Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Claims for compensation - Failure to make claim within time - Generally - Mistake or ignorance - Mixed question of fact and law.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss32 and 38.

Vetter v Lake Macquarie City Council (2001) 178 ALR; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, applied.

TGIO v McLeod B37/1991; FAI General Insurance v Morrison [1993] TASSC 115; (1993) 2 Tas R 9; Cascade Brewery Pty Ltd v Chambers 76/1992, followed.

Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Claims for compensation - Failure to make claim within time - Generally - Other reasonable cause - Ignorance of the law.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss32 and 38.

Murray v Baxter [1914] HCA 78; (1914) 18 CLR 622, applied.

Roles v Pascall [1911] 1 KB 982; Black v City of South Melbourne [1963] VicRp 7; [1963] VR 34; McDonald v Co-Operative Motors Ltd 57/1971, followed.

Leech v Melbourne and Metropolitan Tramways Board [1958] VicRp 64; [1958] VR 398; Akermanis v Melbourne and Metropolitan Tramways Board [1959] VicRp 20; [1959] VR 114; McKenzie v City of Caufield [1963] VicRp 62; [1963] VR 436, discussed.

Judgment Number: [2006] TASSC 100

VALENTIN TANASE v ACME ENGINEERING (TAS) PTY LTD

1 This appeal is brought from determinations of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") that:

1 The worker did not make a claim for compensation within six months from the occurrence of the injury.

2 The Workers Rehabilitation and Compensation Act 1988 ("the Act"), s38, does not operate to validate the worker's claim.

3 The reference of a claim for compensation be dismissed.

2 The Tribunal agreed to determine as preliminary issues to hearing the appellant's claim for compensation, whether the appellant had complied with the Act, s32(1), by giving notice of injury and making a claim within the time constraints imposed by the subsection.

3 The Tribunal found that the appellant had given the first respondent timely notice of his injury. It was common ground that he did not make a claim for compensation within six months after the date of the occurrence of his injury as required by the Act, s32(1)(b). To relieve him of this obligation, the appellant sought to rely on the Act, s38, which provides:

(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 The appellant was born in Romania. He emigrated to Australia in 1985. On arrival, he spoke no English but, as is apparent from the transcript of the evidence of the proceedings in the Tribunal, he has since acquired a good understanding of spoken English. His ability to read English is limited and his written skills in this language are virtually non-existent. The appellant is a fitter and turner and, by all accounts, was a good employee. He commenced work with the first respondent in October 2002.

5 Just before 8am on 22 October 2004, the appellant was at work and changing into his overalls when he felt a sharp pain in his back. It was a pain he had not previously experienced. He put it down to "old age" and went to his machine in the workshop. There, he had to move a vice from one table to another, but when he tried to do this, the vice became stuck "in the grooves". As the appellant tried to lift the vice up to get it out of the grooves, he again experienced pain in his back. He said it was "10 times more severe" than the pain he had experienced when changing into his overalls. The appellant said that the pain extended down his leg, into his toes, and "felt like lightning". He had to sit for 15 minutes, and after that was only able to walk with a limp.

6 The first respondent's manager, Mr Hey, came into the workshop and the appellant told him about his pain. He also told Mr Hey about pulling on his overalls and shortly afterwards lifting the vice. In his evidence, Mr Hey said that he did not recollect being told about lifting the vice, but the Tribunal found in the appellant's favour on that issue and consequently that notice of injury was given as soon as practical after its occurrence.

7 The appellant had an appointment to see his general practitioner on the afternoon of the day he suffered his injury. The consultation was about an unrelated matter, but the appellant used the opportunity to tell the doctor about the pain that he suffered that day. The diagnosis was sciatic pain and exercise was prescribed. The appellant saw another general practitioner and got the same diagnosis and the same advice. Accordingly, the appellant thought that he would get better and took no time off work.

8 Within a day or so, the appellant told Mr Hey about the medical opinions he had been given and Mr Hey recommended that the appellant consult a man who practised "Chinese medicine" because he had been successful in treating Mr Hey's back pain. An appointment was duly made and Mr Hey accompanied the appellant to the consultation and he paid the bill. Mr Hey said that he did this because the appellant was a good worker.

