Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279 (12 October 2006)

Last Updated: 13 October 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279



FILE NUMBER(S):
40710/05

HEARING DATE(S): 28 August 2006

DECISION DATE: 12/10/2006

PARTIES:
Wollongong Fabrications Pty Ltd
Peter Ramsbottom

JUDGMENT OF: Mason P Hodgson JA Tobias JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 779/01

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

COUNSEL:
A: P W Neil SC / T Wardell
R: M L D Einfeld QC / S Longhurst

SOLICITORS:
A: Edwards Michael, Sydney
R: Russell McLelland Brown, Wollongong

CATCHWORDS:
WORKERS COMPENSATION – notice of injury – nature of notice required under s 151C(1) of the Workers Compensation Act 1987 – effect of non-compliance with s 151C(1) – whether conduct of case gave rise to Verwayen estoppel – whether question of notice is capable of determination as a separate issue – interaction between the Workers Compensation Act 1987 and Workplace Injury Management and Workers Compensation Act 1998

LEGISLATION CITED:
District Court Rules 1973
Evidence Act 1995
Workers Compensation Act 1987, s 151C(1)
Workers Compensation (Benefits) Amendment Act 1989
Workers Compensation Legislation Amendment Act 1998
Workplace Injury Management and Workers Compensation Act 1998

DECISION:
(a) Leave to appeal granted upon condition that the claimant file its Notice of Grounds of Appeal within seven days of the date of these orders
(b) Appeal allowed
(c) Set aside the orders made by his Honour Judge Phelan on 11 August 2005
(d) Remit the proceedings to the District Court for the hearing of the whole of the opponent’s action
(e) The opponent to pay the claimant’s costs of the proceedings before Judge Phelan on 1 March 2005, 2 March 2005 and 9 June 2005
(f) The opponent to pay the claimant’s costs of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40710/06

DC 779/01

MASON P

HODGSON JA

TOBIAS JA

Thursday 12 October 2006

WOLLONGONG FABRICATIONS PTY LTD v PETER RAMSBOTTOM

Facts

The opponent instituted proceedings against the claimant, his employer, seeking damages for injuries allegedly occasioned by the claimant’s negligence. The claimant argued that the proceedings were commenced in contravention of s151C(1) of the Workers Compensation Act 1987 (the WC Act), which provides that

A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.

The primary judge noted that this issue amounted to a question of whether the opponent had given “notice of the injury” to the claimant within the meaning of this provision, and concluded as a preliminary matter that the opponent had given notice for the purposes of this provision.

Held, allowing the appeal with costs and remitting the proceedings to the District Court for the hearing of the whole of the opponent’s action:

Per Tobias JA (Mason P and Hodgson JA agreeing)

1. There is nothing in the legislation that would prevent a worker to whom compensation is payable under the Workplace Injury Management and Workers Compensation Act 1998 from desisting from making a claim for such compensation but instead, commencing court proceedings for damages in respect of the same injury. However, he or she is not entitled to commence such proceedings until six months have elapsed from the time notice of the injury is given to the employer: [112].

2. It is not possible to construe the expression “notice of the injury” in s151C(1) as meaning a notice that meets the requirements of s62(1) of the Workplace Injury Management and Workers Compensation Act 1998 merely because s61(1) uses the expression “notice of the injury” and s62(1) provides for what that notice must state: [113].

3. Furthermore, given that s151C provides a regime referable to damages while ss61–62 relate to compensation, there is some difficulty in concluding that the provision for the giving of notice of the injury in one is directly comparable to the giving of such a notice in the other: [113].

4. Although the primary objective of s151C was to encourage an injured worker to attempt in the first instance to satisfy his or her claim for damages by negotiation with the employer rather than by immediate recourse to litigation, the statute does not oblige a worker to engage in any form of negotiation or settlement procedure during the six month period which s151C(1) envisages: [114], Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214 referred to.

5. The structure of the legislation means that the statutory requirements for the recovery of compensation by an injured worker are more formal and detailed than in the case of a claim for modified common law damages: [123].

6. The purpose of s151C(1) is to provide a period within which the parties may negotiate an out of court settlement, if they wish to do so, and to provide the employer with the opportunity of further investigating the matter: [123].

7. The notice of injury required under s151C(1) must be sufficient to put the employer on notice to enable it to investigate the circumstances of the injury. However, the notice does not have to include information as to the cause of the injury or the accident out of which the injury arose, or details of the work being performed when the injury was sustained: [124].


IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40710/06

DC 779/01

MASON P

HODGSON JA

TOBIAS JA

Thursday 12 October 2006

WOLLONGONG FABRICATIONS PTY LTD v PETER RAMSBOTTOM

Judgment

1 MASON P: I agree with Tobias JA.

2 HODGSON JA: I agree with the orders proposed by Tobias JA and, subject to what I say below, substantially with his reasons.

3 Apart from the order that the claimant (Wollongong) pay the opponent’s (Mr. Rambottom’s) costs, it is not clear what if any orders were made by the primary judge. It does not appear that an order was made for hearing the s.151C defence as a separate issue; the primary judge’s expression of non-satisfaction that the defence had been established does not appear to be an order; and the primary judge’s expression of satisfaction that Wollongong should be estopped from raising the defence likewise does not appear to be An order.

4 However, Mr. Einfeld SC, for Mr. Ramsbottom, took the position that there had been a determination of a separate issue, and that the primary judge could not re-visit the question after hearing all the evidence in the case; and Mr. Neil SC for Wollongong did not dissent from this. Accordingly, in my opinion it is appropriate for this Court to proceed on that basis.

5 Although there may be circumstances in which it is appropriate to determine a s.151C defence as a separate issue, in my opinion those circumstances plainly did not exist in this case. Quite apart from questions of procedural fairness referred to by Tobias JA, in this case (1) there was a real dispute as to what if any injury occurred to Mr. Ramsbottom on or about 13 February 2001, in which his credibility and probably that of other witnesses would be challenged; (2) resolution of the question of whether the claimed injury occurred was likely to be affected by evidence of what if anything Mr. Ramsbottom said about the matter in the days and weeks following, including any conversation he relied on as constituting notice to Wollongong; and (3) determination of whether anything he said amounted to notice of the injury depended on determining what if any injury occurred and what was said to representatives of Wollongong at various times. Accordingly, the s.151C defence involved factual and credibility issues so intertwined with other issues in the case as to make it entirely unsuitable for separate determination.

6 On the question of estoppel, the primary judge’s reasons were inadequate. Generally, any prejudice arising from belated amendments should be raised at the time the amendment is sought, so that the Court can exercise the discretion referred to in Berowra Holdings Pty. Limited v. Gordon [2006] HCA 32, 80 ALJR 1214, at [39] in the joint judgment of Gleeson CJ, Gummow, Haine, Heydon and Crennan JJ, and at [104]–[108] in the judgment of Kirby J. Once the amendment is allowed, then a very strong case would be required to preclude reliance on it. Such a case succeeded in The Commonwealth v. Verwayen [1990] HCA 39; (1990) 170 CLR 394; but in that case, the Commonwealth had stated a policy of not relying on a limitation defence, and by its deliberate decisions and statements had induced the plaintiff to proceed. There was no suggestion of anything comparable in this case.

7 TOBIAS JA: By ordinary statement of claim filed on 21 November 2001, Peter Ramsbottom (the opponent) instituted proceedings in the District Court against his employer, Wollongong Fabrications Pty Ltd (the claimant), seeking damages for injuries allegedly occasioned by the claimant’s negligence. In its amended Notice of Grounds of Defence filed on 30 January 2004, the claimant pleaded that the proceedings could not be maintained as they were commenced in contravention of s151C(1) of the Workers Compensation Act 1987 (the WC Act).

