Gallagher and Department of Defence [1999] AATA 269 (27 April 1999)

Last Updated: 7 May 1999

DECISION AND REASONS FOR DECISION [1999] AATA 269

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/280

GENERAL ADMINISTRATIVE DIVISION )

Re BRIAN FARLEY GALLAGHER

Applicant

And DEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal Mr BJ McMahon (Deputy President)

Date 27 April 1999

Place Sydney

Decision The decision under review is affirmed.

(Sgd) BJ McMahon

.............................................

Deputy President

CATCHWORDS

COMPENSATION - disease - want of notice - whether other reasonable cause

JURISDICTION - out of time - whether Tribunal empowered to entertain claim

Safety, Rehabilitation and Compensation Act 1988 s 124

Commonwealth Employees' Compensation Act 1930 s 16

Commonwealth of Australia v Connors (1989) 86 ALR 247

Re Willis and Australian Telecommunications Commission and Anor (1989) 19 ALD 665

Black v City of South Melbourne (1963) VR 34

Scott-Holland v Commonwealth of Australia (1983) 69 FLR 139

REASONS FOR DECISION

27 April 1999 Deputy President BJ McMahon

1. In November 1957 the applicant was an able seaman serving on board H.M.A.S. Kookaburra. This was a small vessel carrying a complement of two officers and ten sailors. There was no doctor on board.

2. When the vessel was some four or five days from the nearest port, Mr Gallagher, an armourer, had occasion to go to an ammunition box intending to obtain detonators for hand grenades. The box was a heavy steel locker located on an open deck. Because it contained ammunition, it was made of armour plated steel. The lid was opened and kept in place by a device which, as it transpired, was not particularly stable. During heavy seas, the applicant put his head inside the locker to look for detonators. The mechanism holding the lid gave way and the applicant was struck by the lid on the back of his head and on his neck.

3. He gave evidence that he collapsed on deck while semi-conscious. He could not remember who had released him from the locker. Other ratings took him below to a mess because he was unable to walk. The Captain of the vessel decided that, although Mr Gallagher normally slept in a hammock he should be placed in an officer's bunk until he recovered. He was to remain there for some five days until the ship reached port.

4. During that time, the Captain, of course, was aware of his injury. According to Mr Gallagher, he checked as to his welfare every day and sometimes called on Mr Gallagher twice in the one day. On a number of occasions he asked the applicant whether he was well enough to continue or whether the ship should head immediately for port. Mr Gallagher said that he was able to continue.

5. When the ship reached port, his commanding officer directed him to go aboard H.M.A.S. Sydney, where a medical officer would examine him. According to Mr Gallagher, a quick examination was carried out. The examining doctor did not appear to be greatly concerned as Mr Gallagher was not a member of his company. Records made by the examining doctor on 21 November 1957 noted that:

"Locked lid hit him on back of head. Laceration on 18 x 1.51. Laceration 1" long on R side, R Side w/ . . . life w/ . . . Lump and abrasion l. R cheek abrasion R. Inside w/ . . . large laceration cheek . . . 1 small puncture wound . . . Laceration and abrasion healed well. Still extensive . . . small wound inside . . . healed. [partially illegible]"

6. This medical report makes reference to nothing more serious than abrasions and a small puncture wound.

7. The applicant was to allege, in these proceedings, that as a result of this accident, he developed cervical spondylosis. Although he now says in retrospect that he did not worry about the accident at the time, even though he had a feeling it would "come up against me", the fact was that he did not experience any incapacitating symptoms of spondylosis until 1978.

8. At the time of the accident on H.M.A.S. Kookaburra and at the time of his medical examination on H.M.A.S. Sydney, he was not given any information or advice as to his right to claim compensation. In 1958, his contracted period expired and he was due for discharge. At his pre-discharge medical examination, he again gave details to the examining doctor of a "hurt certificate" in relation to an injury sustained in November 1957 on H.M.A.S. Kookaburra. Nothing medically relevant to this injury is noted in the report of the examination dated 10 February 1958, apart from this indication from the applicant.

9. After he left the Navy, he was employed as a bus driver for fifteen years. In about 1973, he again took up employment with the Commonwealth as a driver. During the whole of his time as a bus driver, he did not have any time off for symptoms related to his neck injury. He retired from full-time employment as a Commonwealth driver in November 1990, having accepted a redundancy package. He continued on in part-time work as a driving instructor for the Commonwealth, retiring completely in 1992 because of illness of his wife.

