Keen and Comcare [2003] AATA 219 (7 March 2003)

Last Updated: 7 March 2003

DECISION AND REASONS FOR DECISION [2003] AATA 219

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/700

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ALFRED LLOYD KEEN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr RG Kenny, Member

Date 7 March 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

....................(Sgd).....................

RG Kenny

Member

CATCHWORDS

WORKER'S COMPENSATION - alleged injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 - transitional provisions - whether notice of injury given as soon as practicable under Commonwealth Employees Compensation Act 1930 - whether Commonwealth prejudiced by want of notice - whether want of defect of notice due to mistake of other reasonable cause - failure to make claim within specified period - whether failure to make claim due to mistake of other reasonable cause

Commonwealth Employees Compensation Act 1930 s 9, 16

Safety, Rehabilitation and Compensation Act 1988 s 124

Re Muras and Department of Defence (1998) 52 ALD 579

Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534

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

Re Harbutt and Department of Defence (1998) 51 ALD 159

Telstra Corporation v Roycroft [1997] FCA 774

Banks and Comcare (unreported Federal Court - Kiefel J - No QG 118 of 1994)

Black v City of Melbourne [1963] VR 34

Portland Harbour Trust [1963] VR 25

REASONS FOR DECISION

7 March 2003

Mr RG Kenny, Member

BACKGROUND

1. On 15 August 2001, Alfred Lloyd Keen (the applicant) completed a "Claim for Rehabilitation and Compensation" for injuries which he described as "ankles and back". He stated in that form that the injuries occurred in June 1970 whilst he was serving as a member of the Australian Army.

2. On 15 March 2002, a delegate with the Military Compensation and Rehabilitation Service determined that the claim should be disallowed and, on 28 May 2002, another delegate affirmed the initial decision.

3. On 15 August 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975.

APPEARANCES

4. The applicant attended the hearing and was represented by Mr J Clutterbuck of counsel. Mr C Clark of counsel appeared on behalf of Comcare (the respondent).

5. The following material was tendered and taken into evidence:

Exhibit 1: the T documents (T1-T26);

Exhibit 2: an affidavit, dated 14 February 2003, by the applicant with attachments A to E;

Exhibit 3: the applicant's Army medical records;

Exhibit 4: a statement, dated 26 February 2003, by Paul Ontong;

Exhibit 5: an affidavit, dated 25 February 2003, by Katrina Palmer with attachments A and B;

Exhibit 6: an affidavit, dated 26 February 2003, by Katrina Palmer;

Exhibit 7: documents provided by Jeffrey Houghton, chiropractor;

Exhibit 8: documents provided by Dr J Blakie;

Exhibit 9: documents provided by the Manager of the Goombungee Medical Practice, Goombungee;

Exhibit 10: an e-mail message, dated 26 February 2003, from Pamela Ford;

Exhibit 11: a letter, dated 26 February 2003, from Zelda Murray; and

Exhibit 12: a letter, dated 7 February 2003, from Stephen Routh.

LEGISLATIVE FRAMEWORK AND ISSUE FOR DETERMINATION

6. The Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries or diseases to be paid to nominated classes of Commonwealth employees, including those serving in the Australian Army, where the injury occurred after the commencement date of the 1988 Act. This was 1 December 1988.

7. The Act also contains transitional provisions which pertain to injuries that occurred prior to that date. In that regard, section 124 of the 1988 Act, in so far as relevant, reads:

"124 Application of Act to pre-existing injuries

(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act--under the 1912 Act;

(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act--under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c) in any other case--under the 1971 Act as in force when the injury, loss or damage was suffered.

...

(10) Where:

(a) proceedings for the recovery of compensation under the 1912 Act, in respect of any injury suffered before the commencement of the 1930 Act, were not maintainable by a person because of section 5 of the 1912 Act;

(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or

(c) a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;

that person is not entitled to compensation under this Act in respect of that injury."

