Walter and Comcare [2000] AATA 799 (8 September 2000)

Last Updated: 20 March 2001

DECISION AND REASONS FOR DECISION [2000] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/434

GENERAL ADMINISTRATIVE DIVISION )

Re Colin WALTER

Applicant

And COMCARE

Respondent

PRELIMINARY DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 8 September 2000

Place Sydney

Decision The Tribunal determines that the Applicant's mistaken belief was a reasonable cause of his failure to give notice and make a claim for compensation in accordance with s16(1) of the Commonwealth Employees' Compensation Act 1930, and therefore the Tribunal has jurisdiction to proceed to hear and determine this application pursuant to the Safety, Rehabilitation and Compensation Act 1988.

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

M T Lewis

Senior Member

CATCHWORDS

WORKERS COMPENSATION - hearing loss and tinnitus - whether Applicant notified within six months of the accident occurring - whether Commonwealth prejudiced by want or defect in notice -whether want or defect of notice occasioned by mistake or other reasonable cause

Commonwealth Employees' Compensation Act 1930 - ss 10, 16

Safety, Rehabilitation and Compensation Act 1988 - s124(2)(b)

Australian National Airlines Commission & Anor v Cassidy (1964) 110 CLR 172

Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328

Comcare v McGuire (1996) 68 FCR 329

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

Re Scutts and Department of Defence (AAT 13085, 10 July 1998)

Re Commonwealth of Australia and Albert William Connors (1989) 17 ALD 313

Stevenson v Metropolitan Meat Industry Commission (1937) 37 SR (NSW) 109

Black v City of South Melbourne (1963) VR 34

REASONS FOR DECISION

8 September 2000 Mrs M T Lewis, Senior Member

1. This was a preliminary hearing in order for the Tribunal to consider a threshold point. The Applicant seeks compensation for hearing loss and tinnitus resulting from an incident that occurred on 12 October 1965. Due to the transitional provisions contained in s124(2)(b) of the Safety, Rehabilitation and Compensation Act 1988 ('the 1988 Act"), the Tribunal is required to determine whether compensation would be payable to the Applicant under the terms of the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act"), before the Applicant can be entitled under the 1988 Act. The threshold point to be determined is whether the Applicant complied with the time limits imposed under s16 of the1930 Act.

2. The Tribunal had before it documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975. In addition the Applicant tendered a sick report dated 12 October 1965 (exhibit A) and a statement dated 9 August 2000 (exhibit B). The Respondent tendered an affidavit of Gavin Scott Stuart dated 2 August 2000 (exhibit 1) and a Certificate of Registration in New South Wales of Dr Ross Arthur Johnson (exhibit 2).

3. The Applicant was unrepresented and gave oral evidence. Mr Gavin Scott Stuart, solicitor for the Respondent, also gave oral evidence.

background

4. The Applicant was a member of the Citizens Military Forces ("the CMF") during the period 1 April 1963 to 18 August 1966. During this time he was a trooper in the 1/15 Royal New South Wales Lancers, based at Parramatta. He was qualified in driving vehicles, including armoured vehicles and the Centurian 50 tonne tank.

5. During October 1965 the Applicant attended the annual 1/15 Lancers Camp at Puckapunyal, Victoria. His duties at that camp involved "B" vehicle driving (eg, trucks, ambulance and 4WD), but did not include tank driving. However, at short notice he was ordered to the "battle run" area to take over as tank driver from a driver who had suddenly become ill. During the "battle run" live ammunition was fired from the main gun - the tank was already at firing point when he was delivered at the scene by a 4WD vehicle.

6. In his statement, the Applicant said -

I climbed over the tank to enter via the driver's compartment in front of the turret. I entered the driver's compartment and commenced to pull down the driver's hatch cover.

As I did, the main gun of the tank (a 20 pounder) was fired.

I was totally unprepared for the firing, as I was still closing the hatch above my head. I did not even have time to place my headphones on - this would have muffled some of the sound.

I recall that the shock from the firing was so great that I fell down into the driver's seat, injuring my shoulder. But by far the most memorable sensation was the screaming in my ears and almost total inability to hear.

I completed the battle run under difficult circumstances, as I could hardly hear the crew commander's instruction through the headphones, due to the ringing in my ears (tinnitus).