10. In 1978, he had a number of medical problems. At the time, he was suffering from "bad nerves and depression" while he was still employed as a Commonwealth driver. His then general practitioner, Dr Anderson, arranged for his admission to the Prince of Wales Hospital. There, he was to be treated for investigation of liver disease and for psychiatric surveillance. Prior to his admission, and as part of his general care of his patient, Dr Anderson also arranged for Mr Gallagher to be admitted to Bankstown Hospital for x-ray of his neck. At the time of his x-ray, disc defects were demonstrated for the first time. Mr Gallagher recalled that he was asked by the radiologist or by the doctor whether he had had an accident. It was only then that Mr Gallagher connected the ammunition box accident with the condition of his cervical spine. Even after 1978, however, he did not take any time off work because of neck problems. He remained ignorant of his right to claim compensation. By 1997, the neck pains were more insistent. He had experienced them between 1978 and 1997 to a minor degree and did not bother seeking further treatment because of their transience. Otherwise he said in evidence that he was reasonably healthy. He did not have any family doctor who treated him regularly.

11. As the neck pains became more insistent he went to his wife's doctor, who told him not to worry, he merely had a throat infection. Mr Gallagher was not satisfied with this diagnosis and, therefore, decided to go to a medical centre. There he came under the care of Dr Goh, who arranged for further x-rays. It was Dr Goh who suggested that he make a claim for compensation. Thinking that this referred to a claim under the Veterans' Entitlements Act 1986, Mr Gallagher made a pension claim which was refused by the Repatriation Commission and on appeal by the Veterans' Review Board. It was only when he read the decision of the Veterans' Review Board that he became aware that he might have had rights to claim compensation as a former employee from the Commonwealth.

12. The condition of his neck has deteriorated. In 1997 Dr Blum carried out decompression and fusion surgery. The opinion of this specialist is that Mr Gallagher's injury "could well have been the trigger for the development of his cervical spondylosis". He goes on to say "This is supported by the fact that his other cervical discs are normal, making it unlikely that this is a pure degenerative situation".

13. The present claim was made on 17 June 1997, and was refused on several grounds. An application was made to this Tribunal to review that decision. These reasons arise from a hearing called to consider a threshold point. Through the operation of the transitional provisions in section 124 of the Safety, Rehabilitation and Compensation Act 1988, Mr Gallagher's claim falls for determination under the terms of the Commonwealth Employees' Compensation Act 1930. The threshold point to be determined is whether there has been a compliance with section 16 of that Act and, therefore, whether this Tribunal is entitled to consider his claim.

14. Section 16 of that Act is in the following terms:

"16. - (1) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made -

(a) within six months from the occurrence of the accident; or

(b) in the case of death - within six months after advice of the death has been received by the claimant:

Provided always that -

(i) the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and

(ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.

(2.) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.

(3.) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.

(4.) In the application of this section, in accordance with section ten, and sub-section (2.) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease -

(a) notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1.) of this section if notice of the contracting of the disease was served on the Commissioner -

(i) in the case of a claim arising out of death of the employee caused by the disease - as soon as practicable after his death; or

(ii) in any other case - as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, as soon as practicable after his death;

(b) a claim for compensation shall be deemed to have been made within the period required by sub-section (1.) of this section if the claim was made -

(i) in the case of a claim arising out of the death of the employee caused by the disease - within six months after advice of the death was received by the claimant; or

(ii) in any other case - within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death;

(c) a notice shall, for the purposes of sub-section (2.) of this section, be deemed to contain the date at which the accident happened if it specified the date at which, or period during which, the employee contracted the disease; and

(d) a notice shall be deemed to have been duly served in accordance with the last preceding sub-section if -

(i) it was sent in the manner specified in that sub-section to the Permanent Head or Chief Officer of the Department or authority by which the employee was employed in employment to the nature of which the disease was due or, if he was so employed in more than one Department or authority, to the Permanent Head or Chief Officer of the Department or authority by which he was last so employed;

(ii) it was delivered at the head office of the Department or authority by which he was so employed or last so employed, as the case requires; or

(iii) it was served in any other prescribed manner."

