(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.
(1A)
For the purposes of sub-section (1), where a workman
left his employment only by reason of the fact that, because
of injury
received in that employment, he was unable to
continue in that employment, he shall be deemed not to have
voluntarily left
that employment.
(1B) Without limiting the generality of the meaning of the
expression 'reasonable cause' in sub-section (1)
(a) the making of a payment to a workman which he believes
to be a payment of compensation under this Act; or
(b) any
conduct on the part of the employer or his insurer
or agent, or on the part of an employee of any of them
purporting to act
on behalf of the employer, by which the
workman is led to believe that compensation under this Act
will or will probably be
paid to him or by which he is led
to believe that he is not entitled to compensation, shall be
deemed to be a reasonable cause
within the meaning of that
expression."
5. The learned magistrate found that the delay in giving notice of the injury
caused
prejudice to the employer in its defence of the claim, but that the
failure to give the notice and to make the claim within the prescribed
period
was due to a reasonable cause. Accordingly, the claim was not barred; and the
learned magistrate made awards for past weekly
compensation, medical and
hospital expenses, and for lump sum payments in respect of the loss of
function to both legs.
6. The first
ground of appeal was that the learned magistrate erred in law in
finding that there was a reasonable cause for the failure to give
notice and
make a claim within the relevant period. The employer further contends that,
as a matter of law, the learned magistrate
ought to have found that the claim
was not maintainable by reason of s25 of the Act.
7. No finding was made by the learned magistrate
as to when notice ought to
have been given. The worker submitted in the court below that notice had in
fact been given on the day
of the accident. Although the learned magistrate
did not specifically address that submission in her reasons, it is implicit in
her findings that she accepted the employer's submission that no notice was
given until 1986. No submission was made by the respondent
during the hearing
of this appeal that that finding was in error. Further, no finding was made
as to whether or not failure to comply
with s25 could be excused on the ground
of mistake or absence from the Territory. The respondent did not submit
during the hearing
of the appeal that absence from the Territory was a
relevant consideration, but the submission was made that if I were to find
that
the court below had erred in finding that there was reasonable cause, I
should find that the failure to comply with s25 was due to
mistake. Counsel
for the employer conceded that it was necessary for me to consider that issue
notwithstanding that no notice of
contention had been given by the worker.
THE FACTS AS FOUND BY THE LEARNED MAGISTRATE
8. The learned magistrate found that the worker
injured her back on 7 June
1979, whilst moving a keg of beer in the course of her employment. She
suffered continual pain following
the injury although she continued to work in
the hope and expectation that her back condition would improve. Approximately
three
weeks later, she resigned for three reasons: her back injury; she had
suffered two broken fingers whilst at work as a result of another
separate
accident; and she was frustrated by the effects of a strike that had occurred
at her place of employment.
9. The learned
magistrate found that the worker was a credible witness whose
evidence she accepted as true and correct. In her reasons for judgment,
the
learned magistrate did not set out all of the factual findings upon which she
based her ultimate conclusions. She did, however,
set out a summary of the
plaintiff's evidence, as well as a summary of the evidence of Dr Bromwich
whose evidence she accepted. It
is plain that, to the extent necessary to
support her ultimate conclusions, the learned magistrate relied upon these
summaries, as
well as Dr Bromwich's reports, as if they were her own findings.
The following additional facts are taken from those summaries and
from Dr
Bromwich's reports, as well as from the other findings made in the judgment in
relation to other issues. After the worker
had given up work her back was
still sore, but she kept thinking it would get better and did not seek medical
attention. On 8 July
1979, whilst making a bed at home, she bent over and
suffered excruciating pain in her lower back and could not get up. She went
to see a chiropractor the next morning, but the pain was so bad that she was
taken to hospital by ambulance. At the hospital, she
was seen by Dr Bromwich
who admitted her on 9 July 1979 and treated her initially with bed rest and
traction. She was subsequently
advised to have an operation by a
neurosurgeon, Mr Yaksich, to whom she had been referred. Mr Yaksich performed
an operation (a
laminectomy) on 24 July 1979. She remained in hospital until
2 August 1979. She saw Dr Bromwich thereafter on a number of occasions,
and
was also seen by Mr Yaksich as an outpatient. She did not make a claim upon
her employer at that time because she had left work
and did not know that she
could do anything as she was no longer in employment there.