9 Over the next eight months or so, the appellant consulted a considerable number of different medical practitioners, including the neurosurgeon, Mr Liddell, as well as osteopaths and other persons. During this time he continued to work, but each day the pain in his back got worse. The fees for the various consultations were either "bulk billed" or paid for by Medicare and/or the appellant.

10 In about July or August 2005, the appellant consulted a pain specialist, Dr Paton. At a subsequent consultation, the prospect of a facet block was raised and Dr Paton asked whether the appellant had made a claim for compensation. When told that no claim had been made, Dr Paton advised the appellant to make one and sent him to his general practitioner so this could be done. There followed a period during which there was some confusion and difficulty about getting and completing the right form, so that the claim was not lodged until 22 January 2006, nine months out of time.

11 The appellant gave evidence that during the six month period after the accidental injury, he told the occupational health and safety officer about his injury when she happened to see him limping around the workshop and asked what was wrong with him. The appellant also told her that he had spoken to Mr Hey about it and she replied that that was fine. The appellant gave evidence that some time before he suffered his accidental injury, he attended a meeting at the workplace at which the first respondent told him and other workers, that "if anything happens to you, you come to report it to me, to Bob or Kim and we will take it from there". The appellant said, "So in my opinion I did everything that I was told." He said that nothing was said at that meeting about workers compensation.

12 On a Friday in late January 2006, the appellant's back pain was so bad he was taken to hospital. The Tribunal found that he had not worked since that day.

13 The appellant said that no one in his workplace, and, until he saw Dr Paton, no medical practitioner whom he consulted, mentioned workers compensation to him, but throughout the whole of his evidence-in chief he gave the Tribunal no reason for not making a claim within six months of suffering his accidental injury.

14 In cross-examination the appellant denied that workers compensation was mentioned at the workplace meeting. It was put to him, but denied, that workers compensation was mentioned by the second general practitioner whom he consulted. He said that Mr Liddell asked him "maybe five to ten times" if he had private health insurance, but did not ask him about workers compensation.

15 When asked why he did not take all the accounts from the man who practised Chinese medicine to his employer (except the first), the appellant said, "I did not know my employer has to pay that, sir, I did not know." There followed these questions and answers:

"You didn't know you were entitled to worker's compensation at all? ...... No, I did not know.

You must have, over your twenty years in Australia known people on worker's compensation? ...... I did not know what the worker compensation's role, sir, I did not know they have to pay for my - my, what do you call - all the doctor appointments.

You didn't know that at all you're saying? ...... No, sir, I did not.

Okay. Now you then went to see Dr Patten? ...... Yes.

And you saw him about July? ...... Something like that, yes.

2005 - yeah. And you've told us about what he said. ...... Yes.

Now do you say it wasn't until about December of last year when Dr Patten suggested that you needed a facet block? ...... Yes -

The question of worker's compensation was first raised?......Yes, sir.

What was your response to Dr Patten when he said, 'Well why isn't this on worker's compensation?'? ...... Dr Patten looked through his paper and looked back to see the reports what he got from me, and then he said, 'Oh, that should be worker's compensation, why don't you have one?' and that's - I did not know. And then Dr Patten said, 'Well you should go back to your GP and get one of the forms.' I did go to GP, the GP sent me to Hall, to get work to my employer. So then when I knew about the worker compensation.

All right. So am I right in saying that your explanation that you're telling the Commissioner that the reason why you didn't put in a claim was because you didn't know you were entitled to? ...... Yes, sir."

16 There was no further evidence concerning the reason why no claim was made within six months of the occurrence of the injury, apart from this question and answer:

"... there was no one at Acme Engineering that said to you, 'Victor, you don't need to make a claim for compensation, we'll pay everything and look after you' - no one said that, did they? ...... Nobody said I pay for everything and - just, [Mr Hey] told me in the first conversation, everything should be fine, thank you very much telling me and we'll take it from here."

17 The Tribunal found that the appellant suffered an injury to his back on 22 October 2004 as he described in his evidence and, as mentioned earlier, found that he gave timely notice of that injury. The Tribunal then said at par16 of the reasons for decision:

"The worker, as I understand his case, attributes his failure to make a claim at an earlier time to his ignorance of the Act and his entitlement to any workers compensation. He says that it was not until his second consultation with Dr Paton in October/November 2005 that he first became aware that compensation may be payable. I accept the worker's evidence upon these matters."