15. The applicant seeks compensation for incapacity arising out of his cervical spondylosis. For the purposes of section 16, the question of the timeliness of the notice of accident and claim for compensation is to be determined by reference to subsection 16(4). This was a subsection inserted by Act Number 98 of 1959, which came into effect on 4 December 1959. Although it was therefore not in existence at the time of the ammunition locker accident, nevertheless, it is the subsection, compliance with which will determine whether the applicant's claim may be entertained.

16. The evidence establishes that the applicant first became aware that he was suffering from his disease in 1978, after the x-rays had been taken at Bankstown Hospital. The claim for compensation was made some 21 years later, at the same time as notice was given of the contracting of the disease. Both the notice and the claim are clearly well out of time. The applicant relies upon the provisos in subsection 16(1) to cure the want of notice and the failure to make a claim within the specified period on the grounds that the want of notice and the failure to make the claim were both occasioned by "other reasonable cause".

17. The first submission of the applicant was that he was given no advice or instructions to lodge a claim for injury pursuant to section 16 by the Captain of the Kookaburra, or by any other officer to whose orders he was subject, either shortly after the accident or at any time during his naval service. The applicant submitted that his employer (the Royal Australian Navy) had a duty of care to instruct him formally on his rights and obligations in relation to compensation, particularly in relation to the time limits placed on the need to give notice and to make a claim.

18. The second submission, supporting the applicant's claim to amelioration by reference to the "other reasonable cause" concept, was that it would be unreasonable for the applicant to be aware of the time limits set down in the Act when there was a lack of knowledge of these limits among senior officers throughout the three services. Reference will be made to their written evidence later.

19. The third submission, in support of the "other reasonable cause" argument was that Military Board Instructions, in force at the time, placed certain obligations on commanding officers. Reliance was placed particularly on paragraphs 38 and 39 as follows:

"38. When a member is injured, the CO of the member will ensure that an AAF D11 is completed, without delay, unless the injuries have proved fatal, in which case the provisions of para 46 of this instruction will apply.

39. The medical officer who attends to the member will regard, on the AAF D11, a description of the disability and the probable period, if any, during which the member will be incapacitated from resuming duty or civil avocation and whether in his opinion -

(a) the injury will, or is likely to, cause permanent ill-effects;

(b) the injury will, or is likely to, impair the future efficiency of the member as an officer or a soldier;

(c) the present condition of the member could have resulted from an injury so stated by the member;

(d) there is any evidence of a pre-existing disability and if so, has it been aggravated by any recent injury; and

(e) the injury is of a minor nature."

20. It was submitted that as neither the applicant's commanding officer, nor any other officer on his instructions, had ensured that a "AAF D11" was completed (this was a reference to a standard form of report of an injury or illness) then this failure on the part of the commanding officer to carry out his duty excused the applicant and gave him reasonable cause for non-compliance with the timeliness provisions of section 16. It was pointed out that in the note to the relevant paragraph in the military board instructions, there was a further instruction relating to subsequently developed conditions in these words:

"It is stressed that application under this paragraph is required in every case where the injury may eventually give rise to a claim for compensation whether or not a present claim is involved."

21. The respondent's submissions, briefly, were that the suggested duties owed by the applicant's employers to give advice and the suggested failure to give that advice were irrelevant. It was submitted that the applicant's case was based upon the contraction of a disease as defined, and that the relevant period was, therefore, in 1978. If there had been an dereliction of duty on the part of the applicant's officers, it would have been in 1957 when he was first examined after the accident, or in 1958 when he was examined prior to discharge. The fact was, however, that he did not have the compensable condition at that time. Even if he had been advised to make a claim, he could not have established the existence of the spondylosis in 1958. Even if, as the applicant submitted, a distinction has to be drawn between the military and civilian cultures to understand the difference between duties owed in each case to employees, the fact was, as the respondent submitted, that any such postulated duty would long cease to have existed by the time the applicant first became aware of the existence of his disease.

22. The second submission of the respondent was that ignorance of one's rights does not amount to reasonable cause. The respondent relied upon Commonwealth of Australia v Connors (1989) 86 ALR 247 at 252.