10. On 28 October 1979, she commenced work
with Woolworths Limited, "working
on the floor and (doing) some work in the cashier's department." She worked
full time, with difficulty,
until 7 November 1989. She resigned because her
back was too sore to enable her to keep standing and for her to work.
11. On 11
February 1980 she was re-admitted by Mr Yaksich to the Darwin
Hospital for epidural and intrathecal steroid injections. She was
discharged
on 22 February.
12. In May 1980, as she was leaving Darwin, Mr Yaksich referred her to
another neurosurgeon, Mr Scott-Charleton,
who re-explored her back in 1980,
performed a lumbosacral spinal fusion in 1981, as well as a further operation
in 1983.
13. In
1982, she commenced part-time work as a colour consultant, and has
continued in part-time work in various capacities on and off since
then.
14. The learned magistrate's findings as to the reasons why the worker did
not comply with s25 are as follows:
"Mrs Walker
stated that in 1979 she did not specifically
know anything about Workers Compensation in the Northern
Territory. In 1979 she
did not believe that Workers
Compensation was applicable in relation to her injury at
work. This was because she had stopped
work when it really
went wrong and she did not think about it. She just hoped
it would get better. She had an operation in
July, 1979 and
anticipated she would get back to full duties. Further
operations were necessary in 1980 continuing on into
1983.
She did not know anything about having to give notice to her
employer within six months of an injury or of having to
make
a claim within six months.
My analysis of the reason why Mrs Walker did not give notice
or make a claim earlier was
that although she was aware that
worker's compensation existed she did not appreciate that it
may be applicable to her circumstances.
I do also accept
her whole attitude was that she hoped and expected to make a
complete recovery. She underwent a series of
operations
over a number of years none of which resulted in resolving
her disability and some years after the initial injury
she
has had to accept the reality that she is still disabled and
this condition has now stabilised.
At this point Mrs Walker
obviously obtained advice and
subsequently instituted a claim for compensation.
Worker's compensation is social legislation
designed to
facilitate not to prevent a genuine and lawful claim for
compensation.
For these reasons I find there was a
reasonable cause for
the failure by Mrs Walker to give notice and make a claim
within the prescribed period.
I do not consider
Mrs Walker is precluded from pursuing her
claim because of her failure to comply with section 25."
THE NATURE OF THE APPEAL 15.
Except where fresh evidence exists, an appeal to
this Court is limited to questions of law: s26(1). In Fenton v Owners of Ship
Kelvin (1925) 2 KB 473 at 490, Atkin LJ said:
"... what is or is not reasonable cause is plainly, I
think, on the authorities a question of law.
But having
determined the question of law whether a cause could exist
which might be a reasonable cause, then obviously it
is for
the County Court judge to find on the facts whether they
bring the case within that reasonable cause."
16. It is necessary
to bear in mind the limited powers of this Court on an
appeal of this nature. The supervisory jurisdiction of this Court is limited
to the question of whether or not there is an error of law. This Court has no
jurisdiction to correct factual errors. Whilst the
borderline between errors
of law and errors of fact is notoriously difficult to delineate, as Gallop J
observed in Tiver Constructions
Pty Ltd v Clair (unreported, Court of Appeal,
22/10/92), certain principles have become well accepted. In the process of
arriving
at an ultimate conclusion a trial judge goes through a number of
stages. The first stage is to find the primary facts. This may
involve the
evaluation of witnesses who give conflicting accounts as to those facts. If
the trial judge prefers one account to another,
that decision is a question of
fact to be determined by him, and is not reviewable on appeal. It may be that
the reason given for
preferring one witness to another is patently wrong.
