Topping and Comcare [2003] AATA 41 (17 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 41

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/185

GENERAL ADMINISTRATIVE DIVISION )

Re WILLIAM TOPPING

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date 17 January 2003

Place Brisbane

Decision The Tribunal affirms the decision under review.

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

O Rinaudo

Member

CATCHWORDS

COMPENSATION - practice and procedure - time limits - time in which application for compensation to be made - whether applicant's failure to lodge claim within time was due to a mistake, absence from Australia or other reasonable cause

Safety, Rehabilitation and Compensation Act 1988

Commonwealth (Commonwealth Government Employees) Act 1971

Banks v Comcare [1996] FCA 382

Murray v Baxter (1914) 18 CLR 622

Re Roycroft and Telstra Corporation (AAT 11246, 24 May 1996)

Re Spear and Comcare (AAT 13061, 8 July 1998)

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

Commonwealth of Australia v Connors (1989) 86 ALR 247

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

REASONS FOR DECISION

17 January 2003 Mr O Rinaudo, Member

Decision under Review

1. The applicant has sought review of a decision of the respondent, made in January 2002, to reject his claim for compensation (under the Safety, Rehabilitation and Compensation Act 1988) on the basis that his claim was not submitted within the time allowed under s 54 of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"), and because the applicant had not satisfied the respondent that the failure to claim within time was due to ignorance, mistake or other reasonable cause.

Evidence

2. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1), and the following exhibit:

* Exhibit 2 Letter from the applicant to the Military Compensation and Rehabilitation Service annexing:

* Report of Dr Butler and medication record

* Report of Dr Harris

* Hospital Records

* Records from QML

* Records from Mater Hospital

* Records from Queensland Pathology

3. The Tribunal heard this matter on 26 August 2002 in Brisbane. Mr Topping attended the hearing, accompanied by his wife, and represented himself. Mr Clark of counsel appeared for the respondent.

4. The applicant was born on 2 July 1935 and joined the Armed Forces on 11 February 1955. The applicant was discharged from service on 24 June 1958 following repeated absenteeism without leave. During his service with the armed forces, the applicant was stationed at Warradale, Port Augusta, Renmark and Maralinga. The applicant claims that whilst at Maralinga in 1956 he was exposed to atomic testing.

5. On 16 March 2001, the applicant submitted a claim for compensation in relation to a chronic lung disability, which he stated had come to his attention in 1985. He first received treatment for the condition in 1985 and he contends that his disability was caused by his employment in the armed forces, particularly by his exposure to atomic testing at Maralinga.

6. The applicant explained to the Tribunal that, although he believed his lung condition was caused by his exposure to radiation, he had been unable to find a doctor who was willing to state that the condition had in fact been caused by his exposure to atomic testing at Maralinga. He also stated that he had suffered from skin cancers and cataracts which he believed were caused by the exposure to radiation. The applicant's wife, Mrs Topping, also stated that throughout their marriage she had had a number of miscarriages, however she had two successful pregnancies.

7. As a result of his lung condition, the applicant requires oxygen throughout the day. He stated that he sought compensation to assist him in meeting the costs of the oxygen. He informed the Tribunal that he was in receipt of age pension and was required to pay for the oxygen out of his pension.

8. Mrs Topping explained that in 1985, after the applicant's condition had been diagnosed, she contacted the Department of Veterans' Affairs seeking help for the applicant. She was told that as the applicant had not served overseas he was ineligible for a pension. She claimed that neither she nor her husband were aware that the applicant could be entitled to compensation. She stated that she and the applicant accepted the Department's advice and assumed they could not get any other help.

9. The applicant advised the Tribunal that he had been present at two atomic tests at Maralinga. At the first test he was stationed around six miles from the point of the explosion. For the second test, he was around ten miles away, with members of the press in a viewing area. He explained that the wind had shifted after the explosion, sending debris flying onto the roof of the shelter like hail. The respondent contends that the applicant was only at Maralinga for a brief period and that there are no official records of the applicant being in an area where he would have been exposed to above-threshold levels of radiation.