18 The Tribunal then examined a number of authorities and concluded that the appellant's ignorance of the law did not constitute "reasonable cause" within the meaning of the Act, s38, and dismissed the reference.

19 The notice of appeal, as filed, contained this single ground of appeal:

"1) The Tribunal erred in law in finding that all the circumstances of the Appellant's claim for compensation pursuant to the Act did not amount to 'reasonable cause' pursuant to Section 38 of the Workers Rehabilitation and Compensation Act 1988 such that the Appellant's claim for compensation ought to have been declared valid pursuant to that section."

20 Bearing in mind that the Act, s63(1), restricts the jurisdiction of this Court on appeals from the Tribunal to "points of law", the ambit of this ground was explored with counsel for the appellant at the commencement of the hearing. This resulted in an abandonment of the single ground of appeal and its replacement by the following grounds:

"1 That the finding of fact of the Tribunal at (16) that the worker attributed his failure to make a claim only to his ignorance of the Workers Rehabilitation and Compensation Act 1988 was a finding of fact that no tribunal properly instructed could make on the evidence.

2 That the Tribunal erred in law in failing to consider the following facts and matters when considering whether the worker's failure to make a claim within 6 months of the injury was occasioned by mistake or reasonable cause:

(a) That the worker had received instruction at an induction course provided by the employer in relation to his obligations in the event of an injury.

(b) That the worker followed his understanding of that instruction when he was in fact injured and the employer appeared to accept that he had acted correctly.

(c) The worker did not become incapacitated within 6 months of injury.

(d) The worker incurred very little expense as a result of his injury within 6 months of injury.

(e) The worker was of foreign birth and had oral and written communication difficulties in English.

(f) The worker did not consider his condition to be serious and thought he would recover.

(g) That a mistake of the employer in failing to characterize the injury as a workplace injury led to the failure.

3 The Tribunal erred in failing to consider the worker's ignorance in conjunction with factors listed in ground 2 in determining whether there was reasonable cause."

21 Whether the facts, either found or not in dispute, fall within the statutory description of "mistake or other reasonable cause" is a mixed question of fact and law. As the joint judgment put it in Vetter v Lake Macquarie City Council (2001) 178 ALR 1 at 8:

"Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law [1999] NSWCA 98; (1999) 18 NSWCCR 34 at 48 [44]- [45]. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138:

'[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law ...'."

22 A little further on, their Honours adopted a passage from the judgment of Mason J (as he then was) in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7 and quoted, with approval, this extract from an earlier judgment of his Honour when a member of the Court of Criminal Appeal (NSW) in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547:

"[I]t may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.

The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact."

23 Mahoney JA said in Mahony v Industrial Registrar NSW (1986) 8 NSWLR 1 at 5, that error of law will arise if the primary facts found are necessarily within or outside the description and a contrary decision has been made.

24 These cases have been applied and followed numerous times by this Court in appeals from the Tribunal. In TGIO v McLeod B37/1991, Wright J said, at 2:

"If the tribunal does not misdirect itself as to the law it may nonetheless be found to have erred in law if an ultimate finding of fact upon which the case fails or succeeds can be demonstrated as being one which could not be reasonably entertained by the tribunal if it correctly applied the law to the primary facts in a judicial manner."

See also FAI General Insurance v Morrison [1993] TASSC 115; (1993) 2 Tas R 9; Cascade Brewery Pty Ltd v Chambers 76/1992.

25 In arriving at its conclusion, the Tribunal goes through a number of stages. First, it evaluates any witnesses who gave conflicting evidence and ascertains, or finds, the primary facts. Provided there is some evidence to support the findings of primary fact, no error of law can arise from this evaluation even if the reasoning for the evaluation is wrong. See Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Tracy Village Sports & Social Club v Walker [1992] NTSC 91; (1992) 111 FLR 32 at 37 - 38. Second, the Tribunal draws inferences from the findings of primary facts and again, provided there is evidence to support the drawing of those inferences, no question of law can arise from this process. See Instrumatic Ltd v Supabrase Ltd [1969] 2 All ER 131; Pickett v Selected Joinery Pty Ltd A87/1995. Third, the Tribunal declares the law. Obviously, error at this stage will be an error of law. Finally, the Tribunal applies the findings of fact to the law as it has declared it to be. If the result of this last stage is one that is not reasonably open, there is error of law. If the result of the last stage of the process is one that was not unreasonable, but one in respect of which different minds might differ, no error of law is demonstrated.