Nevertheless, no appeal lies: R v District Court of the Metropolitan District
Holden at Sydney, Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654; Azzopardi v Tasman
UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Haines v Leves (1987) 8 NSWLR
442 at 469-70. Regardless of the trial judge's reasons, if there is evidence
which, if believed, would support the finding, there is
no error of law:
Nicolia v Commissioner of Railways (1972) ALR 185 (High Court). If, on the
other hand, there is no evidence to support a finding of fact which is crucial
to an ultimate finding that the
case fell within the words of the statute (for
example, that injury by accident arose out of the course of the employment, or
that
the failure to give notice was occasioned by mistake), there is an error
of law: Nicolia v Commissioner of Railways, supra; Tiver
Constructions Pty Ltd
v Clair, supra, per Martin and Mildren JJ at 10-11; Haines v Leves, supra, at
476; Azzopardi v Tasman UEB Industries
Ltd, supra, at 156. But, a finding of
fact cannot be disturbed on the basis that it is "perverse," or "against the
evidence or the
weight of the evidence or contrary to the overwhelming weight
of evidence." Nor may this Court review a finding of fact merely because
it is
alleged to ignore the probative force of evidence which is all one way, even
if no reasonable person could have arrived at
the decision made, and even if
the reasoning was demonstrably unsound: Haines v Leves, supra, at 469-70. The
second stage is the
drawing of inferences by the trial judge from the primary
facts to arrive at secondary facts. This is subject to the same limitations
that apply to primary facts. If there are no primary facts upon which a
secondary fact could be inferred, and the secondary fact
is crucial to the
ultimate finding as to whether or not the case fell within the words of the
statute, there is an error of law.
If there are primary facts upon which a
secondary fact might be inferred, there is no error of law. It is not
sufficient that this
Court would have drawn a different inference from those
facts. The question is, whether there were facts upon which the inference
might be drawn. In Instrumatic Ltd v Supabrase Ltd (1969) 1 WLR 519 at 521;
(1969) 2 All ER 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and
Phillimore LJ agreed, said that "if a tribunal draws an inference which cannot
reasonably be drawn, it errs in point of law, and its decision can be reviewed
by the courts. That was settled, once and for all,
in Edwards (Inspector of
Taxes) v Bairstow [1955] UKHL 3; (1956) AC 14." (Emphasis mine). The word "reasonably"
suggests that this Court could interfere if it thought the inference drawn was
unreasonable. With respect,
I think difficulty of understanding may arise by
the use of pejorative words such as "perverse," "unreasonable," "illogical"
and
the like expressions which by their nature indicate only that in the
opinion of the user, the decision ought not to have been made,
and the user
holds that opinion rather strongly. It is better not to use such words. In
the context of this discussion, if an inference
cannot reasonably be drawn, it
will be because the inference cannot be drawn from the primary facts.
However, if the inference is
one about which minds might differ, it being a
question of judgment or degree, the inference not only can be drawn but it
would not
be unreasonable to draw it. Properly understood, I am unable to see
any difference on this question between the position of the
Court of Appeal in
England and the majority of the Court of Appeal in Azzopardi.
17. The third stage is when the trial judge directs
himself to the law.
Obviously, if he makes a mistake at this stage, there will be an error of law.
The final stage, is when the trial
judge applies the facts to the law to
arrive at his ultimate conclusion. In Azzopardi v Tasman UEB Industries Ltd,
supra, at 157,
the majority noted that "it is only in marginal cases that the
statutory test is satisfied or not satisfied as a matter of law, because
no
other application is reasonably open." This is similar to the passage in
Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126 at 134 where Dixon J observed
that "... in a matter of degree ... it is not open to a court to make any but
one finding."
18. But,
all of this assumes that the trial judge has gone through this
process of finding facts, directing himself to the law, and arriving
at an
ultimate conclusion by application of the facts to the law, and sometimes the
judgment appealed from does not disclose if or
how this has occurred. What
then? In some cases, if the court has power to do so, the proper approach may
be to remit the matter
back to the trial judge to determine the issue in
question or to order that he provide proper reasons if that has not been done:
Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281 at 297; Donges v
Ratcliffe (1975) 1 NSWLR 501. Alternatively, the failure to provide proper
reasons may in itself be an error of law, necessitating an order for a new
trial: Pettitt
v Dunkley (1971) 1 NSWLR 376. Either of these courses may be
taken if the facts, or the facts as are found, are equivocal as to what result
should have been reached:
Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; (1953) 93 CLR 561 at
574; Pettitt v Dunkley, supra, at 383. On the other hand, sufficient facts
may have been found (or the facts may not have been
in contest) for the court
to decide whether or not, as a matter of law, the ultimate conclusion may have
been open, or whether the
opposite conclusion is that which should have been
reached. In its consideration of the facts, there may be a situation where
the
facts are, as Lord Radcliffe observed in Edwards (Inspector of Taxes) v
Bairstow, supra, at 36, "neutral in themselves and only ...
take their colour
from the combination of circumstances in which they are found to occur," and
from which the only conclusion to
be drawn is one that "contradicts the
determination," in which case, the inference will be drawn that there has been
"some misconception
of the law."