8. The 1930 Act, as referred to in that provision, is the Commonwealth Employees Compensation Act 1930. The applicant claimed that his ankle and back problems developed during his service because of an injury in 1970. That situation is embraced by the 1930 Act. Under section 9 of the 1930 Act, the injury must have arisen out of or occurred in the course of employment with the Commonwealth. However, time-frames for giving notice of and for making a claim for the injury are provided for in sub-section 16(1) of the 1930 Act and the notice requirements are provided for in sub-section 16(2) thereof. Those provisions read:

"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 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, an a statement in ordinary language of the cause of the injury and the date at which the accident happened."

9. The issue for determination is whether the circumstances of the applicant meet the requirements of those provisions. In the event that these are not satisfied, the applicant's claim will not be considered under the Commonwealth compensation legislation.

EVIDENCE OF THE APPLICANT

10. The applicant, who was born on 23 January 1949, served in the Australian Army as a national serviceman from 27 January 1970 until 15 November 1971. In his evidence, he stated the circumstances surrounding the cause of his injuries. He was on a training exercise during the recruit training period of his service and jumped from a bank into a creek bed which caused him to jar his ankles and his back. His right ankle was the most affected joint and he was assisted to a motor vehicle by another soldier, Lyle Vidler, by placing his arm around Mr Vidler's shoulders. He was then taken by vehicle to a Regimental Aid Post (RAP) at Singleton Army Base where no medical practitioner was in attendance but where he was seen by an attendant. The attendant told him that he had severe ligament damage to his ankles. He strapped his right ankle and gave him some tablets as well as a pair of crutches and told him to "get back to it". He was not referred to a doctor. He used the crutches for about a week.

11. The applicant said that he believed the incident occurred in April 1970 although he agreed that in his claim form he had nominated June 1970 and that he had also nominated June 1970 in his affidavit of 14 February 2003 (exhibit 2).

12. The applicant said that his left ankle improved quickly with symptoms lasting for about two weeks but that he was troubled by his right ankle and back for the remainder of his service and in post-service years and experienced interference with his daily activities because of this. In particular, he would twist his right ankle from time to time and this would cause him to feel pain in his lower back. This happened both during and after his army service. The applicant agreed that he had sought medical treatment for a range of complaints during service, including on two occasions for his right ankle, but not for his back or left ankle. He said that he was in pain but did not seek treatment during service because he believed it would correct itself. He said that he had seen his local doctor for treatment shortly after leaving the army and had received ongoing treatment since then.

13. In explanation for not giving notice of or lodging a claim for his injuries until 2001, the applicant said that he had been relying on advice given to him in 1971, shortly before he was discharged, by the sergeant who was in command of the rations store where he was serving at the time. This was Sergeant Keogh who had told him that a compensation claim could be made at any time in the future as long as the injuries were documented at the time of the accident. The applicant said that he was unable to recall the first name of Sergeant Keogh. He said that the information from Sergeant Keogh was the reason for his ticking the "yes" response to the question on his Discharge History Questionnaire (T5 at 11) which asked whether he intended to apply for a pension or compensation for an existing or prior disability. He agreed that this questionnaire did not refer to his left ankle or his back.

14. The applicant agreed that he had been asked by the Department of Veterans' Affairs, by letter dated 7 September 2001 (T11 at 18), to provide a detailed statement explaining why he had not submitted his claim at an earlier time. He also agreed that he had not referred to Sergeant Keogh in his response. He then said that he had not needed to give notice or make a claim before 2001 because it did not suit him to do so as he was able to manage both financially and physically and had been in continuous employment throughout as a subcontract builder and had not needed to make a claim. The applicant said that he had obtained copies of his army records including medical records in 1989 and had realised that there was no documentation of his visit to the RAP when his injury first occurred. He said that he had not made further attempts to obtain such documentation from the army.

15. The applicant said that he had been involved in heavy physical activity in his work over the years but that he had only injured himself once when he hurt his back some 15 years ago.

OTHER EVIDENCE

Lyle Vidler

16. Lyle Vidler provided a letter, dated 18 December 2001 (T16), in which he recalled that the applicant had injured his ankles jumping into a creek bed in April 1970, that he was unable to walk at the time, and that he was taken to the RAP by vehicle where he was given crutches.

Paul Ontong

17. Mr Ontong said that he had been an employee of the Commonwealth of Australia for 24 years and was presently an instructing officer for appeals to the Tribunal under the 1988 Act and that his duties over the last 12 years included the full range of tasks involved in the investigation of claims and the preparation of cases for hearing before the Tribunal.

