Barry.Nilsson. Associate Hannah Hughes and Lawyer Demi Peters discuss the recent Supreme Court decision in State of Tasmania v Herlihy which concerned the validity of service of a notice via email. The case was an appeal from a determination of the Workers Rehabilitation and Compensation Tribunal. The appeal decision confirmed that the procedural requirements under the law are not flexible, even with today’s changing technology, they write. 
In Issue
- Whether it was reasonable for the employer to expect that an email notice sent to the worker was readily accessible to her; and
- Whether the worker consented to receiving information about her claim via email, because she included her email address on the compensation claim form.
The background
Elaine Herlihy, a nurse employed by the State of Tasmania, made a workers’ compensation claim which was disputed under s81A of the Workers Rehabilitation and Compensation Act 1988 (the Act). The State was required to give notice to Ms Herlihy within 84 days that it disputed liability. This period of time expired on 10 October 2017.
On 10 October 2017 the State hired a licensed agent to serve the notice. Because no one was home at the time, the agent left the document on the door step. This was not valid service under s59(1)(a) of the Act. However, on 6 October 2017, an agent of the State also sent the notice to Ms Herlihy’s email address (‘the critical email’).
Relying on s6(1) of the Electronic Transactions Act 2000 (ET Act), the State argued that the sending of the notice to Ms Herlihy by email amounted to sufficient service for the purpose of s81A.
Section 6(1) of the ET Act provides that where a person is required to give information in writing, that requirement is met if the person gives the information by email provided that at the time the information was sent, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference, and the person consented to receiving the information by email. Consent under the ET Act can be reasonably inferred from the conduct of the person concerned.
The decision of the Tribunal
The Tribunal found that the State had not met the requirements of s6(1) of the ET Act.
The State tried to rely on evidence showing that Ms Herlihy was sent emails from the rehabilitation provider appointed under her worker’s compensation claim prior to the critical email being sent and evidence showing that she accessed her emails after the critical email was sent.
The Chief Commissioner however, was of the opinion that there was no evidence to indicate that either the State or its agent were aware that Ms Herlihy had, prior to 6 October 2017, ‘been able to access her emails, had actually accessed her emails or had communicated with anyone via that email address’. Therefore, there was no basis for there to be a reasonable expectation that at the time the email was sent, it would have been be readily accessible.
The Chief Commissioner also rejected the argument that it could be inferred from the fact that Ms Herlihy provided her email address on the compensation claim form and the fact that she emailed her rehabilitation provider the critical email was sent, that she consented to receiving information about her claim by email.
The issues on appeal
On appeal the following issues were raised for determination:
- Whether the Chief Commissioner erred in concluding that Ms Herlihy had not consented to receiving information about her claim by email.
- Whether the Chief Commissioner erred by failing to take into account evidence that was unknown to the agent of The State at the time he sent the notice via email.
The Decision on appeal
The appeal was dismissed. The Judge concluded that the assertion by the State that by providing her email address on the claim form Ms Herlihly consented to receiving information as anticipated by the ET Act, was ‘preposterous in the extreme’.
The Judge referred to s34(1)(a) of the Act which requires that a claim for compensation must be in the form approved by the Board and highlighted the fact that there is nothing on the form or in that section that gives a worker the option of not providing an email address.
The Judge noted that whilst s6(1) of the ET Act was silent as to whose expectations are required when it refers to it being ‘reasonable to expect that the information would be readily accessible…’, he held the expectation is that of the person required to give the information in writing, in this case the State. He noted that the section is not concerned with what is reasonable to expect with the benefit of hindsight, and therefore, information not available to the State, its employees or agents at the time the email was sent is irrelevant.
Implications
Whilst the law is slowly adapting to the technological advances the modern world brings, there are some aspects of the law that are not so readily changed. The current compensation claim form and the way notice is served in workers’ compensation claims is an example of this. Given the Tribunal has a strong emphasis on making the claim process worker friendly and conducted with as little formality as possible, this case may be an opportunity for the Board to review the current compensation claim form to include an option for workers to receive information about their claim via email.
Nevertheless, this case serves as a timely reminder to ensure that notice must be served in accordance with s56 of the Act or with sufficient information to satisfy s6(1) of the ET Act. A quick and easy way to address this may arguably be a telephone call to the worker to obtain their consent to serving a notice via email.
Read the case here.
Hannah Hughes is an Associate in the Barry.Nilsson. Insurance & Health team, having joined the Hobart office in 2016. Hannah acts for a mix of insurer and insured clients. Her core area of expertise is personal injury law, including: Workers’ compensation, Workplace prosecutions, General personal injury matters, Fatal accidents, CTP, Property damage and D&O. Hannah also assists, in an agency role, in debt recovery matters. Hannah has a Bachelor of Laws and Bachelor of Arts, as well as a Graduate Diploma in Legal Practice. She is a committee member of the Australian Insurance Law Association (AILA), and a member of Tasmanian Women Lawyers. Contact Hannah at hannah.hughes@bnlaw.com.au or connect via LinkedIn.
Demi Peters is a solicitor in the Insurance & Health team and is based in the Hobart office. Demi joined Barry.Nilsson. as a law clerk in 2016 and following her admission in 2018, joined the team as a solicitor. Demi advises a range of clients including insurers, insureds, underwriters and brokers in the areas of: Personal injury, Public and product liability, and Professional indemnity. She has a particular interest in personal injury matters involving motor vehicle accidents and catastrophic injuries. Demi holds a Bachelor of Laws (Honours) and a Graduate Diploma of Legal Practice. She is the secretary of the Tasmanian Women Lawyers committee and is a member of the Southern Young Lawyers committee. Contact Demi at demi.peters@bnlaw.com.au or connect via LinkedIn.
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