as well as my fingers and thumb, my thumb felt partially numb.' She says however in her evidence that it was 13 October that her thumb went numb, that this was a completely different symptom which scared her and she decided at that stage that she would have to talk to someone at work about her condition. Accordingly on 14 October she saw a supervisor, Jenny Barnard, and gave details of the injury allegedly suffered on 24 September ...".

4 When she was cross-examined before the learned Chief Commissioner, the respondent was asked whether the tingling that she experienced became more frequent over the period from 24 September 1999 to 14 October 1999. She replied as follows:

"More so - not in whole period, much more so on the 12th and the 13th of October, that's the first time I really noticed a difference. Until then I wouldn't - really wouldn't have thought it would have stayed around. I could have expected it would have gone and it seemed to be insignificant, it was just an ache and a tiny bit of fizz."

5 Despite that evidence, the learned Chief Commissioner did not consider whether the respondent's failure to give notice of her injury as soon as practicable after it occurred was occasioned by a mistake on her part as to the severity of that injury or as to the likely longevity of the symptoms it produced. Instead, he treated the respondent's views as to such matters as going only to the question of whether she had a reasonable cause for her failure to give notice at the appropriate time. His reasoning appears from the following passage in his decision:

"The only basis for relief is the worker's alleged belief that her injury, was not serious and that it was transient or would resolve in time, such belief being in some circumstances capable of being a mistake to the fact or a reasonable cause for not giving notice sooner.

'A mistake exists when a person erroneously thinks that one state of fact exists when, in reality, another state of facts exists', as per Cazens-Hardy MR [sic] in Roles v Pascall Sons [1911] 1 KB 982 at 987. There is no doubt the worker was not mistaken as to the fact that she suffered an injury, nor that this injury caused symptoms of pain in her neck and the feeling of tingling, numbness and pain in the fingers, thumb, right hand and forearms. I do not accept that the worker was mistaken as to whether or not an injury had been suffered until she sought medical opinion. She was clearly aware that she had injured herself, and the issue of whether her belief as to the likelihood of the injury resolving relieves her of the requirement to give notice as soon as practicable, requires consideration of whether this amounted to a reasonable cause."

6 A mistake by the respondent as to the severity of her injury, or as to the likely longevity of its symptoms, would have been just as much a mistake as a mistake as to whether or not an injury had been suffered, or a mistake as to whether her neck injury was the cause of her upper limb symptoms. One can make a mistake in relation to a question of degree, just as one can make a mistake as to whether an event occurred, or as to whether a cause and effect relationship existed between an event and subsequent physiological symptoms. It is significant that s37(1)(a) does not say "reasonable mistake" but "mistake". When a failure to give notice at the appropriate time is occasioned by a genuine or honest mistake, it does not matter how reasonable or unreasonable a worker's mistake is. Thus a worker might be entitled to the benefit of s37 on the basis of a mistake which, viewed objectively, would not amount to a "reasonable cause". In Flint v Lithgow Valley Colliery Co Ltd [1937] WCR (NSW) 128, a worker did not report an eye injury as soon as practicable after its occurrence because he "did not think the injury was going to be much". When he sought medical attention some days later, he mistakenly thought it was too late for him to report the injury and receive compensation, and therefore did not bother. The Workers' Compensation Commission of New South Wales held that his failure to give notice of injury as soon as practicable after the happening thereof was occasioned by "mistake" within the meaning of a legislative provision similar to our s37(1). At 131, Perdriau J, referring to the worker in that case, said the following:

"... apart from the question of credibility, the reasonableness of his mistake is not a matter which the Commission is permitted to take into consideration if it is satisfied that the want of notice is truly attributable to mistake."

7 In our view, the learned Chief Commissioner erred in law in failing to consider whether the respondent's failure to give notice was occasioned by a mistake on her part as to the seriousness of her injury, or as to the likely longevity of the symptoms it produced. It would have been open to him to reach a decision favourable to the respondent on that basis, even if such a mistake on her part, considered objectively, did not constitute a reasonable cause for failure to give notice at the required time. On this basis, the learned primary judge should have allowed ground 5 of the appeal before him which asserted "That the learned Chief Commissioner erred in law by failing to apply the proper test and interpretation of Section 37 of the Act in relation to the Appellant's claim".

8 There is another aspect of the proceedings before the Tribunal that concerns us, but which was not the subject of any ground of appeal before the learned primary judge. The learned Chief Commissioner decided that the respondent's failure to give notice as soon as practicable after the occurrence of her injury was not occasioned by a reasonable cause. In reaching that conclusion, he drew a very significant inference adverse to the respondent in the following sentence:

"In this case it cannot be ignored that the worker was an experienced nurse and would, I infer, have an understanding of the possible link between a neck injury and neurological symptoms in the arm."

However it was not put to the respondent when she was cross-examined that she understood the possible link between a neck injury and neurological symptoms in the arm, nor was it suggested during counsel's submissions to the learned Chief Commissioner that it should be inferred that the respondent understood there was such a link, nor did the learned Chief Commissioner invite submissions as to whether he should draw such an inference. In drawing the inference that he did, without giving the respondent an opportunity to give evidence as to the point, and without giving her counsel an opportunity to make submissions as to the point, the learned Chief Commissioner failed to afford the respondent natural justice or procedural fairness, and thereby erred in law.

9 In this appeal, all the grounds of appeal are directed to the reasoning of the learned primary judge. Because of the errors of law on the part of the learned Chief Commissioner that we have identified, the only appropriate course for the learned primary judge was to set aside the order of the learned Chief Commissioner and remit the application for rehearing by another Commissioner. That is what he did. Whether the learned primary judge erred in law in his reasoning process or not, the orders that he made were the only appropriate orders. The appeal is therefore dismissed.