18. He said that the delay of the applicant in lodging a claim for compensation has prejudiced the respondent because the respondent had been unable to properly investigate the circumstances of the various alleged incidents and had not been able to have the applicant properly examined for the purposes of compensation either during his service in, or after he left the army in relation to the cause of the condition and was unaware that the applicant experienced any problems with respect to his condition until be lodged the claim. He said that this had caused the respondent considerable difficulty in obtaining evidence from witnesses, both medical and non medical, who were present at the time of the onset of the condition or shortly thereafter. He also said that any witnesses would not have a sufficiently clear recollection of events after the lapse of time to provide reliable evidence about this claim.

19. He also said that the applicant worked as a builder post discharge and that it was difficult, if not impossible, to separate the effects that his employment as a builder might have had on his condition.

20. Mr Ontong conceded that he had not attempted to contact Singleton Army Base to determine whether any 1970 RAP treatment records were there but said that, in his experience, any such record would have been kept with the applicant's medical file and he noted that his records did not include such records.

MEDICAL EVIDENCE

21. In evidence were medical reports referring to treatment given to the applicant. These included a report, dated 17 December 2001 (T15), from Dr C Harget-White; reports, dated 11 December 2001 (T14) and 24 February 2003 (exhibit 7), from Mr J Houghton, chiropractor, stating that he had treated the applicant since 1994; clinical notes, dated 18 November 2002, and reports, dated 18 November 2002 and 21 February 2003 (exhibit 8), from Dr J Blakie stating that he had treated the applicant in 1972, 1973 and 1974 for recurring sprains of the ankles but that his medical records from that time were no longer available; and records from the Goombungie Medical Centre (Exhibit 9) comprising clinical notes and various medical reports. In exhibit 9 was a report, dated 17 December 2001, from Dr C Harget-White who stated that she had treated the applicant since 1988 and she referred to ankle instability which has led to aggravation of lumbar disc degeneration. Also in exhibit 9 was a report, dated 1 August 2000, from orthopaedic surgeon Dr L Zeller in which reference is made to a work-related back injury in 2000 as well as a contention by the applicant to his back problems being related to ankle instability.

SERVICE RECORDS

22. A Medical Examination Record completed prior to the commencement of service on 8 September 1969 describes the applicant's lower extremities and his spine as being "normal" (exhibit 3). An Attendance and Treatment Card (T4 at 10) contains entries made in June 1970 where reference is made to the applicant's right ankle and the following notation appears:

"twisted right ankle 9/52 ago and was told after a while to go after he reported to the RAP. Did not see MO".

23. The applicant's Discharge History Questionnaire (T5 at 11) records a right ankle injury during service but describes his spine as being "normal".

Pamela Ford

24. Exhibit 10 was a copy of a message, sent on 26 February 2003, by Pamela Ford, an officer of the respondent, which stated that she had attempted to find information from the Army about Sergeant Keogh but had been unsuccessful.

Defence Personnel

25. Exhibit 11 was a letter, dated 26 February 2003, from the Director of Entitlements with Defence Personnel which stated that attempts to obtain contact details of Sergeant Keogh had been unsuccessful.

Katrina Palmer

26. Exhibits 5 and 6 were affidavits, dated 25 and 26 February 2003, respectively, by Katrina Palmer, an articled clerk with the respondent's instructing solicitor. She stated that she had attempted to make contact by telephone and/or letter with persons who had been identified (at T19) by the applicant as being able to provide information about his claim. These were Geoff Solly, Rodney Gartner, Les Tracy, Jim O'Keefe and Lyle Vidler. She stated that she had been able to make contact with Mr Vidler, Mr Solly and Mr Gartner and gave the following accounts of her conversations with them:

Lyle Vidler

"(a) He knows of Mr Aflred Keen (Lloyd).

(b) Mr Vidler has known the Applicant since his national service with him commencing in 1970. Mr Vidler stated that he served in the military for a two year period.

(c) Mr Vidler did not serve with the Applicant for the whole period of his national service. He recalls that the Applicant injured his ankle during training. They only served together for a period of 5 months.