7. The Applicant said he reported the incident to the Crew Commander immediately (via the tank's radio). He was ordered to complete the battle run. He believed this was because there was no other driver available to take his place and the exercise was already behind schedule because a replacement driver (himself) had to be found. He said that he reported the incident to the Army medical officer at the conclusion of the exercise. He said -

I recall having told the person about my main problem which was the noise in my head and the sudden hearing loss and they were more concerned about my arm.

8. The Applicant said the Army medical officer recorded the injury to his shoulder but did not record that he had ringing in his ears or difficulty hearing. The medical officer's advice was that the ringing would stop and his hearing would return in a few days, and that this was a common occurrence with gunfire. The Applicant considered the fact that the Sick Report (exhibit A) states "muscle strain right shoulder" only, was indicative that the doctor did not place much importance on hearing loss. The Sick Report was among medical documents that the Applicant requested from the Department of Defence under the provisions of Freedom of Information, after his claim for compensation was refused on 22 June 1999 on the basis that there was no record of the incident occurring.

9. After reporting the incident on 12 October 1965, the Applicant did not make any further report to any person in the Army. He was on a two-week camp when the incident happened. He then returned to his job as a clerk at Fairfield City Council and after a few weeks or "a couple of months at the outside" he consulted Dr Ross Johnson because there had only been a "slight return" of his hearing and tinnitus had been constant. The Applicant said Dr Johnson told him he was not eligible to make any sort of claim because he was not a permanent member of the Armed Services and because he had not served in an overseas capacity.

10. The Applicant said his father, who worked at the Repatriation General Hospital Concord at the time, recommended Dr Johnson as a "Repat. doctor" who "was able to ... assess claims". He said his father encouraged him to see the doctor in case his condition did not improve. After seeing Dr Johnson he saw other doctors and hearing specialists. However, because of the passage of time since those consultations he has been unable to obtain documentation of those visits.

11. The Applicant moved to Concord in 1967. About two years after he consulted Dr Johnson about his hearing and tinnitus, he became the Applicant's family doctor. The Applicant said he has experienced tinnitus since the incident and has sought various medical treatments, but until now he has not sought compensation. He said the reason he did not bring a claim was largely because of the information he received from Dr Johnson. He first became aware that he could claim in early 1998 through his current doctor, who referred him to an ear, nose and throat specialist about a sinus condition. That specialist affirmed to the Applicant that he could make a claim regarding the incident in 1965. The Applicant then submitted his claim on 12 February 1998 (T4).

12. In cross-examination the Applicant said that it was only after seeing the Respondent's submissions that his mother reminded him and he then recalled his father's insistence that he attend Dr Johnson. This occurred only three to four months before the preliminary hearing, and after the first Conference conducted by the Tribunal. In the meantime, the Applicant had lodged and served his statement at the first Conference, which made no reference to the consultation with Dr Johnson. The Applicant's statement notes that the reason he did not make a claim earlier was because of the inaccurate advice he received from a doctor - it does not specify which doctor gave him that advice. The Applicant made that statement at the request of the Respondent.

13. The Applicant said he "hadn't sought compensation because the injury wasn't a visible one. My understanding is that if I'd had an arm shot off or a leg or something like that then certainly I could come along and irrespective of if I was in the CMF or anything else I could make a claim for such a thing as that". He said that when he wrote that statement he gave the reasons to the best of his knowledge at the time.

14. The Applicant did not seek legal advice about making a claim. He believed that because he had been in the CMF he could not make a claim.

15. The Applicant said he had hoped that his condition would "go away", and that was the advice he received from others. He agreed that he had not understood his rights under the 1930 Act. He did not seek further advice because he had been advised by people he thought were knowledgable about such matters. He held the view that the advice had been correct until about 1998. However, he noted that in available reports dating back to 1985, he had always asserted that his problem was "caused in the Army".

16. The Applicant said that the letters from Dr D Pohl and Dr P Rundle (T12, pp25-26) were the only records he could obtain relating to his hearing loss as they were with some medical records held by his former general medical practitioner, Dr J Maltby. The Applicant could not contact Dr Rundle or Dr Pohl.

17. The Applicant had not tried to locate Dr Johnson whom he ceased consulting in 1975. He estimated that Dr Johnson was aged about 70 years at that time.