19. For a general discussion on the nature of an appeal on a question of law
only, see Mills Workers Compensation (New
South Wales) 2nd ed Butterworths
(1979) at 423-4; Hill and Bingeman Principles of the Law of Workers'
Compensation at 183-192.
IS
THE FINDING THAT THERE WAS REASONABLE CAUSE IN ERROR?
20. The employer's first submission was that the facts relied upon by the
learned magistrate could not amount to a reasonable cause within the meaning
of the Act.
21. It was submitted that the finding that
the worker "did not appreciate
that (the right to compensation) was applicable to her circumstances" amounted
to a finding that the
worker failed to comply with s25 through ignorance and
that this cannot amount to a reasonable cause within the meaning of the Act.
22. There is no finding by the learned magistrate that the failure to comply
with s25(1) was due to a mistake, whether of fact or
law, or both. If such a
finding had been made, no question would have arisen as to whether the mistake
was reasonable or not: Murray
v Baxter [1914] HCA 78; (1914) 18 CLR 622 at 629, and
consequently the question of whether there was a reasonable cause would not
have arisen. Whether such a finding should
have been made is another question
which I will deal with later. As no such finding was made, I conclude that
the learned magistrate's
finding that the worker did not appreciate that the
Act was applicable to the worker's circumstances is no more than a finding
that
the worker was ignorant, that is, did not know of her right to make a
claim for compensation: cf Commonwealth of Australia v Connors
[1989] FCA 78; (1989) 86 ALR
247 per Northrop and Ryan JJ. Further, I note in this connection that there
was no finding by the learned magistrate that the worker
had applied her mind
with the information in her possession and knowledge to the question of the
application of the law as she knew
it to the facts of her case and
misconceived her true position in law or fact or both : cf Stevenson v
Metropolitan Meat Industry
Commission (1937) SR(NSW) 109 at 118. Nor was
there any finding that the worker did not connect the injury and the
consequences thereof of the back strain which
occurred at home on 8 July 1979
to the back strain which occurred at work on 7 June 1979: cf Fenton v Owners
of Ship Kelvin, supra.
23. The next matter that the learned magistrate mentions is that the worker's
"whole attitude was that she hoped and expected to
make a complete recovery."
The learned magistrate does not specifically say that this attitude prevailed
throughout the whole of
the relevant period, nor that it was the cause, or
even a cause, of her failure to give notice or make the application within the
relevant period, but I infer that this is what the learned magistrate must
have meant.
24. There was no specific finding or concession
by the worker that she had
"voluntarily left the employment" within the meaning of s25(1). The facts as
found by the learned magistrate
are that the worker left the employment for
three reasons: "because she had hurt her back, hurt her fingers and was tired
of all
the industrial troubles that had been occurring." Section 25(1A) deems
a worker who leaves the employment "only by reason of the
fact that, because
of the injury received in that employment," she was unable to continue, not to
have voluntarily left the employment.
On these findings, no other conclusion
is possible but that the worker voluntarily left the employment. This
occurred, according
to the learned magistrate's findings, about three weeks
after the injury. Accordingly, the question of any excuse for the failure
to
give notice was limited to the circumstances during that period, and it was
not necessary to consider the circumstances thereafter:
cf Murray v Baxter,
supra, at 632-33.
25. I consider that there was evidence upon which the learned magistrate
might have concluded
that the failure to give notice before voluntarily
leaving the employment was occasioned by a reasonable cause. The worker
continued
in her employment up to then and did not leave the employment solely
due to her back injury. The worker's evidence, which the magistrate
accepted,
was that she thought it was a strain and whilst it was still sore, she thought
it would get better.
26. A hope and expectation
that a worker might make a complete recovery may
amount to reasonable cause as a matter of law. In Fenton v Owners of Ship
Kelvin,
supra, Pollock MR said, at 481:
"Efforts have been made from time to time to give some sort of
indication of what is 'reasonable
cause.' It is impossible, of course,
to give an inclusive definition of it, but in Webster v Cohen Brothers
6 BWCC 92, 97, to which our attention has been drawn, Buckley LJ says:
'We must distinguish between two different sets of facts: in the
one
the workman says, "If things continue as they are, I shall never
require to give notice of any claim for compensation"
; that might be
reasonable cause for not giving notice. The other state of facts is
this; the workman says to himself, "I
have had an accident, the
results of which are serious, but I think they will alter for the
better. I shall not give my employer
notice of the accident, because
if, as I hope, the results alter for the better, I shall never have to
give notice of a claim
for compensation at all." That is not
reasonable cause for the failure to give notice of the accident.'"