(d) Mr Vidler was aware that the Applicant injured his ankle because he did not go to Vietnam due to the injury. He believed that the injury occurred in mid 1971 while at a boot camp.

(e) When the Applicant was injured, Mr Vidler was present, by was not by the Applicant's side. He stated that there were a whole heap of blokes around when Lloyd did his ankle in as they were on training. Mr Vidler stated that although he was present, he was not "holding his hand at the time".

(f) In relation to the treatment received by the Applicant, Mr Vidler stated that he did not think that he received any treatment at the time the injury occurred. He stated that the Applicant's foot was bandaged up and that he may have been given painkillers as he could hardly walk."

Geoff Solly

"a) Initially Mr Solly stated that he did not know the Applicant. When told that the call was in relation to his employment with the military, Mr Solly stated that he remembered serving with a "Keen" during his employment, but that his name was "Lloydy" Keen.

(b) Mr Solly was employed in the military approximately 35 years ago. He stated the he was in the military in 1970 for approximately 3 to 6 months. During this period, Mr Solly served with the Applicant.

(c) When questioned on the duties performed Mr Solly stated that he and the Applicant were training together in the field for rifleman duties.

(d) In relation to injuries sustained by the Applicant during his military employment, Mr Solly responded that he would "pass" on the question, and that he would contact us if he thought of any information in this regard. To date, Mr Solly has not contacted me with further information."

Rodney Gartner

"(a) Initially Mr Gartner stated that he did not know the Applicant. He stated that the only "Keen" he knew was a "Lloydy" Keen who he served with in the Army 30-40 years ago.

(b) Mr Gartner stated that he first met the Applicant in the early 1970's. He has seen him once or twice in the last 30 years, although he did run into him a couple of months ago in the local fruit shop.

(c) He was drafted into national service in 1970 for a period of two years. He was in the same intake as the Applicant, however, he was not sure of the exact dates of service that he shared with the Applicant. Mr Gartner recalled going overseas, and that when he came back the Applicant was at Enoggera

(d) Mr Gartner left the forces in 1972.

(e) In relation to his duties, Mr Gartner stated that he was drafted into the infantry training battalion. His duties involved such tasks as running (lots of running), diving down behind trees and jumping out of trucks.

(f) Mr Gartner could not remember the exact nature of the Applicant's injuries but thought that he broke an ankle somewhere along the line. He recalled some damage to the Applicant's leg, as he was of the belief that this injury prevented him from going overseas. Mr Gartner was not sure whether it was an ankle or knee injury but maintained that the Applicant sustained an injury to one of his legs.

(g) Mr Gartner did recall that when he ran into the Applicant a couple of months ago, the Applicant mentioned something about an injury. Mr Gartner could not recall the details of this conversation."

CONSIDERATION

27. Sub-section 16(1) of the 1930 Act requires, first, that notice of an accident be given as soon as practicable after it has happened and before the employee voluntarily left the employment of the Commonwealth and, secondly, for a claim for compensation to be made within six months from the occurrence of the accident. In one sense, it may be said that the applicant gave notice of the fact of injury to the ankle during service as it was nominated on his Discharge History Questionnaire in 1971. He also indicated at that time that he intended to make a claim at some time in the future. However, such notification does not meet the notice requirements as prescribed in sub-section 16(2) of the Act and, in this case, no notice was given and no claim was made until the Claim for Rehabilitation and Compensation was lodged in 2001. Therefore, the giving of notice and the making of the claim fall well outside of the time-frames required under sub-section 16(1) of the Act. Nonetheless, that, alone, does not preclude the Commissioner from admitting the claim, in the sense of entertaining the claim (see Re Muras and Department of Defence (1998) 52 ALD 579 at 582), under that provision. It may still be considered by the Commissioner if the Commonwealth is not prejudiced by the lateness of the notice or if the lateness of the notice or claim was occasioned by mistake, absence from Australia or other reasonable cause.

28. Mr Clark submitted that the Commonwealth would be prejudiced by the lateness of the claim and referred to the evidence of Mr Ontong to support that position. In relation to the issue of prejudice to the respondent, the following reference is made in the Tribunal decision of Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535 to the purpose of the notice requirement as it appears in sub-section 53(1) of the 1988 Act which is not materially different from the provision under consideration in the 1930 Act:

"Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act."