18. Mr Gavin Scott Stuart, solicitor for the Respondent, provided an Affidavit (exhibit 1) and gave oral evidence regarding his inability to obtain medical records from Dr Rundle and Dr Pohl. Mr Stewart obtained a certificate of Registration from the New South Wales Medical Board in respect of Dr Johnson (exhibit 2), but was unsuccessful in attempts to contact him. He was informed by his process server that somebody by a completely different name was at the Concord address and the only Dr Ross Johnson was in Tasmania. He was advised that further investigations could be carried out by checking microfiche records for addresses, but no further enquires were made. Mr Stuart had obtained records relating to the Applicant's service in the Army, but stated that they were not relevant to the alleged incident. In response to a question from the Applicant, Mr Stuart said the Sick Report (exhibit A) was not included in the Army records.

legislation

19. Section 16(1) of the 1930 Act states:

The Commission 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 had 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 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.

submissions

Respondent

20. The following points were made in a submission on behalf of the Respondent regarding the effect of s16(1) of the 1930 Act:

(i) The word "admit" in the first paragraph means "entertain", not "grant". The opening words of the sub-section therefore mean that the Tribunal is not to hear a claim unless the conditions of the sub-section have been complied with (Australian National Airlines Commission & Anor v Cassidy (1969) 110 CLR 172 and Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328 at 334).

(ii) The sub-section requires the Applicant to give notice of the accident:

(a) as soon as practicable after it has happened; and

(b) before the employee has voluntarily left the employment of the Commonwealth.

(iii) The sub-section requires an applicant to make a claim for compensation within six months from the occurrence of the accident.

(iv) Notwithstanding the above requirements, s16(1) contains a proviso which states that:

(i) the want of any defect or inaccuracy in the Notice ...; and

(ii) the failure to make a claim within the period specified ...

shall not prevent consideration of the claim in specified circumstances. The use of the word "and" between paragraphs (i) and (ii) means that the Applicant must satisfy both limbs of the proviso before it will apply.

(v) Paragraph (i) of the proviso may be satisfied where:

(a) The Commonwealth is not prejudiced; or

(b) The want of or defect or inaccuracy in the notice was due to a "mistake, absence from Australia or other reasonable cause" (Comcare v McGuire (1996) 68 FCR 329 at 348).

(vi) If the Applicant is able to show a mistake, absence from Australia or other reasonable cause, then prejudice is not relevant.

(vii) Paragraph (ii) of the proviso will be satisfied where the Applicant's failure was due to a mistake, absence from Australia or other reasonable cause in the six months following the injury (Re Willis and Australian Telecommunications Commission & Anor (1989) 19 ALD 665).

21. It was submitted that if the above construction of s16(1) of the 1930 Act is applied in this case, it is clear that the Applicant has not:

(a) provided notice of the injury as soon as practicable after the incident happened or before he voluntarily left the employment of the Commonwealth; and

(b) made a claim for compensation within six months from the occurrence of the accident.

22. It was submitted that, prima facie, neither Comcare nor the Tribunal should consider the Applicant's claim for compensation. It was submitted that the Applicant must satisfy both limbs of that proviso before it can be invoked in his favour.

23. It was submitted that ignorance of the right to claim compensation does not amount to a mistake (Re Scutts and Department of Defence (AAT 13085, 10 July 1998)) or a reasonable cause (Re Commonwealth of Australia and Albert William Connors (1998) 17 ALD 313).

24. It was submitted that a mistake or reasonable cause may exist where the Applicant misunderstood his entitlement under the law or the effect of the law (Re Willis and Australian Telecommunications Commission & Anor (1989) 19 ALD 665). However, it was submitted that the Applicant's failure to make a claim for compensation within six months was not occasioned by mistake or reasonable cause. Rather, the Applicant failed to do so because, at the relevant time, he was ignorant of his right to claim compensation. He came under the mistaken belief that he could not do so after speaking with Dr Johnson in late 1966.

25. It was submitted for the Respondent that the Tribunal should not accept the evidence of the Applicant that he refrained from making a claim due to the advice he received from Dr Johnson, or that he only remembered this when he talked to his mother a few months ago. If the Applicant had received advice from Dr Johnson, weeks or months after the incident, and if that advice had operated on the Applicant's mind as the reason why he did not make a claim for compensation over the years, then he would remember it.

26. It was submitted that if the Tribunal were to accept the evidence of the Applicant on the above point, then it does not constitute a reasonable cause. It was submitted that Dr Johnson was a general practitioner, and the Applicant did not seek any other advice from a service organisation.

