Deveson and Comcare [1999] AATA 80 (11 February 1999)

Last Updated: 17 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 80

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/155

GENERAL ADMINISTRATIVE DIVISION )

Re BYRON JAMES DEVESON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date 11 February 1999

Place Canberra

Decision The Tribunal has jurisdiction to entertain the applicant's application for review.

.................(Signed)................

Deputy President B.H. Burns

CATCHWORDS

COMPENSATION - jurisdiction - whether applicant failed to notify of injuries as soon as practicable - applicant not barred from pursuing application for review.

Safety Rehabilitation and Compensation Act 1988 - s53

Compensation (Commonwealth Government Employees') Act 1971 - s53

Commonwealth Employees' Compensation Act 1930-1956 - s16

Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248

REASONS FOR DECISION

11 February 1999 Deputy President B.H. Burns

1. This is a question of jurisdiction arising as a result of an assertion by Comcare ("the respondent") that Byron James Deveson, ("the applicant"), is barred from pursuing a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act") on account of his failure to give notice of his injuries, namely, aggravation of hearing loss and depression, as soon as was practicable.

2. The Tribunal is of the view that it would be in the interests of the parties, bearing in mind the history of this matter and bearing in mind the Tribunal's view of the facts in the matter, that its decision be given now. It follows that the reasons of the Tribunal are not as detailed as they might otherwise have been and are specifically directed at the parties and their representatives. In this regard, they are very much akin to ex tempore reasons.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with other documentary material tendered by the parties at the hearing. In addition to the documentary material placed before it, the applicant gave oral evidence before the Tribunal.

4. The applicant was represented by Mr R. Crowe, and the respondent was represented by Mr S. Pilkinton, both of counsel.

5. By way of background, the Tribunal makes the following findings of fact which were agreed as between the parties.

(a) In 1954, when he was eight years of age, the applicant suffered a degree of hearing loss.

(b) In 1967, the applicant commenced employment with the Australian Public Service.

(c) In 1968, the applicant commenced employment with the Commonwealth Department of Works as an analytical chemist at the Mt Stromlo Water Treatment Plant Laboratory where he remained until 1977.

(d) In 1977, the applicant moved to the Commonwealth Department of Health and Family Services where he worked until 1983 in the National Biological Standards Laboratory (now the Therapeutic Goods Administration Laboratory) as a chemical analyst of pharmaceutical products.

(e) From 1983 to 1992, the applicant worked in the Pharmaceutical Chemistry Evaluation Section of the Therapeutic Goods Administration Laboratory which entailed non-laboratory work.

(f) From 1992, the applicant has not attended work. The applicant was initially certified as medically unfit for work and has had leave without pay thereafter.

(g) On 15 July 1997, the applicant lodged a claim for compensation (T25). In his claim he alleged to be suffering from "1. Psychiatric illness resulting from harassment and discrimination; 2. Physical illness resulting from exposure to toxic materials" and, in particular, deafness. In particular, it was asserted that exposure to toxic chemicals in the course of employment in various laboratories during the period 1968 to 1983 has aggravated his pre-existing hearing loss, whilst harassment and discrimination in the work place from 1968 to 1992 has caused him depression.

(h) The applicant's claim for compensation was rejected by a delegate of Comcare on the grounds that his employment had not contributed to a material degree to either condition (T43).

(i) The applicant requested a reconsideration of the decision whereupon the decision was affirmed. In so doing, the independent review officer noted that s53 of the Act could well apply to bar the applicant from claiming compensation under the Act (T55).

(j) On 12 May 1998, the applicant applied to this Tribunal for review of the reconsideration decision.

6. In these proceedings, it was alleged by the respondent that the 1988 Act does not apply to the applicant because of his failure to notify of his injuries as soon as was practicable and that, on this basis, the Tribunal lacks jurisdiction to entertain his application for review. There is clear authority that the Tribunal is competent to consider the limits of its authority and the existence of its jurisdiction. Indeed, in order to perform its statutory duty of providing merits review of administrative decisions, the Tribunal will be obliged to form a conclusion on the existence and limits of its jurisdiction and, where necessary, undertake an examination of the relevant facts and law for this purpose (Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248). Consequently, the Tribunal must examine the relevant facts and law pertaining to the applicant's obligations under s53 of the 1988 Act and under similar provisions in previous Acts - s16 of the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act") and s53 of the Compensation (Commonwealth Government Employees') Act 1971 ("the 1971 Act") - to the extent that they relate to the applicant's circumstances. If the Tribunal is satisfied (as the respondent contends it should be) that the applicant has not complied with the relevant legislative provisions, he will then, by force of law, be barred from utilising the provisions of the 1988 Act including his rights to seek review by this Tribunal of the reviewable decision to deny him compensation. In this scenario, the Tribunal would not have jurisdiction to entertain his application for review. If, on the other hand, the Tribunal should not be so satisfied, there will be no such bar and the Tribunal will be properly placed to entertain his application for review.