29. In this case, the incident alleged by the applicant occurred 31 years before he lodged his claim. He has variously described it as having occurred in April or in June 1970. Attempts have been made by the respondent to obtain evidence from the persons nominated by the applicant as being able to support his contentions. That evidence, in the form of a letter from Mr Vidler and an account of what he, Mr Solly and Mr Gartner are said to have stated to Katrina Palmer is outlined above. The statement attributed to Mr Solly provides no support to the applicant. The statement attributed to Mr Gartner refers in vague terms to a broken ankle or some damage to one of the applicant's legs and it provides no guidance on the specific nature of the applicant`s injury or to the circumstances in which it may have occurred. In his letter (T16), Mr Vidler refers to the applicant as having twisted both ankles after he jumped down into a creek bed during their training. In the statement attributed to him by Ms Palmer, Mr Vidler referred to an injury to one ankle but denied that he was by the applicant's side or that he was "holding his hand at the time". That evidence is not supportive of the applicant's contention that it was Mr Vidler who "shouldered" him to the vehicle that transported him to the RAP but it is supportive of the applicant's evidence that he sustained some injury to an ankle.

30. The medical evidence relating to an injury to the applicant consists of the entries on the Attendance and Treatment Card (T4) completed in June 1970 and the entry on the Discharge History Questionnaire (T5) which was completed in 1971. In the former document, he is described as having twisted his right ankle nine weeks earlier, as having attended the RAP, but as not having seen an MO, which I understand to mean a medical officer. In the latter document, an injury to the right ankle during service is noted. Those entries do not refer to the manner in which the injury occurred or to the nature of the injury sustained. Medical evidence relating to the period subsequent to service reveals that the applicant has been treated for ankle and back problems and Dr Blakie, while referring to treatment for recurring sprains of the ankle in the early 1970s, was not able to access records of the treatment given to the applicant.

31. There is no report of the applicant's injury and no report of his attendance at an RAP at the time of his injury. Mr Clutterbuck submitted that the lack of an RAP record in the applicant's files means that the army must have lost that record. However, there is no evidence that such a record ever existed. The applicant has given an account of his dealings with the RAP attendant as involving a description of "severe ligament damage" to his ankles and to the provision of crutches. With that level of seriousness involved, it would be unusual for a record not to be taken. It would also be unusual for a person with that level of injury not to be referred to a more specific form of medical investigation and treatment. It was the applicant's evidence that this did not happen.

32. The absence of a record of the injury when it occurred, the vagueness of the recollections of the persons nominated by the applicant as being able to provide support for his claim and the long period of over 30 years between the injury and giving of notice of the injury through the lodgement of the Claim for Rehabilitation and Compensation in 2001 leave me satisfied that the respondent would be prejudiced if that claim was to be admitted for consideration in accordance with sub-section 16(1) of the 1930 Act. In that regard, I accept the evidence of Mr Ontong of the difficulties associated with investigating the circumstances surrounding the applicant's injury.

33. The finding of prejudice to the Commonwealth because of lack of timely notice is sufficient to dispose of the matter of late notice. However, I have considered the other matters in sub-section 16(1) of the 1930 Act. In addition to the matter of prejudice in respect of lateness of notice, sub-section 16(1) of the 1930 Act also makes reference to such lateness and also the lateness of the claim being "occasioned by mistake, absence from Australia or other reasonable cause". When the word "occasion" is used in that verbal sense, it imports a causal connection. The Concise Oxford Dictionary gives the meaning as :

"be the occasion or cause of, bring about esp. incidentally, cause (action etc., or person or thing to do)."

34. Accordingly, there must be a nexus between the mistake, absence from Australia or reasonable cause and the delay: see Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at 673, 674 and Re Harbutt and Department of Defence (1998) 51 ALD 159 at 163.

35. In relation to mistake, the Commonwealth compensation legislation distinguishes between ignorance and mistake, with only the latter being of relevance under the 1930 Act. The distinction between the two concepts was referred to in Telstra Corporation v Roycroft [1997] FCA 774 by North J who described the relevant authorities as establishing the following propositions:

"1. A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.