8 Over the objection of the claimant, the primary judge, Judge Phelan, acceded to an application by the opponent made to him on 1 March 2005 that the issue raised by the claimant’s defence based on s151C(1) should be determined as a separate issue. That issue was whether the opponent had given “notice of the injury” to the claimant within the meaning of that provision, being the injury in respect of which workers’ compensation was payable under the WC Act for which the claimant was liable.

9 Evidence with respect to the determination of that issue was given before the primary judge on 1 March 2005 and, it would appear, submissions on the issue were made to his Honour on 2 March 2005 and 9 June 2005. Judgment was reserved at the conclusion of the hearing.

10 On 11 August 2005 the primary judge delivered his judgment with respect to what he referred to as the “preliminary matter”, concluding that he was satisfied that the opponent did give “notice of injury” for the purpose of s151C(1). As a result, his Honour was not satisfied that the claimant’s defence based on the opponent’s non-compliance with that provision had been established. His Honour then ordered that the claimant pay the opponent’s costs of, I assume, the determination of the “preliminary matter”.

11 The claimant seeks the leave of this Court to appeal against the primary judge’s decision first, to accede to the opponent’s application that the claimant’s defence based on non-compliance with s151C(1) be determined as preliminary matter and, second that the relevant notice had been given. That application and the substantive appeal were heard concurrently.

The pleadings

12 The opponent’s statement of claim pleaded that at all material times he was employed by the claimant as a foreman. Paragraph 3 alleged the following:

“On or about 13 February 2001 the plaintiff, in the course of his employment with the defendant, was engaged upon a construction site known as the Domayne Shopping Complex situated at Warrawong and was attempting to move a roof bracing pipe which was in an access way when he suffered serious injury to his back.”

13 Paragraph 4 then alleged that the opponent’s injuries were occasioned by the claimant’s negligence. Particular 5(d) asserted that the claimant was negligent in that it

“allowed the plaintiff to be involved in heavy lifting even though the defendant well knew that the plaintiff had a prior back problem.”

There were a number of statutory counts, which can be ignored for present purposes.

14 Paragraph 14 of the statement of claim alleged that the plaintiff sustained the following injuries:

“Broad-based bulging of the posterior annulus of the L4/5 disc with moderately severe infringement on the thecal sac.”

15 In its amended Notice of Grounds of Defence, the claimant pleaded the following in par 15:

“In answer to the whole of the Plaintiff’s claim, the Defendant says that these proceedings cannot be maintained as they were brought in contravention of Section 151C of the Workers Compensation Act in that at no time prior to the issue of the Statement of Claim had the Plaintiff reported the injury to the Defendant.”

16 It will be observed that although it is clear that in par 13 of its defence the claimant alleged that the proceedings had been commenced by the opponent in contravention of s151C(1) of the WC Act, the allegation that “at no time prior to the issue of the statement of claim had the plaintiff reported the injury to the defendant” did not strictly follow the words of the section. Accordingly, when the matter came before the primary judge on 1 March 2005, the fact that the wording of par 13 did not reflect the words of the section prompted an application to his Honour by the opponent to strike out that paragraph.

17 The claimant immediately sought to amend par 13 by deleting the words following the reference to the WC Act and by inserting in lieu of the words:

“in that at the time the proceedings had commenced, six months had not elapsed since notice of the injury was given to the defendant.”

The primary judge allowed this amendment.

The relevant facts

18 It was common ground that on 8 March 1996, while employed by the claimant as a foreman boilermaker, the opponent had injured his lower back when lifting an angle iron used to support the ceiling of a building being erected on the site of the Chatswood Chase Shopping Centre at Chatswood. On the same date the opponent gave notice of the injury to the claimant and on 11 November 1996 lodged with the claimant a compensation claim form setting out his personal details, a list of his dependants, a description of how the accident occurred, the name of a witness, and details of the injury he had sustained.

19 Under the heading “Injury Details” and the subheading “To whom was the accident reported?” the opponent had written in the name of “Denis McIllhutton”. He and Mr Donald Harper were the directors of the claimant. Under the same heading appears the question “Was the part normal before the accident?” to which the opponent responded by ticking the box marked “yes”. Mr McIllhutton signed this claim form on 19 November 1996 evidencing that the claim was received on 18 November 1996.

20 The claimant’s workers compensation insurer on risk with respect to the opponent’s 1996 injury was MMI (now Alliance Australia Workers Compensation (NSW) Ltd) (Alliance) and the compensation claim form completed by the opponent was an MMI form. Between 1996 and 2001 the claimant changed its workers compensation insurer to Employers Mutual Indemnity (Workers Compensation) Ltd (EMI).

21 As a consequence of the back injury he sustained on 8 March 1996, the opponent received workers’ compensation payments from MMI including a lump sum payment under s66 of the WC Act pursuant to an agreement filed with the Compensation Court of New South Wales in 1999.

22 In 2000 the claimant tendered and won the job of erecting all structural steel rafters for the construction of the Domayne Shopping Complex at Warrawong. Work on the site commenced in late 2000 and continued until approximately April 2001. The opponent was employed on that job as the foreman/supervisor in charge of up to six employees. The evidence of Mr McIllhutton before the primary judge was that he was aware of the opponent having stepped into a pothole and jarring his leg in the course of the Warrawong job.

23 That incident was confirmed by the medical notes of the opponent’s general practitioner, Dr Patrick Bradley, dated 19 January 2001. Dr Bradley records that he was consulted by the opponent with respect to a twisting injury to his right knee on 16 January 2001. Those notes also a revealed a further consultation with the opponent on 14 February 2001, which recorded the following:

“C/O numbness [ IMAGE ] leg

below knee

... calf muscle

+ recurrence of back pain

? working too hard w back problems”

The note then records an examination of the circumference of the opponent’s right calf and other aspects of the lower part of his leg.

24 The opponent also consulted Dr Bradley on 19 March 2001 in respect of which his notes recorded a numb sensation in the right calf and examination by him of the opponent’s right lower leg. The notes also recorded the following:

“Back injury 4 years ago – constant pain

Paid 2 weeks.”

25 On 21 March 2001 the opponent lodged a further MMI compensation claim form with the claimant in the same format as that lodged in 1996. However, under the heading “What Happened?” and in answer to the question “How did the accident occur and what were you doing at the time?”, the opponent wrote in his own hand “Re-occurring injury 4 years ago”.

26 Next to the heading “Injury Details”, the opponent wrote in his own hand “MMI claim no. 9707027000538” which was the MMI claim number assigned to the opponent’s compensation claim in respect of the injury he sustained on 8 March 1996. None of the other questions under that heading were filled in except the following: “What parts of the body were affected?” in response to which the opponent had written “BACK”. In answer to the question “Was the part normal before the accident?”, he had ticked the “yes” box.

27 It is noticeable that, unlike the answer in his 1996 form to the question “Date notice given” (where he had inserted “8/3/96”), that question was left unanswered in the claim form submitted by the opponent to the claimant on 21 March 2001. Mr Harper signed this claim form on the same day that it was signed by the opponent, namely, 21 March 2001, evidencing the date the claim was received.

28 On 11 October 2001 the opponent lodged with AMP a Superannuation Disablement Claim – Employee Statement dated 8 October 2001. Under the heading, “Please state the reason you ceased work”, the opponent had handwritten “Back Pain, Leg Pain, Carf Pain and Right Leg num”. In response to the question, “What date did you last actively work?”, he inserted the date 3/4/01.

