Maddalozzo and ORS v Maddick [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 16 July 1992
• Date: 16 July 1992
• Docket Number: No. SCC 301 of 1991

(1992) 84 NTR 27

(1992) 108 FLR 159

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Mildren J

No. SCC 301 of 1991

Maddalozzo and ORS

and

Maddick

Counsel for appellant: S Southwood

Counsel for respondent: J Waters

Australian Iron and Steel Ltd v Hoogland (1961–62) 108 CLR 471, applied. Western Pastoral Company v Eyeington (1971) 125 CLR 342, applied. Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13, referred to.

Australian Iron and Steel Ltd v Hoogland (1961–62) 108 CLR 471, applied. Western Pastoral Company v Eyeington (1971) 125 CLR 342, applied. Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13, referred to.

Billabong Management Pty Ltd v Tumminello Holdings Pty Ltd (unreported, Court of Appeal, 11/6/92), referred to.

Albion v Newroyd Mill Ltd (1925) 134 LT 171, applied. Egerton v Moore (1912) 2 KB 308, applied. Farmer v Cotton Trustee (1915) AC 922, applied. John Holland Constructions P/L v Hall (1987) 45 NTR 11, applied. Jordan v Metropolitan Water, Sewerage and Drainage Board (1943) WCR 80, applied. Nader Jones v ANZ Executors and Trustees P/L (unreported, Asche CJ, 12/8/86), applied. McMillan v TIO (1988) 57 NTR 24, distinguished.

Billabong Management Pty Ltd v Tumminello Holdings Pty Ltd (unreported, Court of Appeal, 11/6/92), referred to. Albion v Newroyd Mill Ltd (1925) 134 LT 171, applied. Egerton v Moore (1912) 2 KB 308, applied. Farmer v Cotton Trustee (1915) AC 922, applied. John Holland Constructions P/L v Hall (1987) 45 NTR 11, applied. Jordan v Metropolitan Water, Sewerage and Drainage Board (1943) WCR 80, applied. Nader Jones v ANZ Executors and Trustees P/L (unreported, Asche CJ, 12/8/86), applied. McMillan v TIO (1988) 57 NTR 24, distinguished.

Australian Iron and Steel Ltd v Hoogland (1961–62) 108 CLR 471, applied. Western Pastoral Company v Eyeington (1971) 125 CLR 342, applied.

Work Health Act 1986 (NT), s116.

Work Health Act 1986 (NT),ss80(1),182.

Work Health Act 1986 (NT),ss80(1),182,189.

Work Health Act 1986 (NT),ss3, 80, 81, 82, 84(3), 85(1)(d), 85(9), 85(10), 104, 116(1), 182 and 189.

Work Health Act 1986 (NT),ss80(1),182(1) and 182(2).

Work Health Act 1986 (NT),ss80,182 and 189.

Work Health Act 1986 (NT),ss80, 182.

Appeal and new trial — New Trial — In general and particular grounds — Appeal against decision of the Work Health Court — Appeal against granting of application for extension of time to commence proceedings.

Limitation of actions — Procedure, pleading and evidence — Distinction between procedural limitation provisions and those imposing a condition — Section 80(1) is a condition upon the right to compensation — Section 182 is a procedural provision, and not a further condition of entitlement.

Statutes — Operation and effect of statutes — Work Health Act — Sections 80(1) and 182 — Compliance with s80(1) condition precedent to compensation — Section 182 is procedural — Section 80(1) is not subject to s182 — Section 189 discussed — Section 182 not a further condition of entitlement — Court should attempt to give effect to every word of a statute.

Statutes — Operation and effect of statutes — Work Health Act — Scheme of Act discussed — Necessity for prompt notice of injury — Section 182(2) stands alone and runs contrary to the meaning and intent of s80(1) and 182(1) and the Act generally.

Statutes — Interpretation — Work Health Act — Meaning of giving notice ‘as soon as practicable’ — Relevant reference may be date of financial loss — Meaning is a question of law.

Workers compensation — Proceedings to obtain compensation — Preliminary requirements — Work Health Act — The giving of proper notice is not procedural but a condition precedent and the essence of the right to compensation — Entitlement under s53 is subject to limitation of s80(1) — Section 182 relates to the maintenance of proceedings not entitlement and is procedural — S80(1) is not subject to s182 — Distinction between procedural limitation provisions and those imposing a condition.