27. The learned Master
of the Rolls went on to say that there could be
difficulty in appreciating the line of demarcation between these two
contrasted statements,
but that, in cases where the injury is latent,
difficulty of diagnosis and perhaps of prognosis, it is easier to find that
there
was reasonable cause. Later (at 483) he concluded:
"A belief that the injury is trivial is a good excuse for
not giving notice.
The cases supporting that are to be
found in Willis's Workmen's Compensation, 23rd ed., p.122.
If we start with this fact,
and take the other cases, such
as Egerton v Moore (1912) 2 KB 308 or Webster v Cohen
Brothers 6 BWCC 92, I think it is plain there may be a
number of graduations, questions of degree, as to whether or
not the workman was apprised
so clearly of his condition,
its origin and its future, as to compel him or throw upon
him the duty of giving notice. When,
however, the true
measure of the situation is only arrived at by lapse of time
and by the confidence in the diagnosis which
arises from the
progress of the disease, particularly where the injury is
what may be called latent, then I think that the
workman is
more readily excused. But the measure of these degrees, the
estimate of these graduations are questions of fact
which
are for the learned county court judge. It appears to me
that in this case the learned county court judge had
materials
before him on which he could estimate, and did
estimate, in accordance with the cases cited and summarised
by Buckley LJ, and
he has come to a conclusion which he
might legitimately come to, and we ought not to interfere."
28. Atkin LJ (at 490-291) similarly
considered that a back strain, not
thought to be serious, might be a reasonable cause for delaying the giving of
notice.
29. A similar
finding was upheld by the High Court in Butt v John W Eaton Ltd
[1920] HCA 72; (1920) 29 CLR 126, the court also holding that there was evidence to support
the finding.
30. There is also authority for the proposition that ignorance
of the law,
when combined with other factors, may be enough to amount to "reasonable
cause": Melbourne and Metropolitan Tramways
Board v Witton [1963] VicRp 59; (1963) VR 417.
31. In these circumstances, I do not think that the finding in relation to
the failure to give notice can be disturbed: Nicolia
v Commissioner of
Railways, supra.
32. This leaves the question of whether there was evidence to support a
similar conclusion in
respect of the failure to make the claim within six
months. The relevant time frame for this inquiry is that period of time
commencing
upon the date when the worker left her employment, and expiring on
7 December 1979 (six months after the date of the injury). No
other period of
time is relevant for the purposes of the proviso: Murray v Baxter, supra.
33. The test of reasonableness, it is
to be noted, is an objective one. In
Commonwealth of Australia v Connors, supra, at 252, Northrop and Ryan said:
"As was said
by the court in Black's case (at 38), when
considering 'reasonable cause': '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 at 28, Sholl J, used these words: "The
sub-section 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.""
34. The further injury on 8 July could not be said to have been trivial.
There was no finding that
it was trivial. It was a serious injury which
resulted in the worker being hospitalised and having a significant operation
to her
back on 24 July. Thereafter the worker apparently recovered
sufficiently to return to work for a week in October, but by 7 November
it was
plain to her that she could not continue. She might have thought, up to the
time she recommenced work, that her back might
be getting better, and being
ignorant of her rights, decided to do nothing about it. The learned
magistrate found that she did not
consult a solicitor until years later. By
late October she had not been able to work at all for nearly four months, she
had been
hospitalised for a little over three weeks, and had continued to seek
medical treatment in the meantime. After 7 November she had
to give up work
again. There is no suggestion by the learned magistrate or in the evidence
that the worker was hoping for her injury
to stabilise before bringing any
claim. The learned magistrate did not consider the state of affairs as they
were by 7 November
and ask herself the questions: what were the reasons why
the worker did nothing at all after 7 November, and were those reasons
reasonable?
It may well have been that even in November the worker expected to
get better eventually, but the questions still have to be answered
(1) was
that a reason why the worker did nothing at the time and (2) if so, was that
reason, combined with her state of ignorance,
reasonable in an objective
sense, given her state of knowledge about her medical condition at that time?