29 Under the heading “What is the exact nature of your injury or illness?” the opponent had written

“Broad-based bulging of the posterior annulus of the L4/5 disc with moderately severe infringement of the thecal sac.”

This was the exact injury pleaded in his statement of claim. Importantly, in answer to the question “On what date did the injury occur or did you first become ill?”, the opponent had handwritten “8/3/96”. Furthermore, in answer to the question “Have you ever suffered from the same or similar injury or illness? (please give details below)”, under the column headed “Date of Episode” the opponent had inserted the date “8/3/96”.

30 A number of medical reports tendered before the primary judge on behalf of the claimant detailing the histories given to the relevant medical practitioners by the opponent were admitted following objection. The claimant’s submission was that they established that histories taken from the opponent after February 2001 by the relevant practitioners were not related to any injury allegedly sustained by him on 13 February 2001.

31 On the contrary, they all related to the history of low back injury sustained by the opponent whilst working on the steel angles in the roof of the Chatswood Chase Shopping Centre in March 1996. Thus, for instance, Dr Ross Mills, a specialist in occupational medicine, in a letter to the opponent’s general practitioner, Dr Bradley, dated 1 May 2001, under the heading “HISTORY OF PRESENT CONDITION” wrote:

“Peter has a long history of low back pain dating to an incident occurring on 8 March 1996. He describes that at the time he was lifting angle steel overhead when he developed the sudden offset of low back pain. He continued at work although reports increasing pain at the same with pain radiating down his left leg. ... In February this year he had a worsening of his low back pain with associated pins and needles affecting his right knee and calf. Due to this he presented to you on 13 February 2001. There is no prior history of right-sided symptoms and no incidents prior to this aggravation to account for this.”

32 Again, Dr Jenni Saunders wrote to Alliance on 7 May 2001 in which she referred to a consultation with the opponent on the same date and which recorded the following history of injury:

“Mr Ramsbottom states that some 4 years ago, on 8 March 1996, he had the onset of low back pain while lifting steel angles above his head. He noticed the onset of pain, but did not pursue treatment until some 6 months when the pain became quite severe ... MRI scanning was also undertaken and his back pain improved. He states that he has had intermittent pain since this time.

On 13 February 2001 he became quite concerned because of the onset of right calf numbness, which was extending up to his knee. He sought medical attention, as he thought that he may have vascular disease. I understand that Doppler scanning was undertaken by his general practitioner which showed no abnormality. He therefore attributed the numbers to the exacerbation of his low back and referred him for physiotherapy. He also ceased work at the beginning of April and has remained off work until today. ...

Of note is that no specific event that he could identify led to the deterioration in his low back problem.” (Emphasis added.)

33 Dr Saunders also answered the following questions:

“1. How was [this injury] sustained?

This injury is the deterioration and acceleration of his prior injuries. I believe it has been sustained by carrying out his normal work duties, which involve lifting which compresses the discs.

2. Is this a new injury/incident?

This is not a new injury or incident, but is an acceleration of his prior injury.

3. Do you feel that the condition from which this claimant is suffering is a work-related condition?

Yes. This gentleman sustained an injury to his lumber spine in 1996, which has continued to deteriorate and he now is exhibiting signs of nerve root compression.”

34 The only other medical report to which I will refer is that of Dr W A Stenning dated 30 June 2001 addressed to Dr Bradley. He saw the opponent on 23 July 2001 and recorded

“that he hurt his back at work some 4 years earlier and more recently has had numbness and pain in his right calf and tenderness in the left calf muscle.”

35 After stating that there was little to find on examination, Dr Stenning recorded the following radiographical findings:

“CT scan done on 30th October 1996 showed a moderate broad-based disc protrusion of the L4/5 level. An MRI done on 7th January 1997 confirmed this. A CT scan done on 7th June 2001, showed that the degenerative changes were slightly more advanced and he now has a mild lumbar canal stenosis at the L4/5 level.”

There are other medical reports and assessments which it is unnecessary to refer to for present purposes.

The proceedings before the primary judge

36 The proceedings were listed for mention before the primary judge at Wollongong on Friday, 25 February 2005. On that occasion the opponent was represented by a solicitor and the claimant by a solicitor as agent for his Sydney solicitors. After it was clarified that the hearing would commence the following Tuesday, 1 March, the opponent’s solicitor informed his Honour that there was a s151C defence in which it was contended that the opponent had not notified the claimant of the injury at least six months prior to the commencement of the proceedings. It was suggested to his Honour that if that issue was run first and the opponent won that argument, then the case might well settle. On the other hand, if the claimant won the argument, then that would be the end of the case.

37 After asking how long such an application was likely to take, his Honour then asked the opponent’s solicitor whether any affidavits had been filed. The solicitor responded:

“No, there’s no affidavits because it’s formally part of their defence, so it’s going to run as a substantive issue in the trial.”

His Honour then confirmed that the matter would proceed the following Tuesday.

38 On that day, counsel for the opponent reminded the primary judge that it had been mentioned the previous Friday that there would be an application to deal with the s151C defence “as a preliminary issue”. Counsel then suggested that the claimant would bear the evidentiary onus of establishing the defence and, if he could, to present such evidence as he wished in order to establish the relevant facts. He then said:

“If necessary your Honour, I would then elicit whatever evidence we regarded as appropriate in rebuttal of those facts and your Honour there would be some legal submissions as to the defence itself as to whether or not that which is pleaded can properly give rise to it your Honour.”

39 Counsel for the claimant then informed his Honour that it was his understanding that the matter had only been mentioned the previous Friday and that the whole action was listed for hearing on Tuesday. Although it had been foreshadowed on behalf of the opponent that the defence raised in par 13 could be dealt with as a separate issue, counsel submitted that for various reasons it was inappropriate for the matter to so proceed.

40 The primary judge then indicated that he had been led to believe that question of the application of s151C would be disposed of as a preliminary issue, and that the full trial on the action would only proceed if the opponent was unsuccessful on that point. Counsel for the claimant responded in these terms:

“Your Honour I am handicapped in not really being clear about what happened when this matter was mentioned before you as I understand it on Friday. My understanding was that the whole action was listed for hearing and there was discussion about whether it could commence on Monday or whether it could commence today, and that it was foreshadowed I understand on behalf of the plaintiff that this matter in paragraph 13 of the amended defence was an appropriate matter to be dealt with as a legal point, but that the whole case for some reason or other, for various reasons it was not appropriate for that to proceed this week.”

41 After his Honour remarked that it was a simple issue as to whether the opponent reported the injury to the claimant within the six months, counsel for the claimant relevantly responded as follows:

“the plaintiff’s position is it was reported or notice was given, the defendant for its part on the material available to it presently knows nothing of that. The plaintiff gave a series of histories to many doctors about what happened many of which bear upon whether indeed there was actually an accident on the day pleaded in the statement of claim. This plaintiff was injured quite some years before quite seriously it would seem in relation to his low back, and the defendant’s position is the present situation is a continuation of an injury some years prior to that pleaded. There’s no record whatever of the injury pleaded, and there are some medical histories that are inconsistent

Now the defendant wishes to present a case which calls into question whether or not there was in fact an accident on 13 or 14 February 2001 to the plaintiff as the workplace. That’s a fairly major factual battle potentially.

HIS HONOUR: Yes?