23. The six months period referred to in the section is the six months immediately following the accident in the case of a claim for an injury. In the case of a claim arising out of the contraction of a disease, the six months period is to be measured from the time when the applicant first became aware that he was suffering from the disease. It follows that one is concerned only with that period in establishing whether any of the three ameliorative factors (mistake, absence from Australia or other reasonable cause) was present (Re Willis and Australian Telecommunications Commission and Anor (1989) 19 ALD 665). It is also clear from that case that any of the three factors to be relied upon must have been one which occasioned the applicant's default.

24. In Black v City of South Melbourne (1963) VR 34 at 37, a Full Court of the Supreme Court of Victoria said:

"It has to be borne in mind, however, that what the applicant under the section has to show in order to make out a case of mistake thereunder, is not merely that he [sic] was mistaken but that his [sic] failure to give notice within the prescribed time was occasioned by mistake. It is not enough for him [sic] to show that he [sic] was mistaken, if in fact he [sic] was, unless that mistake occasioned the failure to give notice. The first inquiry must therefore always be as to the cause of the failure to give notice as required by the statute. If it appears that the reason why notice was not given as required was that the person concerned had never heard of the section and did not know of its requirements, then he [sic] fails to establish mistake occasioning the failure to give the required notice, even though it should turn out that he [sic] was labouring under a misconception as to the law relating to his claim. For, as we have seen, ignorance of the requirements of the section does not constitute a mistake thereunder."

25. The applicant relies upon two main facts to establish "other reasonable cause". The first is a failure on the part of the Navy, or any of its relevant officers, to instruct the applicant on his rights and, therefore, to carry out an alleged duty of care. The second fact upon which the applicant relies is the alleged failure by officers to carry out their duties set out in the Military Board Instructions.

26. The six months period when "other reasonable cause" must be established occurred some twenty years after the applicant had left the Navy. It follows that even if there had been a duty of care as alleged, even if there had been a failure to observe that duty of care as alleged, and even if the commanding officer or other relevant subordinate officers had failed to comply with Military Board Instructions, it could not be said that these failures occasioned the applicant's default.

27. The fact is that the condition in respect of which the applicant seeks compensation did not exist, or more precisely, the applicant was not aware that he was suffering from the condition until 1978. He could not have been given notice by his commanding officer at that time. Any notice that he could have given twenty years earlier would not have occasioned his failure to make the claim in time.

28. In this respect, the facts of Mr Gallagher's case are markedly different from the facts in Re Loft and Comcare (AAT 10819, 21 March 1996) upon which the applicant placed much reliance.

29. The third fact upon which the applicant relied to support his "other reasonable cause" argument was the written evidence of some six former officers who stated that they were unaware of the provisions of section 16, even though it was part of their duties to advise their men of their rights. The applicant's case was that it was unreasonable to expect him to be aware of that section in those circumstances.

30. I will say nothing about the adequacy of the evidence from these six witnesses. Even if one took everything they said at face value, the thrust of their evidence would be that they were ignorant of the terms of the 1930 Act in the same way that the applicant was ignorant.

31. All the cases agree that ignorance does not amount to a mistake. Failure to be aware of any rights or total ignorance of the Act is not the type of mistake contemplated by either of the provisos (Scott-Holland v Commonwealth of Australia (1983) 69 FLR 139). In Commonwealth of Australia v Connors (1989) 86 ALR 247 at 252, Northrop and Ryan JJ observed that ignorance as signifying failure to advert to the existence of a right cannot of itself constitute "reasonable cause" under the 1930 Act. I would also respectfully add that it cannot constitute "mistake".

32. The applicant clearly has not complied with the provisions of section 16. The disease which is said to cause his incapacity did not arise until some twenty years after the accident. The claim for compensation and the associated notice was not made or given until some twenty years after that event. The provisos to subsection 16(1) are not available to the applicant to cure the want of notice or the failure to make a claim within the stipulated period, having regard only to the above evidence.

33. It follows that the Tribunal is not empowered to "admit" the claim, which I understand to mean "to entertain" or to receive, consider and decide upon according to law. There is, in fact, no basis for the Tribunal to continue to investigate the applicant's claim.

34. The decision under review, therefore, is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr BJ McMahon (Deputy President)

Signed: .....................................................................................

Associate

Date of Hearing 19 April 1999

Date of Decision 27 April 1999

Representative of Applicant Returned Services Leagues, Mr P Carey

Counsel for the Respondent Mr B Skinner

Solicitor for the Respondent Australian Government Solicitor