35. The learned magistrate
did not approach the matter in this way, and, if
the decision rested solely on the facts as found, and the learned magistrate's
approach,
I would find that no reasonable cause had been established. But the
question is not limited to the facts as found. The question
is whether there
was any evidence which, if believed, would support that finding, regardless of
her Worship's reasoning. In my opinion,
no such evidence existed.
36. The evidence shows that the worker had a serious back problem. She knew
this at the latest, by 8
July 1979. This was confirmed by her experiences
thereafter. Assuming that up to then it had been reasonable for her to hope
to
eventually make a full recovery, she must have known by then that the
injury was not trivial. She obviously knew about her own period
of
hospitalisation. By the time of her discharge from hospital, it must have
been apparent to her that her recovery would, at best,
take some weeks, or
even months. By 7 November 1979, she obviously knew that she still had not
recovered sufficiently to return
to work, at least full time. She was
ignorant of her rights, but sought no advice. There was no evidence that her
medical advisers
had at any time told her that she would make a full recovery.
The source of her belief that she would make a full recovery eventually
was
not stated. There is no evidence that the worker was illiterate, or suffering
from any mental infirmity. The worker was then
nearly thirty-six years of
age, and so not an immature person. There was no evidence that at any time
during the relevant six months'
period, up to 7 December 1979, the worker ever
intended to make a claim and was simply waiting for her claim to stabilise: cf
Melbourne
and Metropolitan Tramways Board v Witton, supra. There is no
evidence that the reason for her optimism was based on anything other
than
hope, and there is therefore no factual basis for concluding that her failure
to bring a claim at that time was based on anything
other than ignorance. In
these circumstances, there are no facts upon which it could have been
concluded that the failure was reasonable
according to any objective criteria,
as all the facts were either neutral or pointed in the opposite direction.
Accordingly, the
only finding open to the learned magistrate was that the
worker, who bore the onus of proving that her failure to comply with s25
of
the Act was occasioned by a reasonable cause, had failed to discharge that
onus. The learned magistrate's finding on this issue
has no factual basis,
and therefore I am satisfied that the employer has established that an error
of law was made.
MISTAKE
37.
The next question is whether the learned magistrate should have found
that the failure to comply with s25 of the Act was occasioned
by mistake.
38. If the failure to so comply was occasioned by mistake, it is immaterial
to consider whether it is reasonable or
otherwise: Murray v Baxter, supra, at
629. In order to come within the proviso to s.25(1), a mistake may be one of
fact, or of law,
or of mixed fact and law: Murray v Baxter, supra, at 629-632.
For there to be a mistake, there must be evidence from which a conclusion
can
be drawn that the person concerned misconceived the true position: for
example, erroneously thought that one set of facts existed,
or erroneously
thought that the law provided for a particular right or remedy in certain
circumstances when in fact another set of
facts existed, or the circumstances
under which the law provided for the right or remedy, were different from that
envisaged. Such
a mistake might arise through an absence of information, if,
for example, the worker did not know that his medical condition was
due to a
back strain at work, he thinking it was due to some other cause. But, for
there to be mistake, there must be evidence that
the worker knew that in some
circumstances he is entitled to compensation, applied his mind to the
circumstances of his position
as he knew them to be, to the law as he
understood it and misconceived his true position in either fact or law or
both: Stevenson
v Metropolitan Meat Industry Commission, supra, at 118. This
is to be contrasted with the position of a person who does not think
about the
matter at all, who is in a state of passivity of thought owing to the absence
of any conception of the matter, or who is
not acting upon any misconception
of law or facts or both. Such a person's state of mind is one of ignorance,
not mistake: Murray
v Baxter, supra, at 630; Stevenson v Metropolitan Meat
Industry Commission, supra, at 117-118. A person who gives evidence that
he
knew that in given circumstances he may have a right to compensation (about
which he is not mistaken), but who did not know that
the right was subject to
procedural requirements that he give notice as soon as practicable and make a
claim within six months, is
not mistaken, but ignorant: Murray v Baxter,
supra, at 632; Black v City of South Melbourne [1963] VicRp 7; (1963) VR 34 at 37. Dietrich v
Dare (1978) 21 ALR 210 at 221 is to the contrary, and in my opinion should not
be followed on this point. Similarly, a person who was not aware of the
Act
at all, is ignorant, not mistaken: Roles v Pascall and Sons (1911) 1 KB 982;
as may be a person who simply did not know of the existence of a right to
claim under the Act in the given circumstances and who
thought no more about
it: Commonwealth of Australia v Connors, supra, at 250-52. And, of course, if
mistake exists, the mistake must
occasion the relevant failure to comply with
s25.