NEIL: So my submission is it’s really not suitable as a preliminary point and –”

42 The primary judge then suggested to the opponent’s counsel that nothing had been said the previous Friday by the claimant’s solicitor’s agent in opposition to the foreshadowed application. However, it is appropriate to note at this point that there was no evidence to suggest that, prior to it being referred to at the mention on the previous Friday, the opponent’s solicitors had given any notice to the claimant’s solicitors that they proposed to make an application for the s151C defence to be the subject of a separate hearing; nor had any notice of motion been filed in compliance with Pt 16 r1 and 3 of the District Court Rules 1973 (the Rules) seeking an order pursuant to Pt 26 r5AA that whether the defence had been made out in fact or in law be tried separately from any other questions in the proceedings.

43 The opponent’s counsel then submitted that the claimant’s assertion that the opponent’s proceedings were not maintainable was one which could classically be dealt with as a discrete issue. He then remarked:

“Let them call their evidence and if it gives rise to a need for the plaintiff to answer those factual matters, let the plaintiff call that evidence, and to the extent that relevant legal principles are required to be considered they can be considered.”

44 The opponent’s counsel further submitted that it was in the interest of the proper administration of justice that the subject defence should be sorted out in advance, for otherwise the parties would be faced with a two week trial. The primary judge accurately observed that the opponent had had 13 months (since January 2004) in which to “do something about that yourselves”. Counsel for the opponent then applied to strike out par 13 of the defence on the basis that it failed to raise the facts required to be proved for s151C(1) to apply to which counsel for the claimant responded that par 13 had been inserted in an amended defence filed in January 2004 with the consent of the opponent’s solicitor. Although it was imperfectly pleaded in that that did not accurately reflect the words of s151C(1), it nevertheless was clear that the claimant was intending to rely on that provision and, therefore, the ingredients of the section.

45 His Honour was then informed that not only had the opponent known for a long time that the claimant was intending to rely on s151C but also that its case was that no injury had been sustained by the opponent on 13 February 2001 contrary to the allegation set forth in par 3 of his statement of claim (see [12] above). Counsel stated that there was a real issue as to whether there was any injury to the opponent on 13 February 2001 given the histories in the medical reports which the claimant had served.

46 The claimant’s counsel informed his Honour that it would be necessary to extensively cross-examine the opponent to establish that there was no relevant injury that would require notification pursuant to s151C so that the claimant’s position was that if it could

“cast real doubt on whether there was such an incident then its against all probability that there would have been any notice given because there was nothing to give notice of.”

47 Notwithstanding these submissions, the primary judge, without giving any reasons, then indicated that he proposed to start the hearing and to deal with the s151C defence “as a separate issue” but that if it appeared that the claimant was prejudiced, he would consider an application to adjourn the matter part-heard.

48 The claimant’s counsel then sought to amend par 13 of the defence in the manner to which I have referred in [17] above. His Honour permitted the amendment notwithstanding an objection from the opponent’s counsel.

49 The claimant’s counsel then sought to tender a number of documents which were admitted without objection and a number of medical reports which were admitted “following objection”. He informed his Honour that the documents were being tendered as they contained histories given by the opponent to a medical practitioner, although he acknowledged that no notice had been given pursuant to s60 of the Evidence Act 1995 in relation to the fact that some of them contained hearsay. After his Honour noted that they might not be admissible for this reason, the claimant’s counsel said this:

“That confronts me with the kind of potential difficulty that I adverted to earlier today your Honour, that I don’t have, I might be able to get but I don’t have at the moment, these many practitioners, and they’re clearly relevant for me to establish that such histories were given if I can do it through them, and the relevance of the histories is to the point that I was seeking to make earlier that there’s at least an issue about whether any discrete injury was suffered in the middle of February 2001, or whether it was merely a flare up of an injury that on any view seems to have occurred in 1996.”

50 It is apparent that the claimant’s counsel was submitting to his Honour that his client would be disadvantaged if the relevant histories were not admitted as evidence of the fact or if he was unable to cross-examine the opponent with respect to them. In other words, if the relevant histories given by the opponent to the doctors were not admissible as evidence of their truth, the claimant should be given the opportunity of either calling the doctors to give first-hand evidence (and apparently some or all of them had been subpoenaed) or at least to cross-examine the plaintiff in order to obtain an admission that those histories were accurate.

51 Accordingly, given that objection was taken to the admission of the histories as evidence of the truth of their contents and the inability of the claimant to cross-examine the opponent, which he would be able to do if the trial proceeded in the normal course and the plaintiff was called as the first witness, the claimant’s counsel took advantage of his Honour’s suggestion that he would consider an application to adjourn the matter if the claimant was prejudiced by making an application to have the s151C issue heard as part of the full trial of the action.

52 This application was opposed by the opponent’s counsel who submitted the following:

“I mean the critical question is not what the plaintiff might or might not have said to a doctor or physiotherapist or rehabilitation person during the course of 2001, but what notice if any the defendant had. That is a matter for the servants or agents of the defendant corporation to tell your Honour, and if appropriate the plaintiff to tell you what he, if anything, said to servants or agents of the defendant.” (Emphasis added.)

53 The primary judge’s response to this submission was as follows:

“I propose to proceed with this aspect of the case.”

No reasons were articulated by him for taking that course.

The evidence called at the hearing of the “preliminary issue”

54 The claimant’s counsel then proceeded to call a number of witnesses of whom two gave evidence that is presently relevant. The first was Ms Lisa King who at all material times was a clerk in the employ of the claimant. Her responsibilities included dealing with the claimant’s workers’ compensation insurers when a claim for workers compensation was made by an employee. The essence of her evidence was that the opponent had only ever sustained one injury to his back, which occurred in 1996. She also said in chief that she was unaware until October 2004 that the opponent alleged that he suffered a work injury in mid February 2001. When it was suggested to her in cross-examination that that evidence was untrue, she said “No, it’s not”.

55 Part of Ms King’s cross-examination consisted of the following exchange:

“Q. You remember that Mr Ramsbottom had his employment terminated?

A. Yes.

Q. Exactly twenty-six weeks after the claimed date of injury, namely 13 February 2001?

A. Yes.

Q. Having fulfilled that obligation a decision, I take it that you weren’t involved in, was made to terminate his services?

A. That’s correct.

Q. There would have to have been a claim on foot referrable back to a given date for that to have happened, wouldn’t there?

A. And it states it was a pre-existing 1996 injury.

...

Q. The twenty-six weeks started from a particular date, didn’t they?

A. The date he then claimed.

Q. So you knew then when he was being paid workers compensation payments that he had claimed an injury on a particular date, didn’t you?

(No verbal reply)

A. I don’t remember.”

56 Although this evidence was not referred to by the primary judge, on the hearing of the appeal it was submitted that that evidence established that Ms King, and therefore the claimant, must have been aware that the opponent had been injured on 13 February 2001 as his employment could not have been terminated until he had received 26 weeks compensation after the claimed date of injury.

57 However, s36(1) of the WC Act says nothing with respect to the termination of an injured employee but merely provides that the weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity is to be the amount of the worker’s current weekly wage rate. In any event, the opponent’s statement in respect of his superannuation disablement claim with AMP, to which I have referred in [28] above, has a notation in the opponent’s handwriting that he received workers’ compensation from 4 April 2001 to 29 September 2001.

58 The second witness was Mr Denis McIllhutton, who was one of the claimant’s two directors. He gave evidence in chief that he was aware that the opponent had injured his back when he was working at Chatswood Chase in 1996 when he was picking up some steel angles. After referring to his supervisory role on the Warrawong job and that he had been informed by the opponent whilst working on that site that he had stepped into a pothole at one time and jarred his right leg, the following exchange occurred:

“Q. Now while Mr Ramsbottom was at Warrawong did you learn from anyone else or from any other source apart from him that he’d suffered any work injury on that site apart from what you’ve told us about?