26 To succeed in this case the appellant has to show that the facts as found or not disputed necessarily meant that the appellant's failure to make a claim for compensation within six months of the occurrence of the injury was occasioned by a mistake or other reasonable cause.

27 The words "cause" and "occasioned" as enacted in the Act, s38, are words of wide meaning and ordinary use. I see no reason not to apply the principles expressed in the leading case on causation in the law of damages, March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, namely what was the cause of injury and/or damage is to be determined according to ordinary "common sense principles", this being a value judgment by the fact-finder.

28 From the evidentiary material that I have set out, it was clearly open for the Tribunal to find that the failure to make a claim within the prescribed time was due to, or occasioned by, the appellant's ignorance of his entitlement to any workers compensation. Indeed, he agreed that that was the cause. That is an ordinary common sense practical conclusion. I suppose it might also be said that his failure to make a claim was due to no one telling him to make a claim, or no one giving him any claim forms, or indeed perhaps, because he did not see Dr Paton until after the six month period had expired. At all events, it was clearly open to the Tribunal to find that his total ignorance of the provisions and/or effect of the Act was the reason no claim was made until after the time had expired.

29 The next question that arises is whether the conclusion that the identified cause was not a reasonable cause within the meaning of the section was one that was reasonably open to the Tribunal.

30 The Tribunal began its consideration of this issue with a reference to Roles v Pascall [1911] 1 KB 982 at 983. That case, like this appeal, concerned an injured worker who failed to give timely notice and who failed to make a claim within the time prescribed. It was found that the failures were because "... he did not know of the existence of the Act or that he was entitled to compensation for injury by accident arising out of and in the course of his employment". The Workmen's Compensation Act 1906 (UK), s2(1)(b), provided for relief against a failure to make a claim within six months of the occurrence of the injury. There is no material distinction to be drawn between the operative words of that paragraph and the Act, s38(1). The issue before the Court of Appeal was the same as the issue before the Tribunal. Cozens-Hardy MR, referred to the finding of fact concerning the worker's ignorance of the law, and said at 985 - 986:

"In my opinion that is not at all what is meant by 'mistake'. A mistake means that a man takes a wrong view as to the construction or effect of an Act of Parliament, if it be a mistake of law. A mistake of fact may be that the notice is given to some person whom the workman believed to be an agent or a person entitled to receive the notice when he was not. Many instances of that kind may be given. But mistake is not identical with ignorance. That is really what the argument for the respondent means. Then is it a 'reasonable cause' for a man not giving a notice that he is not aware of the Act of Parliament at all? In my opinion it is not. I think that those words are in intended to meet an entirely different class of case."

31 The other members of the court expressed reasoning to the same effect.

32 The decision in Roles was referred to by the High Court in Murray v Baxter [1914] HCA 78; (1914) 18 CLR 622. The joint judgment of the majority in that case is authority for the proposition that statutory reference to "mistake" in the workers compensation legislation is a reference to mistake of fact or a mistake of law. The majority distinguished Roles by concluding that the widow in Murray's case knew that there was an entitlement to compensation, but subsequently became muddled as a result of erroneous and conflicting advice she had been given. This advice led her to wrongly believing that she did not have a claim after all. The court held that this was not ignorance of the law altogether as in Roles, but a mistake with respect to the law.

33 The majority in Murray also agreed that the mistake, absence from the State or other reasonable cause, must arise during the six month period within which the claim must be made. Subsequent events were not material. This approach was adopted in Tasmania by Crawford J in Richardson v Dodderidge [1960] Tas SR 25.