Workers compensation — Proceedings to obtain compensation — Preliminary requirements — Work Health Act — Necessity for prompt notice of injury — Meaning or giving of notiece of injury or claim as soon as practicable — Whether failure to give notice is question of law — Reference point may be date of financial loss — Section 182(2) stands alone and is contrary to s80(1) and s182(1) and the general intent of the Act.

ORDER

Appeal allowed.

JUDGE1

1 Mildren J This is an appeal pursuant to s116 of the Work Health Act from a decision of the Work Health Court which granted the respondent's application for an extension of time to commence proceedings claiming compensation under the Act against the appellants, his employers. The grounds of the appellant's appeal may be distilled into the following:

1. The Court was wrong in law in finding that the respondent gave notice of his injury to the appellant as soon as practicable thereafter as required by s80 of the Act.

2. The Court should have found that as a consequence of the respondent's non-compliance with s80, the respondent was precluded from obtaining any compensation.

3. The Court was wrong in concluding that s182 of the Act empowered the Court to extend time to commence proceedings notwithstanding a failure to comply with s80 of the Act.

4. The Court was wrong in law in finding that the failure of the respondent to make a claim for compensation within six months of the injury was occassioned by a reasonable cause.

2 The respondent claimed to have suffered an injury to his back on about 25 July 1988 whilst in the employ of a previous employer. In mid 1989, he was certified fit for light work. On 1 July 1989 he commenced his employment with the appellants as a truck driver. During this employment, the respondent claims to have suffered a recurrence of his previous injury which arose out of or in the course of his employment with the appellants. This brought on severe back pain which he alleges led to his resigning his employment on 8 December 1989. There is no evidence that the respondent informed his employers that his reason for leaving the employment was due to his back pain. There is evidence that in about August 1989 the respondent was involved in an accident at work when he was operating a tipper truck. The shaft lifting the tray of the tipper slipped from its mountings causing the tray to fall. As there was twenty tonnes of rock in the tray, this caused a considerable jolt, and there is evidence that the jolt exacerbated the respondent's back for several days before his back returned to its previous condition. The respondent did inform Mr Stevens, one of the appellants, of this incident, and that his back was sore, but it seems that he took no time off work and the only treatment he received was to take painkillers.

3 No further communication was made to the appellants by the respondent. On 18 January 1991 the respondent's solicitors telephoned the appellant's insurers, following which, a claim form in accordance with Form 3 under the Work Health Regulations was received by post on 4 February 1991 by the employer's insurers. There is no evidence that the claim form was ever served on the appellant. No point was taken that service of the claim form was not made on the employer personally, presumably because s84(3) of the Act permits a claim form to be served on the employer's insurer in certain circumstances. On 4 February 1991, the appellant's insurers sent a letter to the respondent's solicitors disputing liability for the claim pursuant to s85(1)(d) of the Act. There is no evidence as to when that notice was received, but nothing turns on this. On 25 February 1991 the respondent lodged an application for compensation in the Work Health Court pursuant to s104 of the Act. There is no doubt that the proceedings were lodged within the time limited by s104 of the Act.

4 No submissions was made by Mr Waters, counsel for the respondent, that the conversation the respondent had with Mr Stevens amounted to notice of the injury within the meaning of s80(1) of the Act. It was common ground that the only notice relied upon was the service of the claim form on 4 February 1991.

The Statutory Scheme

5 The Act contains a number of provisions which set out time limits which affect a worker's right to compensation or right to claim compensation. These provisions are scattered in various parts of the Act, and are not as simply drafted as they might have been.

6 The first of these provisions is s80 which provides:

‘80. NOTICE OF INJURY AND CLAIM FOR COMPENSATION

(1)Subject to this Act, a person shall not be entitled to compensation unless notice of the relevant injury has, as soon as practicable, been given to or served on the worker's employer.

(2)An employer who receives a claim for compensation shall be deemed to have been given notice of the injury to which it relates.’

7 Section 81 of the Act provides that notice of the injury may be given orally or in writing, shall include the name and address of the person injured, the date on which the injury occurred and the cause of the injury. Section 81(2) requires an employer to record the fact that notice of an injury has been given in records kept for that purpose. Apart from these matters, the notice requires no other formalities, and because it may be given orally, there is no prescribed form of notice. Clearly the Act contemplates that a worker may suffer an injury in circumstances where there is no immediate right to claim compensation: for instance, the injury may not immediately prevent the worker from being able to work.

8 Section 182(1) also provides that proceedings for the recovery of compensation are not maintainable unless notice of the injury is given before the worker has voluntarily left the employment in which he was injured. A worker who leaves his employment because his injury...