A. No.

Q. Do you recall the circumstances in which Mr Ramsbottom went off to work?

A. He said his back was playing up.

Q. Did he tell you that yourself?

A. No he came in – yeah well he did say to us, he came in and told us that, you know he was having trouble and then he went off.”

When asked whether the opponent had told him how he hurt his back, Mr McIllhutton replied that he had hurt his leg in the pothole.

59 Mr McIllhutton then gave evidence that it was Ms King’s job to fill out employee workers’ compensation claims and provide them to the company’s workers’ compensation insurers. The following further exchange then occurred:

“Q. Are you now aware that Mr Ramsbottom alleges that on 13 February 2001 he injured his back on the Warrawong site lifting a heavy piece of steel?

A. I know about it now, yeah.

Q. How long have you known about that?

A. We got – there was something that was put through to us from one of the solicitors, I think it was, because, as I said, when we look up, we couldn’t find the worker’ comp certificate.

Q. Do you remember when it was you got whatever you did or learnt whatever you did from the solicitor about this particular matter?

A. Not off hand, like I’m just trying to remember.

Q. Any idea how long ago it was?

A. Well it was coming near the end of the Domain.

Q. I’m sorry, coming?

A. Near the end of the Domain project, so we took that on in the April 2000 or 2001 – say April, May I suppose, off memory.

Q. Do you recall whether you’ve seen that letter or a copy of it before?

A. Yeah, to be honest there was a few of these letters that come through.

Q. Relating to Mr Ramsbottom?

A. Beg yours?

Q. Concerning Mr Ramsbottom?

A. Yes.”

60 The opponent’s counsel then commenced his cross-examination of Mr McIllhutton with the following exchange:

“Q. An awfully long time ago, 2001, isn’t it?

A. It is.

Q. And your recollection of conversations you had and the information you received in the early part of 2001 is pretty patchy, isn’t it?

A. Bits of it, yeah”

61 Mr McIllhutton then agreed that it was his recollection that some time towards the end of the job at Warrawong in about April 2001, he became aware of an allegation of something taking place in February 2001 resulting in the opponent getting injured. When it was suggested to him that he could not remember the full import or source of the information because of the passage of time, he replied

“No, as I said, Peter spoke to us and he said to us that he had tripped in the pothole, he jarred himself.”

62 It was then put to Mr McIllhutton that this had occurred in the first couple of weeks of the job, as he became aware that the opponent had started seeing a doctor and was soon told about the relevant circumstances. Mr McIllhutton agreed with this proposition.

63 When it was suggested that those circumstances were that the opponent had hurt his back at work and that that was what caused him to see the doctor about his back, Mr McIllhutton responded

“Yeh, he hurt his back at Chatswood Chase at numerous times, that he would go and see a doctor and he used to have to go and do rehabilitation.”

64 Mr McIllhutton then agreed with the cross-examiner that he had seen the opponent working at the Warrawong site from time to time during the earlier part of 2001 and that he did not appear to have any signs of a back problem. The following exchange then took place:

“Q. And he made no complaint to you in the early part of 2001 about having a problem with his back?

A. Mm.

Q. But he did later make a complaint to you about having hurt his back, didn’t he?

A. Yes, he did.

Q. And he told you that he went to the doctor because of having hurt his back, didn’t he?

A. Yes.

Q. And he told you that he’d hurt his back, I suggest, on 13 February 2001? He spoke to you then, but he said that’s when he hurt his back?

A. Yeah.

Q. And you received some paperwork, didn’t you, not that much longer afterwards in the form of a claim form?

A. It was a claim form like the workers Compo claim form. That, as I said, used to go through the office, so it’d come to me, I’d view it and it’d go off.” (Emphasis added.)

It is apparent from this last-mentioned exchange that the workers compensation claim form was that which was received by the claimant on 21 March 2001 and to which I have referred in [25] above.

65 As will become apparent, this last mentioned exchange was the ground upon which the primary judge based his decision that the opponent had given notice to the claimant. The only direct evidence which might be said to support his Honour’s finding was the second-last question and answer, which I have emphasised. However, the question was objectionable both because it contained three questions and because it was ambiguous. Whether or not it was open to the primary judge to rely upon it or whether it was correct for him to do so, is not a matter upon which I propose to comment. The reason for this will become apparent.

The decision of the primary judge on the preliminary issue

66 The primary judgment was delivered on 11 August 2005. The primary judge recited a great deal of the evidence to which I have referred above, both documentary and oral. It included the medical notes of Dr Bradley and the report of Dr Stenning, to which I have already referred.

67 The primary judge then noted that the opponent’s statement of claim did not sue in respect of the 1996 injury. While he observed that the particulars of negligence alleged that the claimant had allowed the opponent to be involved in heavy lifting even though it well knew that he had a prior back problem, his Honour acknowledged that the opponent

“asserts that on 13 February 2001 he suffered a broad-based bulging of the posterior annulus of the L4/5 disc with moderately severe impingement of the thoracal sac.”

This was the allegation contained in par 3 of the statement of claim.

68 His Honour then recited parts of Mr McIllhutton’s evidence including the exchange referred to in [64]. He then referred to the opponent’s claim form dated 21 March 2004 in respect of which Mr Harper had acknowledged receipt by signing the document. His Honour then observed with respect to Mr Harper, that he had not been called

“to give his version of events. It is unlikely he signed it [the claim form] without knowing more about it, particularly as the evidence reflected that this was a relatively small sized company.”

69 However, it is appropriate to observe at this point that the opponent was not also called to give evidence with respect to the issue raised by the s151C defence. To the extent to which his Honour was suggesting that the failure of the claimant to call Mr Harper gave rise to a Jones v Dunkel inference, he was clearly in error. The circumstances under which the rule in Jones v Dunkel is applicable were authoritatively summarised by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 200F–202E.

70 Relevantly, the principle may be invoked for a deficiency in the evidence of a party bearing the legal onus of proving an issue. Here, the claimant bore the legal onus of proving that the relevant notice had not been given. According to Glass JA, a consonant formulation of the principle in such circumstances would be

“that the direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve.”

71 However, as Glass JA stated at 201E, whether the principle can or should be applied depends upon satisfaction of three conditions, namely:

(a) the missing witness would be expected to be called by one party rather than the other;

(b) his evidence would elucidate a particular matter;

(c) his absence is unexplained.

72 In the present case it might be assumed that the first condition could be established although I am doubtful as to the third condition given that Mr McIllhutton’s evidence was that the claimant had ceased trading in 2004 and Mr Harper was working in a newsagency in Unanderra. More importantly, the question was whether the second condition was satisfied. As to this requirement, Glass JA remarked (at 202C–D) as follows (omitting citations):

“According to Wigmore, par. 285, the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts ... might have proved the contrary; would have a close knowledge of the facts ...; or where it appears that he had knowledge ... I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from a failure to call him.”

73 In my opinion, the foregoing observations are directly applicable to Mr Harper. There is no evidentiary basis that has been pointed to which supports the primary judge’s conclusion that it was unlikely that Mr Harper would have signed the opponent’s compensation claim form on 21 March 2001 “without knowing more about it”. This is particularly so given that it is clear from the form itself that the only purpose of the document being signed by the employer is to establish the date upon which the claim is received. I return now to the primary judge’s reasons.

74 His Honour then noted that s151C required notice of the injury to be given to the employer. He referred to that part of the definition of “injury” in s4 of the WC Act which included the aggravation, acceleration, exacerbation or deterioration of any disease. The present case, of course, did not involve a disease but was pleaded as a frank injury.