27. It was submitted that consulting the Army doctor is not equivalent to making a report of the injury. If a person were subject to continuous ringing in the ears, which did not subside, one would be circumspect of any initial advice that it would "just go away", and also circumspect of other advice received from doctors. A reasonable person in that situation would not seek legal information or entitlement information from a doctor. A reasonable person, seriously interested in making a claim, would have discussed the matter with somebody in the Army or somebody in a union or service organisation.

28. It was submitted that as the Applicant failed to satisfy the second limb of the proviso, it was unnecessary to deal with the issue of prejudice to the Commonwealth. It is submitted that the Commonwealth would be significantly prejudiced if this claim was permitted. The accident occurred approximately 35 years ago and the Commonwealth is prejudiced because it:

(i) cannot verify factual circumstances surrounding the claim;

(ii) is unable to obtain contemporaneous medical records from relevant doctors since they have either been lost or destroyed;

(iii) cannot investigate how the Applicant's hearing loss changed over time due to inability to obtain medical records;

(iv) is unable to identify all relevant doctors due to the fact that the Applicant is now unable to recall doctors names and/or addresses;

(v) has been unable to fully investigate the claim in the way it might have been able to do had the claim been lodged within the appropriate six month period.

Applicant

29. The Applicant submitted that he has complied with the requirements of s16(1). He submitted that he gave notice of the accident immediately, and that notice is recognised in the Sick Report (exhibit A). He submitted that the medical officer did not record the details of his hearing loss and tinnitus, or advise him that he could make a claim for his injury.

30. The Applicant submitted that whilst he did not make a formal claim for compensation within six months of the incident, his failure to do so was due to mistake or reasonable cause. He pointed to the incorrect advice given to him by Dr Johnson as his reason for delaying in making a claim. He noted that Dr Johnson had been a "repatriation doctor", and explained that this was the reason why he had heeded his advice.

discussion of issues

31. The Tribunal finds that the Applicant did not report the incident formally within six months of its occurrence. The first question the Tribunal must ask relates to the cause of the Applicant's failure to give notice, as required by s16.

32. In Re Scutts and Department of Defence (AAT 13085, 10 July 1998), Deputy President McMahon stated:

It seems clear that one is to look to the six months period only, when examining whether any of the three ameliorating factors is present (Re Willis and Australian Telecommunications Commission & Anor (1989) 10 AAR 382 at 394). It is also clear that any of the three factors to be relied upon must have been one which occasioned the Applicant's default.

33. In Black v City of South Melbourne (1963) VR 34 at 37, the Full Court of the Victorian Supreme Court noted that if the applicant submits that failure to give notice within the prescribed time was occasioned by mistake, it is not enough to simply show that he was mistaken. If for example the Applicant has never heard of the section or its requirements then he would fail to establish that mistake occasioned his failure to give notice. The court noted "ignorance of the requirements of the section does not constitute a mistake thereunder". This sentiment is echoed throughout the caselaw on this point (for example Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328). Nor can ignorance signifying failure to advert to the existence of a right constitute "reasonable cause" (Commonwealth of Australia v Connors (1989) 17 ALD 313).

34. However, as noted by Deputy President McMahon, this does not impose a requirement on the Applicant to have knowledge of the law in its correct application to the facts of his case. In Stevenson v Metropolitan Meat Industry (1937) 37 SR (NSW) 109 Davidson J said at 118 -

... when an applicant knows the law to the degree that it provides that, in the case of injury in his employment, he is entitled in some circumstances to compensation, and bona fide applies his mind with the information in his possession and knowledge to the question of the application of the law as he knows it to the facts of his own particular case, and misconceives his true position in law or fact or in both combined, he is not ignorant, but mistaken, although his mental process may not reach the standard which would be ascribed to a reasonable man.

Davidson J also noted that "once mistake is established, it is immaterial to consider whether it is reasonable or otherwise".

35. This raises the issue whether the Applicant was 'ignorant' of the existence of his rights or 'mistaken' as to his rights to compensation, ie. under s10 of the 1930 Act, there is an entitlement to compensation for incapacity caused by a disease "due to the nature of the employment in which the employee was engaged by the Commonwealth". The Tribunal Re Scutts and Department of Defence (AAT 13085, 10 July 1998) has considered the difference between "ignorance" and "mistake", and the relevant authorities, which do not need to be reiterated here. It is sufficient to say that, with respect, the Tribunal adopts the reasoning of the learned Deputy President Re Scutts on this issue.