2. A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.

3. A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.

4. It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim."

36. His Honour went on to point out that there was a thin line between mistake and ignorance but said:

"If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant."

37. The evidence of the applicant in this case is that he was aware that he was able to make a claim and that this was the reason for indicating his intention to do so in the future on his Discharge History Questionnaire. He said that he believed that he would be able to make a claim in the future and the basis for this belief was advice given to him during his service by Sergeant Keogh. As noted above, attempts to obtain contact details of Sergeant Keogh have been unsuccessful. Mr Clark submitted that the applicant's evidence in relation to this belief was unreliable because it had only been mentioned by the applicant for the first time in his affidavit of 14 February 2003 (exhibit 2) and not referred to by him in the documentation that he provided to the respondent after he had been requested to provide a detailed statement explaining why he had not submitted his claim on, or soon after, the alleged incident (T11 at 19). I accept the correctness of Mr Clark's submission in that regard. In any event, even if it were the case that the applicant was advised about the making of a claim at any time in the future and was under the mistaken belief that such was the case, I do not accept that this was a reason for the lateness of the notice or claim. The applicant's evidence was that he gave no notice and made no claim as it did not suit him to do so as he had been in continuous employment throughout as a subcontract builder and had not needed to make a claim. This had nothing to do with any mistaken belief that he may have had about his right to make a claim and there is no causal association between any such mistake and the lateness of lodgement of his Claim for Rehabilitation and Compensation form.

38. I have noted above the submission by Mr Clutterbuck that there was mistake by the Commonwealth in losing the applicant's medical records. However, there is no evidence that the record was ever made and, even if it were, there is no evidence of a causal relationship between the absence of the record and the lateness of the applicant's notice and claim.

39. The issue of the applicant's absence from Australia does not arise in this case.

40. As to any other reasonable cause for the applicant's delay in giving notice or making a claim, Mr Clutterbuck submitted that the situation was analogous to that of the claimant in Luck and Comcare [1998] AATA 125. There the Tribunal found that delay was occasioned by reasonable cause because the claimant, who had injured his knee while serving in the RAAF in late 1955-1956, was provided with medical and hospital treatment which was fully paid for by the Commonwealth and continued to receive his wages. The Tribunal also found that the Commonwealth was on notice about the injury because it arranged for treatment and because the claimant's commanding officer was aware of the injury, having placed him on light duties. Mr Clark submitted that the applicant's situation was not akin to that of the claimant in Luck and that the more appropriate authority was Banks and Comcare (unreported Federal Court - Kiefel J - No QG 118 of 1994) where the decision to make no claim was made consciously because the claimant believed that he was able to manage and where Kiefel J said that it was difficult to accept that the proviso to sub-section 16(1) of the 1930 Act was intended to encompass a position where a person might later change their mind about making a claim because it then suited them to do so.

41. In Re Willis (above) at 675, the Tribunal held that the test for whether there was reasonable cause in a given situation was one "not judged by reference to some hypothetical man in hypothetical circumstances" but, rather, one that involved an objective test taking into account the subjective circumstances of the applicant. In Banks (above), Kiefel J said:

"The expression "reasonable cause" has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct: see Black v City of Melbourne [1963] VR 34 at 38; Portland Harbour Trust [1963] VR 25 at 28."

42. Here, I am satisfied that the applicant gave no notice and made no claim in relation to his injuries because it did not suit him to do so as he was able to manage both financially and physically and had been in continuous employment throughout as a subcontract builder. This involved him in waiting for more than 30 years before lodging his claim form. This is despite being treated by medical practitioners over the years for ankle and back problems and despite his seeking and gaining access to his service medical records some 14 years before the claim was made. I am satisfied that there was no reasonable cause for the applicant's delay.

43. In this case, the requirements of sub-section 16(1) of the 1930 Act have not been met. It follows that the applicant's claim is not to be considered. Accordingly, the decision under review must be affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed: Jan Lauriston

Administrative Assistant

Date/s of Hearing 26 & 27 February 2003 at Toowoomba

Date of Decision 7 March 2003 at Brisbane

For the Applicant Mr J Clutterbuck of Counsel

For the Respondent Mr C Clark of Counsel