75 His Honour then observed that there was no definition of the notice to be given to the employer although he observed that in “former legislation” it included an oral communication. It would appear that his Honour was referring to s89 of the WC Act before it was repealed by the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) which relevantly was in the following terms:

(1) A notice of injury shall state:

(a) the name and address of the person injured,

(b) the cause of the injury (in ordinary language), and

(c) the date on which the injury happened.

(2) A notice of injury may be given orally or in writing.

76 The primary judge then expressed himself as follows:

“I am satisfied that the plaintiff did give notice of injury as defined in the Act which after all does include an aggravation, acceleration, exacerbation or deterioration. I am further persuaded in the light of the cross-examination that Mr McIllhutton in the early part of 2001 was aware of an injury to the plaintiff’s back.
...

Whilst no particulars as to how the injury precisely occurred, the requirement is to give notice of injury. I am not satisfied therefore, particularly having regard to the stated purpose of the legislation that the defence has been established.”

77 His Honour then noted that on 1 March the claimant had amended par 13 of its Notice of Grounds of Defence in response to which the opponent had filed a reply. The reply purported to set out a number of steps that the opponent had taken following the filing of the claimant’s original Notice of Grounds of Defence on 14 August 2002, which was prior to the amendment filed on 30 January 2004, and which added par 13 raising the s151C defence.

78 Some nine particulars were alleged which were not disputed. However, particulars (i)–(vii) occurred prior to the addition of par 13. The reply further alleged that by reason of the lateness of the addition of par 13, the opponent had suffered detriment and had changed his position. His Honour found that those allegations were unsupported by the evidence.

79 The primary judge referred to the decision of the High Court in the Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 (and accepting that the present case was not as compelling as that case), and to the decisions in the Commonwealth v Clark (1994) 2 VR 333 and Lampson (Australia) Pty Ltd v Mackay (2004) NSWCA 152. Notwithstanding that he rejected the allegation by the opponent of detriment and change of position, his Honour then concluded that he was

“satisfied further that in circumstances here the defendant should in any event be estopped from raising the defence.”

No reasons were given for this conclusion and it simply cannot be sustained.

80 Although it is possible that in an appropriate case a defendant will be taken to have waived the right to invoke s151C(1) and/or to have acted in such a way as to preclude reliance thereon through application of the principles of estoppel by representation, as Mason P, with whom Sheller and Beazley JJA agreed, observed in Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427 at 436 [51], a defendant’s

“mere failure to raise the point at the earliest opportunity will not amount to waiver or generate an estoppel.”

81 Having concluded (at 436 [49]) that s151C(1) did not erect a jurisdictional preclusion but only armed a defendant faced with contravening proceedings with power to move for summary dismissal and/or plead a defence invoking the provision (the claimant having adopted the latter approach in the present case), the President observed (at 436 [52]) that a

“defence raising non-compliance with the section should be permitted unless the facts show that it is doomed to failure because of an unarguable riposte involving waiver and/or estoppel. If the plaintiff’s position is only arguable then waiver and/or estoppel should be pleaded in reply and these and other issues should normally go to trial in the ordinary course.”

82 This is the very course that the primary judge erroneously declined to follow in the present case. In any event, the present case is distinguishable from each of the authorities upon which his Honour relied. Even upon the basis of the facts alleged in the reply which his Honour accepted, they fell well short of what would be necessary to establish a Verwayen estoppel.

83 I should add by way of completeness that when Gordon reached the High Court [2006] HCA 32; ((2006) 80 ALJR 1214), Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in a joint judgment expressed the view (at 1222 [34]–[35]) that s151C did not inevitably result in the invalidity of proceedings commenced in contravention of it in that it did not extinguish rights or create new rights but merely postponed the remedy for the common law right to initiate proceedings in a court of competent jurisdiction.

84 Their Honours then observed (at 1222 [37]) that the effect of non-compliance with s151C depended in each case upon the actions of the defendant in the context of the applicable Rules of Court which were engaged. This being so, they considered (at 1223 [39]) that concepts such as waiver and estoppel were confusing and imprecise. Accordingly,

“[t]he conduct of pending proceedings by a party is relevant upon an application by that party for the exercise in its favour of a power of the court [such as the power of summary dismissal]. The outcome of such an application depends not upon the exercise of the right of a litigant or upon its denial, but upon the exercise of a discretionary power given to the court. The decision of the court often will depend upon many different factors. An outcome favourable to one party cannot be described adequately in terms of the waiver of the legal, equitable or statutory rights of the unsuccessful party.”

85 Although it was suggested in argument that the above passage was authority for the proposition that reliance by a defendant upon a contravention of s151C could no longer be waived or the subject of an estoppel, I do not think that that is what the passage conveys. I do not detect any relevant inconsistency between that passage and the observations of Mason P in this Court to which I have referred in [80] and [81] above. In my opinion, a Verwayen type estoppel remains available in an appropriate case. However, as I have already observed, the reply as filed by the opponent in the present case does not qualify.

The submissions on the appeal and their determination

86 The claimant submitted that although the primary judge had a discretion as to whether or not he would determine the claimant’s defence based on s151C as a separate issue, his exercise of that discretion had miscarried. It was submitted that his Honour had further erred in the exercise of that discretion by failing to give any reasons for his decision to accede to the opponent’s application for a preliminary or separate hearing of the s151C defence. The basis upon which it was submitted that his Honour’s exercise of discretion miscarried was that in terms of House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, his decision was so unreasonable or plainly unjust that the court was entitled to infer that there had been a failure to properly exercise the discretion which the law reposed in the court at first instance.

87 That submission rested upon two bases. First, that there had been a failure by the opponent to comply with the relevant rules of court, with the consequence that the claimant had in effect been ambushed. Second, the effect of his Honour’s order (if such it be) that the matter proceed in the manner it did, forced the opponent into calling its evidence which, by reason of the nature of the issue, required the establishment of a negative in circumstances where the claimant was deprived of first cross-examining the opponent which it otherwise would have done if the trial had proceeded in the conventional way.

88 The opponent submitted, firstly, that it had not ambushed the claimant insofar as the application for a separate hearing of the s151C defence had been foreshadowed the previous Friday, and secondly, that as it had anticipated that the trial would commence on the following Tuesday in the normal way, it must therefore have prepared the whole of its case including the evidence necessary to establish the s151C defence. It followed that the claimant had suffered no prejudice as a consequence of his Honour’s decision to determine that defence as a preliminary issue.

89 In my opinion, the submissions of the opponent should be rejected and those of the claimant accepted.

90 It is of course true that the claimant must have been in a position on 1 March to call the evidence it did from Ms King and Mr McIllhutton. But that evidence could only be of a negative nature. The claimant must also have anticipated that the trial would proceed in the conventional way and that the plaintiff would have been the first witness to be called. That would have provided the claimant with the opportunity of cross-examining the opponent in relation to the factual issues raised by the s151C defence including cross-examining him with respect to the histories that he had provided to the various medical consultants and treating physicians.

91 The primary judge’s decision to proceed otherwise clearly deprived the claimant of that opportunity, which was evidenced by the fact that the opponent was not called to give evidence on the hearing of the preliminary issue. In my view his Honour’s decision placed the claimant in a position of serious prejudice in the conduct of its defence, which clearly resulted in a significant miscarriage of justice.

92 It may also be said that justice miscarried insofar as the defendant had intended to claim a no notice point on the basis that there was, in truth, no accident as alleged. The histories in the medical reports demonstrated that this was indeed a live issue.