39. It was submitted by Mr Trigg, counsel for the worker, that on the facts
of
this case as found by the learned magistrate, or which were not in issue,
the proper conclusions to be drawn were that the worker
was mistaken, and that
this mistake occasioned the worker's failure to comply with the section.
40. I have already mentioned that
there is an absence of findings of fact by
the learned magistrate bearing on these questions.
41. In order to be able to find that
the learned magistrate should have found
that there was a mistake, there must be facts found by the learned magistrate,
or at least
undisputed evidence, from which, as a matter of law, such a
conclusion must be drawn. If those facts are equivocal, i.e. capable
of
supporting either conclusion, I am not in a position to find that there was a
mistake, and I shall have to consider whether or
not there is power for me to
remit the case to the Workers' Compensation Court for rehearing. There are
authorities in favour of
concluding that such a power exists (for example,
Turnbull v New South Wales Medical Board, supra; Pettitt v Dunkley, supra;
Zuijs
v Wirth Brothers Pty Ltd, supra) but, as these authorities are not
binding upon me, and no submissions have been made on that question,
I shall,
in that event, need to hear from the paries further. If on the other hand,
there are no such facts from which such a conclusion
might be drawn, the
appeal must be allowed.
42. In my opinion, there is no evidence upon which the conclusion might have
been drawn
let alone must have been drawn, that the failure to make the claim
was occasioned by mistake of any kind. An examination of the
evidence does
not advance the matter any further. Firstly, there is no evidence that the
worker misconceived her true position in
law in the relevant sense. On the
contrary, in her claim for compensation declared on 5 November 1987 (Ext 1)
the worker was asked
the following question:
"QUESTION 6:
If this claim is made more than six months after the
occurrence for the accident or
incapacity, give reasons for
failure to make the claim within that period."
43. Her answer was:
"ANSWER TO 6: The nature and
extent of my injuries and
subsequent general physical condition was such that I
travelled interstate for treatment. I was
ignorant of the
provisions of the Workers' Compensation Act, my entitlements
and obligations under it."
44. The travel interstate
did not occur in the relevant period and may be
ignored, but the second part of the answer shows only ignorance, not mistake.
There
is no evidence from which it might be inferred that, for example, the
worker thought that the Act did not provide for compensation
in the
circumstances of her case, she having applied her mind bona fide to that
question. The worker did say in evidence that she
did not make a claim
because she had left her work and did not know that she could do anything, but
this is not evidence of misconception,
only of ignorance: Commonwealth of
Australia v Connors, supra. At no stage did the worker say that she held a
belief that the Act
granted compensation only if she had remained at work. At
best, the worker's position was that she did not know one way or the other.
This is not evidence of mistake.
45. Nor is there any evidence of any mistake of fact. Nowhere does it appear
that the worker,
for example, thought that her injury on 8 July was
unconnected to her injury at work, and that because of this, she did not make
a claim in the relevant period. No such reason was ever proffered. At one
stage in her evidence it was put to the worker in cross-examination
that at
the time of her admission to hospital she made no mention to the hospital
doctors that she had been injured at work. She
responded by saying that her
reason for this was because she was not working then and did not even think
about it. Again, this is
not evidence of a mistake of fact. At best it
amounts to passivity of thought. In any event, there is simply no evidence
that,
whatever her state of mind may have been at that time, she remained in
the same state of mind thereafter. Given that the learned
magistrate found
that the pain had been constant throughout the whole period from the date of
her injury at work onwards and that
the pain was, at the time of the incident
at home, in precisely the same site and area as it had been following the
accident at work,
it would have been surprising if the worker had mistakenly
believed that the two incidents were unconnected. However, as I have
already
said, she never maintained that this was her state of mind.
46. Accordingly, I consider that I am left with no alternative
but to allow
the appeal and to 'reverse' the determination of the learned magistrate (see
s26(2) of the Act) by ordering that the
claim for compensation be dismissed
with costs.
