In this edition, we address:
- A recent decision from the Tasmanian Civil and Administrative Tribunal confirming that despite Pilling, it is still possible to establish a reasonably arguable case on liability based on a worker’s failure to give notice of their injury as soon as practicable – Ella Synnott.
Strait Link Shipping Pty Ltd v C. [2024] TASCAT 29 (8 February 2024)
In this edition of our workers compensation case commentary, we review a recent decision from the Tasmanian Civil and Administrative Tribunal (Tribunal).
In Strait Link v C, the employer sought to dispute liability on the grounds that they were not informed about the worker’s injury as soon as practicable as required by the Act, and that the worker did not make his claim for compensation within six months of the injury. It is considered by some employers and insurers that since the Supreme Court case of Tasmania v Pilling [2020] TASSC 13 (8 May 2020) (Pilling), disputing liability on such grounds has become more difficult. This case demonstrated that perhaps more evidence is required, but the evidentiary threshold remains the same.
Background
The worker had made a claim for compensation around 10 November 2023 for injuries he suffered to his neck, shoulder and back while driving a forklift at work on 20 February 2023.
The claim was supported by an initial workers compensation medical certificate dated 9 November 2023. The certificate recorded that the worker had injured himself when he hit a pothole while driving the forklift on 20 February 2023.
The worker’s employer disputed their liability to pay compensation to the worker and filed a section 81A referral under the Workers Rehabilitation and Compensation Act 1988 (Act).
The employer’s dispute was on two grounds:
- First, the employer said the worker failed to give notice of injury to his employer as soon as practicable after the injury occurred.
- Second, the employer says the worker failed to make a claim for compensation with respect to the injury within six months after the date of the occurrence of the injury.
The failure to give notice as soon as practicable
The following facts were accepted at the hearing:
- The worker’s injury occurred sometime between 20 February 2023 and 23 February 2023.
- The worker commenced five days of being rostered away from work after 23 February 2023, and thereafter contacted the employer to advise he needed a further three days off on sick leave.
- At some point during his time away from work, the worker sought treatment for the injury.
- The worker gave notice of his injury to the employer on 10 March 2023.
- The Tribunal concluded that it was reasonably arguable that notice of the injury could practicably have been given before the worker commenced his period of being rostered off after 23 February 2023, or at any time while he was away from work by contacting his employer, as the worker did to arrange sick leave.
In other words, the Tribunal found that it was reasonably arguable that the worker failed to give notice of his injury to his employer as soon as practicable after the occurrence of his injury. This meant that the worker had potentially failed to comply with section 32(1)(a).
The Tribunal noted however, that the failure of a worker to comply with section 32(1)(a) is not necessarily fatal to a worker’s claim if the worker is able to demonstrate that section 37 of the Act applies in relation to their claim.
What does section 37 say?
Section 37 of the Act provides that the worker’s failure to give notice as soon as practicable does not affect the worker’s right to claim compensation if:
- the failure was occasioned by mistake, absence from the State of the worker or other reasonable cause; and
- it is found in the 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.
In this case, the worker did not provide any evidence about the reason he may not have given notice of his injury before he did. Accordingly, the Tribunal determined that there was no evidence as to whether the worker’s arguable failure to give notice of injury as soon as he practicably could have done, was occasioned by mistake, absence from the State or any other cause (whether reasonable or not), in accordance with section 37(1)(a).
In making submissions with regard to prejudice, the employer provided evidence of their injury management processes and procedures. The employer argued that if they were informed of the injury, they would have commenced their rehabilitation process and sought thorough medical opinion on the appropriate treatment to help the worker recover promptly. This is done as a prudent course to show what could have been done if notice of a workplace injury is provided in a timely manner.
The Tribunal concluded that while the employer asserted that much more could have been done to manage the worker’s injury, it seemed unlikely that any of the injury management processes could have happened in the worker’s absence.
On that basis, the Tribunal did not think that the employer’s evidence established potential prejudice.
Does it matter that prejudice was not established?
The Tribunal referred to the Supreme Court case of Pilling where he said at paragraph 43:
“In a case where the circumstances of the case appear to demonstrate the probability that the deficiency of notice has arisen from a mistake or other reasonable cause, the absence of any evidence of prejudice to the employer may justify a conclusion that the employer has not shown an arguable case that s 37 does not apply to the deficiency of notice. Of course, where the employer can demonstrate that there is a real issue about the cause of the deficiency, then that alone may establish a reasonably arguable case, irrespective of the question of prejudice.”
In other words, it is not strictly necessary that the employer has to establish prejudice to show a reasonably arguable case. Given the use of the conjunctive word ‘and’ at section 37(1), the worker has to first provide evidence under section 37(1)(a) that their failure to give notice was occasioned by mistake, absence from the State of the worker or other reasonable cause.
In Pilling, the worker had provided evidence to explain why there was a failure to give notice as soon as practicable which was accepted by the Court to amount to a mistake for the purpose of section 37. The Court then turned to the prejudice suffered by the employer, concluding that there was no such finding. On that basis, the employer was not awarded a reasonably arguable case finding.
The circumstances in Pilling can be differentiated to this case, noting that no evidence was advanced by the worker to explain why there was a failure to give notice as soon as practicable. On that basis, it did not matter that the employer failed to establish prejudice because the employer is only borne with that onus when, and if, the worker has raised evidence relevant to establishing section 37(1)(a) of the Act.
Learning points
- Prejudice to the employer is not a necessary requirement in failure to give notice cases unless a worker provides evidence in support of section 37(1)(a). Despite this, it always best to approach hearings on the basis that the worker has evidence or has the ability to obtain evidence in support of section 37(1)(a).
- Further, in respect to prejudice, employers need to keep in mind the distinction between ‘speculation’ and ‘counterfactual’. As a general rule, speculatory evidence or conjecture is usually not accepted. However, ‘counterfactual’ evidence is when a party is explaining what would have been done if something else had happened first. Such evidence would usually be accepted.
- A submission was made on behalf of the employer that there was no need for the employer to comply with section 33A in circumstances where the worker gave notice of injury, but also advised that he was “all right to be at work”, and “fine”. The Tribunal has clarified that it is the notice that a worker has suffered an injury that triggers the obligation for an employer to provide notice to a worker of the right to make a claim. The extent of a worker’s symptoms or capacity at the time is irrelevant to the employer’s obligation. As such, employers are reminded to inform injured workers of their right to make a claim no matter how trivial the injury.
More information
If you have any questions about this commentary, please do not hesitate to contact us.
| Mat Wilkins Principal M: 0419 106 417 E: mwilkins@pageseager.com.au |
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| Tom Pilkington Principal M: 0417 669 478 E: tpilkington@pageseager.com.au |
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| Ella Synnott Lawyer T: (03) 6235 5186 E: esynnott@pageseager.com.au |
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