93 Accordingly, the primary judge’s decision that the s151C defence had not been established must be set aside.

What should follow from the setting aside of the primary judge’s decision?

94 The claimant’s primary submission was that this Court should determine for itself whether the s151C(1) defence had been made out. Alternatively, it submitted that the matter should be remitted to the District Court to be determined in the conventional manner at the end of the trial of the opponent’s action. It would seem that the opponent was of the same view although, understandably, it submitted that his Honour’s finding that the relevant notice of the injury had been given to the claimant was correct and that this Court would come to the same finding.

95 In my opinion, it would be entirely inappropriate for this Court to determine the factual issue arising from the s151C(1) defence. To do so would be inconsistent with my conclusion that the primary judge’s exercise of his discretion miscarried when he determined that the issue raised by that defence should be the subject of a preliminary hearing. This being so, the issue must be dealt with as part of the trial of the action.

96 Furthermore, depending upon the view the Court took as to the documentary evidence on the one hand and that of Ms King and Mr McIllhutton on the other, to do otherwise would be to deprive the opponent of the opportunity to give evidence on the issue and the claimant from cross-examining him with respect to that issue. Accordingly, the issue raised by the s151C(1) defence should be remitted to the District Court for hearing as part of the trial of the opponent’s action.

The form of the notice required by s151C(1)

97 There is one further aspect of the appeal which calls for this Court’s decision. It relates to whether there are any statutory requirements with respect to the content of the notice that s151C(1) requires. The issue arises in the following way. As the WC Act was originally enacted, Pt 4 was headed “COMPENSATION – CLAIMS AND PROCEEDINGS”. Div 1 was headed “Notice of injury etc and claims for compensation”. Sections 88(1) and 89(1)–(2) are presently relevant. They were in the following terms:

88(1) Compensation may not be recovered under this Act unless notice of the injury has been given to the employer as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.

89(1) A notice of injury shall state –

(a) the name and address of the person injured;

(b) the cause of the injury (in ordinary language); and

(c) the date on which the injury happened.

(2) A notice of injury may be given orally or in writing.

There is no doubt that Pt 4 of the WC Act dealt with claims for workers compensation and not for common law damages.

98 Part 5 of the WC Act as originally enacted was headed “COMMON LAW REMEDIES”. It comprised three sections, namely ss149, 150 and 151. Relevantly, s149(1) had the effect that a worker entitled to workers compensation benefits could not recover common law damages from his or her employer. With the amendments made by the Workers Compensation (Benefits) Amendment Act 1989 (the 1989 Amendment Act), a worker’s common law rights against his or her employer were restored, but in a modified form such that he or she was entitled only to so-called modified common law damages: see Clout Industrial Pty Ltd (in liq) v Baiada Poultry Pty Ltd [2004] NSWCA 89; (2004) 61 NSWLR 111 at 128 [42] per Giles JA.

99 The 1989 Amendment Act repealed Pt 5 of the WC Act and inserted a new Pt 5. Division 2 was headed “Common law and other remedies generally”. It included s151C(1) the terms of which, for convenience, I repeat:

(1) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.

100 On 1 August 1998 the Workers Compensation Legislation Amendment Act 1998 (the 1998 Amendment Act) repealed Pt 4 of the WC Act and inserted therein a new s2A which relevantly provided, first, that the WC Act was to be construed with, and as if it formed part of, the WIM Act and, second, that in the event of an inconsistency between the WC Act and the WIM Act, the latter was to prevail to the extent of the inconsistency.

101 Part 4 of the WC Act, which had been repealed by the 1998 Amendment Act, was re-enacted with amendments in Chapter 4 of the WIM Act. Part 1 of Chapter 4 contained s60 which provides as follows:

(1) Provisions relating to a worker’s entitlement to compensation, the benefits payable, common law remedies and other matters are contained in the 1987 Act.

(2) The 1987 Act is, by the operation of s2A of that Act, to be construed as if it formed part of this Act.

which when taken together with s2A of the WC Act, s60 suggests that the two Acts are to be read and construed together.

102 Part 2 of Chapter 4 of the WIM Act is headed “Compensation – claims and proceedings”. Division 1, like Div 1 of the WC Act prior to the repeal of Pt 4, was headed in identical terms “Notice of injury etc and claims for compensation”. Sections 61(1) and 62(1) and (2) are a re-enactment of ss88(1) and 89(1) and (2) of the repealed Pt 4 of the WC Act. Accordingly, whereas prior to the 1998 Amendment Act and the WIM Act, the WC Act contained ss88, 89 and 151C, after 1 August 1998 and by operation of s2A of the WC Act and s60(2) of the WIM Act, s151C was to be construed as if it formed part of the WIM Act so that ss88, 89 and 151C were relevantly contained in the WIM Act, the only difference being that ss88 and 89 had become ss61 and 62. It is notable that these sections prescribe a regime for notice applicable to compensation as distinct from damages.

103 In these circumstances, the question that arises is whether the reference in s151C(1) to the “notice of the injury” and which expression is also used in s61(1), with the consequence that the notice to which s151C(1) refers must, like the notice referred to in s61(1), comply with the requirements of s62(1) and, in particular, of subparagraph (b) which requires the notice to state the cause of the injury.

104 Section 151C(1) commences with the words “A person to whom compensation is payable under this Act”. That expression is defined in s149(2) as including a reference to compensation that would be payable under the WC Act if a claim for that compensation were duly made. I note that for the purpose of this section, damages are defined by s149 to exclude compensation, and that the payment of damages is provided for under a separate scheme. Section 65 of the WIM Act (formerly s92 of the WC Act) provides for the making of a claim for compensation.

105 The opponent made such a claim on 18 November 1996 and 21 March 2001. However, notwithstanding the making of any such claim, the effect of s61(1) of the WIM Act (formerly s88(1) of the WC Act) is that compensation may not be recovered under the WIM Act unless “notice of the injury has been given to the employer”. Only then may the worker recover compensation under “this Act” from the employer who is liable to pay that compensation pursuant to s9(1) of the WC Act.

106 It accordingly follows that if the opponent received “an injury” on 13 February 2001, he was entitled pursuant to s9(1) to receive compensation from the claimant “in accordance with this Act”.

107 As the WC Act is to be construed as if it formed part of the WIM Act, it follows, so that argument runs, that the opponent could not recover compensation under that Act unless “notice of the injury” had been given by him to the claimant. That notice had to comply with s62(1) of the WIM Act as it had previously been required to comply with s89(1) of the WC Act. Once that notice had been given, the opponent was entitled to claim compensation by the making an application pursuant to s65 of the WIM Act (formerly s92 of the WC Act).

108 If, therefore, a worker has given a notice to his or her employer pursuant to s61(1) of the WIM Act which complies with the requirements of s62(1), then he or she should not be required to give a further notice for the purpose of s151C(1). The notice given pursuant to s61(1) of the WIM Act would then qualify as a notice for the purposes of s151C(1) of the WC Act.

109 It was thus submitted by the claimant that the “notice of the injury” referred to in s151C(1) of the WC Act must be the same notice as that given by the injured worker pursuant to s61(1) and which is required to comply with s62(1) of the WIM Act for the purpose of recovering compensation under the WC Act incorporated as part of the WIM Act.

110 Although at first sight this argument seems to have merit upon the basis that in the same Act the same construction should be given to identical expressions, I have ultimately come to the view that that is not so in the present case. As the opponent submitted, there is no relevant definition of the expression “notice of the injury”. On the contrary, s62(1) of the WIM Act merely determines what such a notice must state. More significantly, s61(1) refers to the giving of a notice of the injury before compensation may be “recovered under this Act”. In other words Div 1 of Pt 2 of the WIM Act which contains ss61, 62 and 65 (and which provide for the making of a claim for compensation) all proceed upon the assumption that the injured worker will then actually recover or receive compensation from the worker’s employer pursuant to s9(1) of the WC Act.