34 As to the distinction between mistake and ignorance, it is worth quoting the Australian Digest extract of the ratio decidendi in Garratt v Tooheys Ltd (1949) 23 WCR 80 (NSW Worker's Compensation Commission):

"Held: Mistake means a fault in opinion or judgment, or an unintentional error of conduct: it could include misconception on the requirement of notice or claim. Ignorance is not the same as mistake, the latter conception connotes mental processes revolving round some facts or circumstances and an erroneous belief or act resulting therefrom. In short, there cannot be mistake without some knowledge. Not to know the law simpliciter, not to know the requirement of notice or claim, is insufficient excuse. The mistake contemplated by the statute may be one of law or fact or mixed law and fact. The line between not knowing and being mistaken is finer than the finest gossamer thread."

35 Leech v Melbourne and Metropolitan Tramways Board [1958] VicRp 64; [1958] VR 398; Akermanis v Melbourne and Metropolitan Tramways Board [1959] VicRp 20; [1959] VR 114 and McKenzie v City of Caufield [1963] VicRp 62; [1963] VR 436 all considered a provision in the Limitation of Actions Act 1955 (Vic) that required notice of proposed action being given within a specified time as a condition precedent to bringing an action against a public authority. Section 34 gave relief against this provision if the failure to give the notice was "occasioned by mistake or any reasonable cause." In all three cases the applicant knew that there was a right to bring proceedings against the respondent, but was ignorant as to the provisions that required the giving of notice of intention to bring an action. In Akermanis, Sholl J said at 117, "that mere ignorance of the legal requirement of notice does not of itself, and without more, constitute reasonable cause" and expressed disagreement with an expression of a contrary view in Mitchell v State Rivers and Water Supply Commission [1958] VicRp 102; [1958] VR 664. In Leech, Dean J said at 399 that "[t]here has been a consistent course of authority in England to the effect that mere ignorance of the law is not a mistake." He went on, at 400, "To make a mistake about a matter a person must apply his mind to the matter and arrive at a wrong result." At 401, his Honour held that the applicant's ignorance of the statutory requirement to give notice did not amount to reasonable cause, saying:

"Apart from authority, I should have thought that it was not reasonable for a person who considers that he has a claim against another to abstain from finding out the provisions of the Acts of Parliament affecting his claim or from obtaining legal advice for many months after his cause of action arose."

36 In Mitchell v State Rivers and Water Supply Commission (supra), Herring CJ held that because the applicant knew he had a right to sue but his knowledge was incomplete because he was not aware of the statutory requirement for giving notice, there was no "passivity of thought" but a mistake of law which occasioned the failure to give the notice. In Black v City of South Melbourne [1963] VicRp 7; [1963] VR 34, the Victorian Full Court referred to the above cases and rightly observed that not all of them are easily reconciled, but said, at 37, that it is settled that mere ignorance of the law is not a mistake as there can be no mistake if there is no advertence to the subject matter. Disapproval was expressed of the view of Herring CJ to the contrary in Mitchell. With respect to what may constitute reasonable cause, the Full Court said at 38:

"The next question is whether there was 'reasonable cause' for the failure to give notice. The inquiry here appears to be of a much wider kind justifying a more liberal attitude. The expression 'reasonable cause' appears to us to mean some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable. In Quinlivan v Portland Harbour Trust, [1963] VicRp 5; [1963] VR 25, a p 28, Sholl, J, used these words: 'the subsection means to refer to a 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'."

37 The views expressed by the Full Court in Black were adopted by Burbury CJ in McDonald v Co-Operative Motors Ltd 57/1971 and Crawford J in Hillier v Pivot Nutrition [2000] TASSC 100.

38 The Tribunal's finding of fact that the cause of the failure to make a claim within the time prescribed was the appellant's ignorance of the law is an unassailable finding of fact because there is evidence to support it. The Tribunal's ultimate finding that that cause was not a reasonable cause within the meaning of the Act, s38, is in accord with authority and cannot be described as a conclusion necessarily outside the description enacted in the section.

39 Ground 1 is not made out. As to ground 2, there is no evidence that the Tribunal did not consider the facts listed in pars(a) - (g) in that ground. Although there is some overstatement in one or two of the paragraphs, all those facts are set out in the Tribunal's reason's for decision, and there is no reasons to suppose that the Tribunal did not have regard to them when considering its decision. For the reasons I have expressed, the primary and the ultimate findings of fact are unassailable. Grounds 2 and 3 are not made out and the appeal is dismissed.