Ignorance Isn’t Always Bliss – the application of Section 261 of the 1998 Act.

Hou v Zhen Qi Hou Pty Ltd [2022] NSWPICPD 6

The Appellant was a working Director of his Company who suffered a fracture to his right ankle on 15 April 2014 when he fell through a void in a stairwell on a construction site.

The Appellant sought legal advice from his then solicitors in December 2014 and was apparently advised to pursue a Public liability claim instead of a workers compensation claim.

In mid-2015 the Appellant was advised by his solicitors that the public liability claim had a minimal chance of success and advised him to lodge a workers compensation claim. A claim was lodged with the insurer on 20 June 2015. As this was beyond the six-month time period under section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the claim was declined by the insurer.

On 7 July 2020 the Appellant lodged a claim for proposed right ankle fusion surgery, which was disputed by the insurer on 27 July 2020. Following this, the Appellant filed proceedings in the Personal Injury Commission seeking the cost of the surgery and related expenses.

Personal Injury Commission Proceedings

The matter was heard before Member Deborah Moore, who provided a Certificate of Determination dated 28 May 2021. The Appellant submitted that the failure to lodge a claim within 6 months was occasioned by ignorance and/or other reasonable cause.

Ultimately, the Member was not persuaded that the worker’s English skills were as inadequate as he claimed in order to be occasioned by ignorance. The Member observed that the worker obtained a Diploma in Business Management from an Australian TAFE and ran his own Company for a number of years. Member Moore referenced several other documents that raised serious doubts regarding the Appellant’s claimed lack of English language skills.

In regard to the Appellant’s dealings with his former solicitors, the Member observed that the advice given was to pursue a public liability claim instead of a workers compensation claim. This indicated to the Member that the Appellant understood the nature of a workers compensation claim as opposed to a public liability claim. Member Moore found it hard to believe that an experienced firm would make no mention of the deadline for making such a claim. Member Moore accepted that the worker may not have turned his mind to workers compensation when he decided to pursue public liability, however, this is different to being ignorant of those rights.

In conclusion, Member Moore found that the Appellant was educated, ran his own Company, had a reasonable command of English, sought advice from a Mandarin speaking accountant regarding a workers compensation policy and discussed pursing a claim with his Doctors. Member Moore was not satisfied that the Appellant’s evidence had discharged the burden of proof and made an Award for the Respondent.

Grounds of Appeal

The Appellant lodged an Appeal against the decision of the Member on the following grounds:

1. The Member erred in law when she failed to correctly pose the statutory question she needed to answer in Section 261.
2. The Member erred in law when she failed to consider the alternative question of whether the failure to make a claim within the six-month period was occasioned by other reasonable cause.
3. The Member erred in law when she failed to give any reasons as to why there was no other reasonable cause that occasioned the failure.
4. The Member made an error of fact finding when she concluded that the letter from Slater & Gordon dated 21 July 2015 did not make a reference to pursing a workers compensation claim.
5. The Member erred in the exercise of her discretion by taking into account irrelevant matters including:

(a) Either the three-year limitation period for a public liability claim or three-year period in s261(4) of the 1998 Act.
(b) The GP’s note dated 11 September 2015
(c) The motivation to claim weekly benefits caused by financial hardship
(d) The reference to a tribunal hearing

Presidential Decision

President Judge Phillips dismissed all the above grounds of Appeal, finding that the Member had made no error of fact or law. His Honour states that many of the grounds of Appeal were precise, narrow errors. Judge Phillips was of the view that the alleged errors were not a fair reading of the Member’s decision or had simply not occurred, when reading the decision as a whole.

Judge Phillips was satisfied that the Member had considered the evidence at length, particularly the Appellant’s statement, and provided adequate reasons for her decision. Judge Phillips concluded by stating that the appellant bore the burden of proof under section 261 of the 1998 Act and had failed to discharge his onus.

Implications

This case highlights what is required to establish “ignorance, mistake or other reasonable cause” for the delay in making a claim for workers compensation. This is particularly important when, as was the case in this matter, there is evidence to suggest the worker had prior knowledge of the workers compensation process.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.