111 On the other hand, s151C(1) refers to a person “to whom compensation is payable under this Act” an expression defined to include a reference to compensation that would be payable under “this Act” if a claim for that compensation were duly made. In other words, s151C(1) is not predicated upon a worker actually recovering or receiving compensation but only being a person to whom such compensation is payable. There is nothing in s151C(1) that requires a worker to first recover compensation from his or her employer before commencing court proceedings for damages against that employer in respect of the relevant injury. Such a construction is consistent with the provisions of s151Z(1)(c) of the WC Act which disentitles a worker who has recovered damages from a person other than his or her employer from thereafter recovering compensation from that employer under that Act.

112 Therefore, there is nothing in the legislation that would prevent a worker to whom compensation is payable under the WIM Act from desisting from making a claim for such compensation but instead, commencing court proceedings for damages in respect of the same injury. However, he or she is not entitled to commence such proceedings until six months have elapsed from the time notice of the injury is given to the employer.

113 In the foregoing circumstances, in my opinion, it is not possible to construe the expression “notice of the injury” in s151C(1) as meaning a notice that meets the requirements of s62(1) merely because s61(1) uses the expression “notice of the injury” and s62(1) provides for what that notice must state. Furthermore, given that s151C provides a regime referable to damages while ss61–62 relate to compensation, there is some difficulty in concluding that the provision for the giving of notice of the injury in one is directly comparable to the giving of such a notice in the other.

114 Nevertheless, the notice must be in respect of “the injury concerned”, which, in the context of the present case, refers to the frank injury alleged in par 3 of the opponent’s statement of claim. Although the claimant accepted that the High Court had determined in Berowra Holdings Pty Ltd v Gordon at 1220–1 [24] that the primary objective of s151C was to encourage an injured worker to attempt in the first instance to satisfy his or her claim for damages by negotiation with the employer rather than by immediate recourse to litigation, as was pointed out in that case, the statute does not in terms oblige the worker to engage in any form of negotiation or settlement procedure during the six month period which s151C(1) envisages. Nevertheless, the claimant submitted that this purpose could only be implemented if the notice that the section requires contained details as to when, where and how the injury was sustained.

115 Accordingly, the claimant submitted that the primary judge erred when he found that

“[w]hilst no particulars as to how the injury precisely occurred [sic were given?], the requirement is to give notice of injury.”

116 Although s151C(1) does not expressly refer to s62(1), it was submitted by the claimant that that provision should be regarded as setting or providing guidance as to the minimum requirements of the notice of the injury required under s151C(1). It was submitted that this was so because the particulars of the injury required by s151C(1) should be more or at least no less comprehensive than those required in respect of a claim for compensation as a claim for damages involves issues of alleged culpability of the employer (by way of negligence or breach of statutory duty) whereas a claim for compensation does not.

117 On the other hand, the opponent submitted that all that was required to satisfy s151C(1) was that written or oral notice be given to the employer that the worker had sustained an injury arising out of his or her employment. There was no requirement, so it was submitted, to provide particulars of the manner in which the injury was sustained although the opponent was prepared to accept that the notice should at least state the date of the injury. That would be sufficient to enable the employer to investigate the circumstances under which the worker was allegedly injured.

118 Accordingly, there is no requirement, as there is under s62(1) of the WIM Act, to state the cause of the injury. Had that been a requirement of s151C(1) then the legislature would have so provided by requiring the relevant notice to comply with the provisions of s62(1) or the former s89(1).

119 There can be little doubt that the notice required by s151C(1) must at least be sufficient to put the employer on notice that the worker has sustained an injury in respect of which compensation would be payable under the Act. However, as at February 2001, compensation was not payable in respect of an injury unless the worker’s employment was a substantial contributing factor to the injury: see s9A(1) of the WC Act. Section 9A(2) sets out examples of matters to be taken into account for the purpose of determining that question and include not only the time and place of the injury but also the nature of the work performed and the particular tasks involved.

120 It is no doubt because of the provisions of s9A that a claim for compensation is required to contain such information as may be prescribed by the regulations or approved by the Authority (see s65(1)(b)). No doubt, the compensation claim forms of MMI which the opponent completed, complied with those requirements. That form included the provision of information as to how the accident occurred as well as details of the date, time and nature of the injury.

121 Notwithstanding the claimant’s submissions, I accept those of the opponent which contended that there were differences between the statutory requirements for giving a notice under s61 as the precursor to the making of a claim for compensation pursuant to s65 and the giving of notice under s151C(1) as the precursor to the commencement of court proceedings to recover damages.

122 It is to be noted that s65(7) provides that compensation may not be recovered under the WIM Act unless a claim for compensation has been made within six months after the injury or accident. It is also to be noted that s65(12) provides that a failure to make a claim in accordance with subsection (1) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause. Other exceptions are contained in other subsections.

123 In my opinion the structure of the legislation is such that the statutory requirements with respect to the recovery of compensation by an injured worker are required to be more formal and detailed than in the case of a claim for modified common law damages. Details of any such claim would normally be found in the initiating process including the particulars which under the relevant rules of court are required to be given. Section 151C(1) merely provides a breathing space of six months for the parties, if they wish, to negotiate an out of court settlement or otherwise to provide the employer with the opportunity of further investigating the matter including the extent, if any, of its common law liability in respect of the injury concerned.

124 It follows, in my view, that the notice of injury required to be given pursuant to s151C(1) is not required to provide information as to the cause of the injury or of the accident out of which the injury arose provided that sufficient information is given to enable the employer to appreciate that the worker has sustained an injury at a particular time, date and place which was work related. As such, the information must be sufficient to put the employer on sufficient notice to enable it to investigate the circumstances under which the injury arose. That does not mandate the notice to state the cause of the injury or details of the work being performed when the injury was sustained.

125 As far as the facts of the present case are concerned, I would do no more than express the view that to simply give notice of the recurrence of a pre-existing back injury would of itself be insufficient notice for the purpose of s151C(1) as regards a claim of frank injury such as propounded in the statement of claim. In other words, if the extent of the notice given in the present case was no more than what was contained in the compensation claim form provided to the claimant on 21 March 2001, of itself it would not satisfy the requirements of s151C(1). As the matter is to be remitted to enable the trial to proceed on all issues with the opponent as the moving party, it would be inappropriate to say more as, no doubt, the evidence which will ultimately be elicited may well be different from that which was before the primary judge on this issue.

Conclusion

126 For the foregoing reasons, the claimant has succeeded in establishing demonstrable error on the part of the primary judge in determining the s151C(1) defence as a preliminary matter with the result that his decision to reject that defence must be set aside and the matter remitted to the District Court for a full trial of the opponent’s action.

127 I would therefore propose the following orders:

(a) Leave to appeal granted upon condition that the claimant file its Notice of Grounds of Appeal within seven days of the date of these orders;

(b) Appeal allowed;

(c) Set aside the orders made by his Honour Judge Phelan on 11 August 2005;

(d) Remit the proceedings to the District Court for the hearing of the whole of the opponent’s action;

(e) The opponent to pay the claimant’s costs of the proceedings before Judge Phelan on 1 March 2005, 2 March 2005 and 9 June 2005;

(f) The opponent to pay the claimant’s costs of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified.

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LAST UPDATED: 12/10/2006