10. The applicant and his wife explained that recently they had been contacted by an association for members of the armed forces who had been exposed to atomic testing at Maralinga. The association had been trying to contact them for twenty-five years. They advised the applicant that he may be eligible for compensation. The applicant stated that the reason for the delay in lodging his claim for compensation was due to the fact that he did not realise he could claim for compensation, and also because his doctor was not prepared to say that his condition had been caused by his exposure to atomic testing in Maralinga.

11. The applicant stated that he had not been looking around for a doctor who would be prepared to say that his condition had been caused by radiation and that he had been seeing the same doctor for five to six years. He also stated that he would be prepared to undergo any tests that the respondent deemed necessary in evaluating this claim.

12. On 4 July 2001, the respondent disallowed the applicant's claim for compensation on the basis that the evidence failed to establish that the applicant's service was a contributing factor to the causation, aggravation, acceleration or recurrence of the disease. On review, on 30 January 2002, that decision was affirmed on the basis that the applicant had failed to comply with the requirements of s 54 of the 1971 Act.

Legislative Framework

13. The applicant first became aware of his lung condition in 1985. He attributes his condition to his exposure to atomic testing in 1956. As these dates pre-date the commencement of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act"), s 124(2)(c) is relevant in determining his claim for compensation. Section 124(2)(c) provides that a person is not entitled to compensation under the 1988 Act in respect of an injury suffered before the commencement of the Act unless compensation for such an injury was payable under the 1971 Act.

14. For compensation to be payable to the applicant under the 1971 Act, his claim must comply with s 54 of that Act. Section 54 states as follows:

"(1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.

(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is:

(a) in the case of a claim in relation to an injury to the claimant:

(i) the period of six months commencing on the day of the injury; or

(ii) if the claimant was not, immediately after the injury, aware that he had sustained an injury - the period of six months commencing on the day on which he became so aware; ...

(6) Where:

(a) a claim purporting to be a claim referred to in sub-section (1) of this section has been served on the Commissioner;

(b) the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with that sub-section."

15. Section 7(4) of the Safety, Rehabilitation and Compensation Act 1988 is relevant when determining the commencement date of the six-month notification period contained in s 54 of the 1971 Act. Section 7(4) provides:

"For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a) the employee first sought medical treatment for the disease, or aggravation; or

(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first."

16. On the basis of s 7(4), the respondent deemed the date of onset of the applicant's chronic lung disability as being 1 January 1985. Accordingly, the applicant, pursuant to s 54 of the 1971 Act, should have lodged a claim for compensation for the condition by 1 July 1985. However, he did not lodge his claim for compensation until 16 March 2001, nearly sixteen years later.

Issue

17. The issue to be decided in this case is whether the applicant has complied with s 54, that is, whether the applicant has made a claim for compensation under the Act within six months from the occurrence of the disease and, if not, whether the Commonwealth has suffered prejudice and the failure to make the claim within the period of six months was occasioned by the applicant's mistake, ignorance, absence from Australia or other reasonable cause.

Discussion of the Issues

18. The respondent contends that it will suffer prejudice if the applicant's claim for compensation is accepted. The respondent argues that a considerable amount of time has elapsed and that the applicant does not have a reasonable excuse for failing to lodged his claim (or notify them in writing of his claim) for chronic lung disease. The respondent further contends that there is insufficient medical evidence available between 1956 and 1985 to allow it to make a determination as to the applicant's claim.

19. In this case, the Tribunal finds that the applicant has not given notice of injury within six months from the occurrence of the condition. The applicant has otherwise failed to give notice of his condition. The Tribunal must therefore consider whether, as a result, the Commonwealth has been prejudiced and if the failure was occasioned by a mistake, ignorance or other reasonable cause. In this regard it is noted that there is no suggestion that the applicant was absent from Australia during any relevant period which would of itself have given rise to the failure to notify.

20. The applicant contends that his failure to comply with s 54 of the 1971 Act was caused by mistake, ignorance or another reasonable cause. The applicant stated he was not aware of the right to claim compensation for the condition as opposed to seeking assistance from the Department of Veterans' Affairs. His doctor had also been unwilling to state that his condition had been caused by his exposure to radiation at Maralinga. However, the applicant suggested that given the wider knowledge of the affects of radiation exposure, he would now be able to establish that his condition had been caused by that exposure.