36. As was the case Re Scutts, the Applicant in the matter now before the Tribunal failed to comply with paragraphs (a) and (b) of s16(1). The Tribunal Re Scutts referred to the provisos as "ameliorative provisions which permit the giving of late notice and the making of late claims under certain conditions". It was also stated that the meeting of only one contingency in each of the provisos is all that is needed in order to meet the hurdle in s16(1). Applying the decision of Carr J in Comcare v McGuire (1996) 68 FCR 329, at 348, each of the contingencies are to be treated as true alternatives, that is, the Tribunal does not have to consider prejudice to the Commonwealth if it finds that the Applicant's circumstances fall within any of the alternatives.

37. The Tribunal found the Applicant to be a truthful witness. While there is no corroborative evidence of a complaint about hearing loss and tinnitus, the evidence of the Applicant is consistent with the sick report (exhibit A), and under cross-examination he did not resile from his earlier evidence. The Tribunal was also impressed by the persistence of the Applicant in putting and maintaining his case. He undertook this without representation of any sort. The Tribunal concluded that this reflected the Applicant's strong conviction in his claim. The Tribunal notes the submissions for the Respondent about the negative inference that should be drawn from the late recollection of the Applicant about his consultation with Dr Johnson. The Tribunal does not accept those submissions. The Tribunal finds that the sequence of events about his recollection of that consultation were quite believable and convincing.

38. In the matter now before the Tribunal the Applicant has reflected considerable naiveness. He understood that if he had a visible injury, like a shooting injury to his arm or leg, irrespective of whether he was in the CMF or the permanent Army, he could claim compensation; but he did not have the same confidence about a problem like loss of hearing and tinnitus that was not visible. Moreover, when he consulted Dr Johnson, whom the Applicant understood to be a "Repat. doctor" and therefore knowledgeable about matters relating to ex-personnel of the defence forces, he was advised that he could not claim the condition because he was in the CMF. The Tribunal does not accept the submission of the Respondent about the Applicant's reliance on this false information. The Applicant, like many others in the community, particularly those without a high level of education, accepted the statement from Dr Johnson without further question. The prelude to that advice from Dr Johnson was the Applicant's experience with the Army doctor, who took little or no notice of the Applicant's complaints about his impaired hearing and tinnitus, and advised that it would resolve. Dr Johnson's assertion that there was no action the Applicant could take regarding pension was consistent with the way in which the Army doctor had responded about the injury. It is also consistent with the way the Crew Commander had responded when the Applicant advised him about the incident over the radio during the operation and he had been told to continue and complete the "battle run".

39. The Tribunal finds that this was neither unreasonable nor unusual. However, it led him to be "mistaken" in his belief, and applying the reasoning Re Scutts and the authorities on which it relied, this is to be distinguished from "ignorance".

40. In Re Willis, the Tribunal (Hartigan J. the then President presiding) said, after noting the relevant case law -

...consideration of the facts in each case against those principles shows that each has applied the test by looking at what was a reasonable course of conduct for the plaintiff in the circumstances in which he found himself. They have not judged the plaintiff by reference to some hypothetical man in hypothetical circumstances. It is an objective test taking into account the subjective circumstances of the plaintiff in each of those cases.

41. The Tribunal finds in the matter now before it that, considering the facts objectively, the Applicant's actions represented a reasonable course of conduct, taking into account his particular circumstances.

42. Even though it is likely in this matter that there is some prejudice to the Respondent because of the passage of time and the impossibility of tracing a number of his treating doctors, this prejudice is probably somewhat less than that stated on behalf of the Respondent. The greatest prejudice arises from there being no Army record of the Applicant suffering loss of hearing and tinnitus. There is record of his suffering a shoulder injury, however, which he said arose from the same incident. The Tribunal believes that the prejudice to the Respondent is minimal. In any event, the Applicant is entitled to have any prejudice disregarded if mistake, absence from Australia or other reasonable cause can be demonstrated as causative factors in the failure to give notice.

43. The Tribunal has found that the Applicant's mistaken belief was a reasonable cause of his failure to give notice and make a claim for compensation in accordance with s16(1) of the 1930 Act. It is therefore open for the Applicant to have his claim determined pursuant to the 1988 Act. The Tribunal has jurisdiction to proceed to consider the Applicant's substantive claim.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member.

Signed: .................K.Phillips..[Signed].........................................

Associate

Date/s of Hearing 9 August 2000

Date of Decision 8 September 2000

Counsel for the Respondent Mr Johnson

Solicitor for the Respondent Phillips Fox Solicitors

The Applicant was unrepresented.