7. There was little dispute as between the parties as to the relevant legislative provisions which the Tribunal sees no useful purpose in setting out in full. Further, as the relevant facts and issues will no doubt be fresh in the minds of the parties, the Tribunal does not see any useful purpose in outlining in detail the evidence which was placed before it and the submissions advanced on behalf of the parties.

8. Suffice to say, the applicant gave evidence that until quite recently, he was unaware of the possibility that there might be a causal link between the decline in his hearing ability and exposure to certain toxic chemicals in the course of his employment in Commonwealth laboratories during the period 1968 to 1982. The applicant maintained that in late 1996, a suspicion formed in his mind as to the existence of such a link which had been prompted by media reports appearing around that time. He said he acted swiftly thereafter, embarking upon an investigation of avenues which might support his case including researching medical journals and talking to colleagues in the scientific community. The applicant gave evidence that it was about six months later that he felt he had gathered together sufficient material to mount a strong case and that his claim for compensation was lodged a matter of weeks thereafter. With regard to his depression, the applicant gave evidence that it was not until mid 1997 that he became aware that his depression, which was diagnosed in 1996, could be attributed to work-place factors. In summary, the applicant maintained that his lack of awareness as to the necessary causal link between the circumstances of his employment and his medical conditions together with his ignorance in general as to his entitlement to claim compensation from the Commonwealth was the reason why it was not until 1997 that he lodged a claim for compensation.

9. The respondent on the other hand contended that the applicant was not a credible witness. Mr Pilkinton suggested that the Tribunal should find that the applicant had not notified of his of his injuries as soon as was practicable as he had chosen to pursue other avenues of redress including an application for invalidity retirement from Comsuper. It was suggested that only after the applicant realised that his Comsuper application was not progressing that he decided to lodge a claim with Comcare, a fact denied by the applicant in his evidence.

10. In making its decision, the Tribunal would indicate that it has had regard not only to the whole of the material before the Tribunal but to the various submissions of the parties, including those pertaining to the question of the applicant's credibility.

11. The Tribunal had the advantage of closely observing and listening to the applicant during the giving of his testimony. The Tribunal found the applicant to be an impressive witness. At all times he did his best to accurately and honestly portray the events in question, and whilst his memory could not be described as perfect, this did not detract from his credibility as a witness. It is the firm view of the Tribunal that the applicant's account of the events under consideration had a ring of truth about it and the Tribunal has no hesitation in accepting it, and particularly so as to when he said he first became aware that his hearing loss and depression were due to work-related factors and were potentially compensable.

12. The Tribunal is mindful that in considering whether the applicant has complied with the obligations imposed by s53 of the 1988 Act, s53 of the 1971 Act or s16 of the 1930 Act, in each case the notification obligations relate only to injuries as defined by the relevant legislation. That of course means an injury arising out of or in the course of the person's employment. For example, when "injury" is used in s53 of the 1988 Act, regard must be had to the definition of "injury" in s4 which makes it clear that the injury is one which arises out of or in the course of employment, and similarly with s27(1) of the 1971 Act and s9 of the 1930 Act.

13. Having regard to the above, the Tribunal finds as fact that the first point in time at which the applicant could be said to have become aware, in any meaningful sense, of his injuries, being injuries that arose out of or in the course of his employment, was after he had gathered together all the material relevant to his claim and had confirmed in his own mind that there was a connection between the circumstances of his employment and his medical conditions. On his evidence, this was only a matter of a few weeks prior to the lodging of his claim for compensation on 15 July 1997 which served also as notification for the purposes of the 1988 Act. The Tribunal finds that the applicant did not deliberately set about to delay the lodging of his application for review. Rather, he pursued his claim conscientiously from the time he became aware of the possibility of there being causal links between the circumstances of his employment and his medical conditions until the lodging of the application in July 1997. Conversely, if it is said there was delay on the part of the applicant in notifying of his injuries, the Tribunal finds that it was due entirely to a reasonable cause, namely, the applicant's ignorance as to the existence of a causal link between the circumstances of his employment and his medical conditions until 1997.

14. It follows that on any view, and pursuant to whichever of the provisions of the 1988, 1971 and 1930 Acts one has regard to, it cannot be said, and the Tribunal so finds, that the applicant is precluded from proceeding with his application for review.

15. It follows that the decision of the Tribunal is that it has jurisdiction to entertain the applicant's application for review with respect to the two conditions, there being no bar to entertaining the application by virtue of any of the provisions of the 1930, 1971 or 1988 Acts which require a worker to notify of an injury as soon as was practicable.

I certify that this and the six (6) preceding pages are a true copy of the decision and reasons for decision herein of DEPUTY PRESIDENT B.H. BURNS

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

Peter Psaltis (Associate)

Date of Hearing 27 January 1999

Date of Decision 11 February 1999

Counsel for the Applicant Mr R L Crowe

Solicitor for Applicant Mr B Redpath

Counsel for the Respondent Mr S Pilkinton

Solicitor for the Respondent Mr R McLean