21. In Re Roycroft and Telstra Corporation (AAT 11246, 24 May 1996), Senior Member Handley considered the meaning of ignorance in s 54 of the 1971 Act. The Senior Member found that, following the Federal Court decision in Commonwealth of Australia v Connors (1989) 86 ALR 247, if ignorance of a person's legal rights is the only basis to explain a delay in lodging a claim, the claim must fail. Therefore, the explanation of the applicant that he did not know that he could claim compensation is not a sufficient explanation for his delay in lodging his claim.

22. What then constitutes a "reasonable cause"? In Banks v Comcare [1996] FCA 382, the Federal Court stated that:

"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, of such a nature that it might be expected to delay the giving of the necessary notice or claim: see Black v City of South Melbourne [1953] VR 34, 38: Quinlivan v Portland Harbour Trust [1963] VR 25, 28."

23. It has been said that one applies the "test by looking at what was a reasonable cause of conduct for the plaintiff in the circumstances in which he found himself... It is an objective test taking into account the subjective circumstances of the plaintiff in each of those cases": Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 (which was applied in Re Spear and Comcare (AAT 13061, 8 July 1998)).

24. In the present case, there does not appear to be any explanation for the delay other than that the applicant misunderstood the difference between compensation and pensions from the Department of Veterans' Affairs, and the fact that he did not know of his rights to claim compensation. In the circumstances there does not appear to be any reasonable explanation of why the applicant did not make a claim within the time required.

25. The Tribunal notes that the provisos in s 54 are inclusive, that is, provided there is no prejudice and the failure occurred by mistake, ignorance, absence from Australia or other reasonable cause, the claim should be allowed. As the Tribunal has determined in this case that the failure was not caused by mistake, ignorance, absence from Australia or other reasonable cause, it is not strictly necessary to consider the issue of prejudice. However, for completeness the Tribunal considers this issue.

26. In considering the issue of prejudice, reference was had to the High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, particularly the decision of McHugh J, which is most instructive. That case dealt with application for exercise of the discretion contained in s 31 of the Limitation of Actions Act 1974 (Qld) with respect to a claim for personal injuries. When discussing the issue of prejudice, his Honour noted (at 551):

"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limits has been driven by the general perception that 'where there is delay the whole quality of justice deteriorates' (R v Lawrence [1982] AC 510 at 517 per Lord Halsham of St Marylebone LC). Sometimes the deterioration in quality is palpable as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [(1972) 407 US 514 at 532], 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed."

27. His Honour went on to note that the right of a citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. He said (at 552):

"Thus for many centuries the law has recognised the need to commence action promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuse of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties."

28. His Honour noted that it would be just as unfair to make shareholders, ratepayers or taxpayers of today ultimately liable for the wrongs of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. He noted (at 553):

"The final rationale for limitations periods is that the public interest requires that disputes be settled as quickly as possible."

29. In this case some forty-six years has elapsed since the applicant stated he suffered the disease while serving in the armed forces. Eighteen years have elapsed since the deemed date of injury in 1985.

30. Whilst there is documentation available to the respondent in respect of medical examinations of the applicant from 1985 onwards, clearly evidence that would assist the respondent in making a determination, pursuant to s 10 of the 1988 Act, that the accident arose out of or in the course of his employment, would now be very difficult to obtain. The respondent has not had an opportunity, and that opportunity has now passed, to enable it to properly determine precisely the cause and effect of the applicant's condition.

31. Accordingly, in the circumstances, the Tribunal is satisfied that the Commonwealth has suffered prejudice in this case. In the circumstances the Tribunal is satisfied that the applicant has not given the required notice as provided for in s 54 of the Compensation (Commonwealth Government Employees) Act 1971 and accordingly the applicant's claim for compensation cannot proceed as it is out of time.

32. The Tribunal therefore affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed: Sarah Oliver

Associate

Date of Hearing 26 August 2002

Date of Decision 17 January 2003

The Applicant Appeared in Person

Counsel for the Respondent Mr C Clark

Solicitor for the Respondent Ms C Houston, Blake Dawson Waldron