CLAIM UNDER S10
47. It was also submitted by the employer that the learned magistrate
erred
in the award she made pursuant to s10 of the Act. In case I am wrong in the
conclusions I have so far reached I shall deal
with that submission briefly.
48. The foundation upon which the attack was based was that "her Worship
incorrectly found that the
claimant was a barmaid at the time of the
accident," when "in fact she was a supervisor." It is only if there was no
evidence to
support the magistrate's finding that this ground can possibly
succeed. In para 1 of the Statement of Claim, the worker pleaded
that she was
employed by the employer at all relevant times as a bar manageress. By para 1
of the Answer, this allegation was admitted.
In addition, there was evidence
that the worker was employed in a supervisory capacity: see the magistrate's
summary at p5 of her
reasons.
49. The learned magistrate does not explain in her reasons how it was that
she concluded that the worker was employed as
a barmaid at the time of her
injury. However, there was evidence that during the strike, her duties
changed and she was required
to do a lot of duties that one might think had
been ordinarily done by bar staff. There is evidence from which an inference
might
be drawn that the injury occurred during the strike, although there is
no finding to this effect. There was also evidence that the
worker served
behind the bar during this period, cleaned and stocked the refrigerators and
shelves, put beer kegs into fridges, counted
the money in the tills, restocked
the bar with potato chips, as well as supervised and organised the other staff
who were still working
during the strike and who were under her charge. There
was no specific evidence as to what the duties of a barmaid were at the
employer's
premises at the time, although there was evidence of the fact that
the worker, when employed as a barmaid on another occasion, poured
drinks,
sold drinks, carried trays of glasses, stacked fridges, polished glasses,
moved trays of drinks around, and gave out change.
I am unable to see how, on
these facts which the learned magistrate accepted, there was any evidence that
at the time of the injury,
the worker was employed as a barmaid, although her
duties at the time no doubt included some, if not all, of the duties of a
barmaid.
The finding that the worker was employed as a barmaid was crucial to
the ultimate finding by the learned magistrate that the worker's
loss of
function in her legs was in the percentages she found "for the purposes of her
employment as a barmaid" (see s10(6)(b) of
the Act). In those circumstances I
consider that the employer has established that an error of law was made by
the learned magistrate
on this issue as well.
50. If this had been the only error disclosed, I do not see how, in the
absence of any findings of fact by
the learned magistrate relevant to the
question of an assessment of loss of function as a supervisor, I could myself
make any findings
of my own as to the extent of the loss, as it is impossible
to say that any particular figure arrived at must be correct. In those
circumstances, it seems to me that I would have had to refer that issue back
to the Workers' Compensation Court for rehearing. However,
before doing so, I
would have invited further submissions from the parties as to my power to do
so.
51. Finally, Mr Trigg for the
worker very fairly pointed out that at the
hearing before the learned magistrate, little assistance was given by either
counsel on
the questions raised by the appeal. The learned magistrate was
referred to none of the authorities on the s25 point by the employer's
counsel, whose submissions did not analyse the provisions of the section and
address all the relevant issues of fact or law. Counsel
for the worker did
refer the learned magistrate to Murray v Baxter and to Dietrich v Dare, supra,
but no mention was made of the
other numerous authorities to which I was
referred at the hearing of the appeal. The problems raised by s25 of the Act
did not deserve,
in my respectful opinion, cursory submissions. The argument
before me took a full day, most of which was devoted to the s25 point;
yet the
submissions by both counsel before the learned magistrate occupy but a few
pages of the transcript. It is this standard
of advocacy which is very likely
to lead any magistrate or judge into error. It is the duty of counsel to draw
to the court's attention
all of the leading relevant authorities, and to
properly address the court on the relevant issues of fact and law. Judges and
magistrates
depend heavily upon the help of the bar in order to reach the
right conclusion. A high level of assistance from the bar is the norm
in this
Court. I have no reason to doubt that it is the norm in the lower courts.
For some reason, that norm did not prevail before
the learned magistrate.
However, as there may have been circumstances at the time of the hearing of
which I am unaware and which
may provide an explanation for what had occurred,
I refrain from criticising or attributing any blame to either of the counsel
involved.
52. In conclusion, the formal orders are:
- The appeal is allowed.
- The determination in favour of the worker is set aside
and in lieu thereof I substitute an order that the
application be dismissed with costs.
- The worker to pay the employer's
costs of the appeal to
be taxed.