Bryant and Comcare [2003] AATA 79 (29 January 2003)

Last Updated: 29 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 79

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/344

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Raymond William Bryant

Applicant

And

Comcare

Respondent

DECISION

Tribunal

Ms S M Bullock, Senior Member Dr P D Lynch, Member

Date 29 January 2003

Place Sydney

Decision

The decision under review is affirmed.

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

Ms S M Bullock

Presiding Member

CATCHWORDS

COMPENSATION - Incapacity - Transitional provisions - Failure to give notice of injury as soon as practicable - Failure to make claim for compensation within specified period - Whether failures occasioned by mistake or other reasonable cause - Ignorance - Whether Commonwealth prejudiced by want or defect of notice

LEGISLATION

Commonwealth Employees' Compensation Act 1930 s16

Safety, Rehabilitation and Compensation Act 1988 ss4, 14, 16, 19, 24, 27, 124

AUTHORITIES

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

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

Telstra Corporation Limited v Roycroft (1997) 77 FCR 358

Secretary of the Department of Defence v Gorton (2000) 98 FCR 497

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

Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642

Commonwealth of Australia v Connors (1989) 86 ALR 247; (1989) 17 ALD 313

Re Studdert and Comcare (2001) 64 ALD 285; [2001] AATA 339

Re Loft and Comcare (1996) 52 ALD 606

REASONS FOR DECISION

29 January 2003

Ms S M Bullock, Senior Member Dr P D Lynch, Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Raymond William Bryant, of a reviewable decision dated 26 February 2001 (T22) made by the Respondent, Comcare. The reviewable decision is that Mr Bryant is not entitled to compensation for an injury to his left foot as the Respondent was unable to establish any nexus between the left foot injury and Mr Bryant's employment with the Royal Australian Air Force ("RAAF"). The reviewable decision affirmed a determination made on 3 May 1996 (T16).

2. It should be noted that an application for review made by Mr Bryant to the Tribunal in relation to the reviewable decision dated 21 December 2000 that Mr Bryant was not entitled to compensation for chronic ear ache was withdrawn by written notice dated 27 May 2002.

3. A Hearing was held in Sydney before the Tribunal on 27 May 2002. The Applicant was represented by Mr P Jones, Solicitor, and the Respondent was represented by Mr G Elliott of Counsel. Mr Bryant provided oral evidence to the Tribunal. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-22). The following documents were also taken into evidence.

Exhibit	Description	Date
A1	Statement of Mr R Bryant	20 February 2002
A2	Report by Professor P N Sambrook, Professor of Rheumatology, University of Sydney, Royal North Shore Hospital	19 September 2001
R1	Affidavit of Mr T J Postma, Solicitor, Phillips Fox	22 May 2002
R2	Report by Dr M J Morris, Orthopaedic Surgeon	20 July 2001
R3	Military Board Instructions	Various

ISSUES

4. The issues in this matter are:

(i) whether or not the failure of Mr Bryant to comply with time limits under the Commonwealth Employees' Compensation Act 1930 prevents him being paid compensation under the Safety, Rehabilitation and Compensation Act 1988; and if not,

(ii) whether or not Mr Bryant's left foot injury is causally related to his employment with the RAAF; and if so,

(ii) whether or not Mr Bryant is entitled to compensation, medical expenses, permanent impairment and non-economic loss under the provisions of the Safety, Rehabilitation and Compensation Act 1988.

LEGISLATION

5. A determination of this matter requires consideration of two pieces of legislation, namely:

* Commonwealth Employees' Compensation Act 1930 ("the 1930 Act")

* Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act")

6. Mr Bryant lodged his claim for compensation on 17 May 1995 (T14) in relation to injuries which occurred during his service with the RAAF which was between 1950 and 1956. Section 124 of the 1988 Act contains the transitional provisions and in the relevant circumstances an entitlement to compensation under the 1988 Act requires as a precondition entitlement to compensation under the 1930 Act. Section 124 of the 1988 Act effectively precludes compensation being paid under the 1988 Act to an employee during the currency of the 1930 Act where the claim does not comply with section 16 of the 1930 Act. Relevantly, section 124 (10) of the 1988 Act states:

"(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.

..."

7. Section 16 of the 1930 Act in 1955 when Mr Bryant's alleged injury occurred, stated:

" 16. - (1.) The commissioner shall not admit a claim for compensation under this Act for any injury unless notice of the accident has been served upon him as soon as practicable after it had 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 case of death - within six months after advice of the death has been received by the claimant:

Provided always that -

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

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

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

..."

8. If Mr Bryant is found by the Tribunal to comply with section 16 of the 1930 Act, then consideration must be given as to his meeting requirements under the 1988 Act.

9. Section 4 of the 1988 Act deals with interpretation and of specific relevance to this matter is the definition of injury contained within section 4(1) of the Act which states:

""injury" means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

..."

10. Section 14 of the 1988 Act deals with compensation for injuries.

11. Section 16 of the 1988 Act deals with compensation for medical and other expenses.

12. Section 19 of the 1988 Act deals with compensation for injuries resulting in incapacity.

13. Section 24 of the 1988 Act deals with compensation for injuries resulting in permanent impairment and section 27 of the 1988 Act with compensation of the non-economic loss.

EVIDENCE OF MR RAYMOND WILLIAM BRYANT

14. Mr Bryant told the Tribunal that he was born on 30 March 1932. Mr Bryant provided the Tribunal with a written statement signed on 20 February 2002 (Exhibit A1).

15. Mr Bryant had enlisted in the Air Force on 29 May 1950 for six years and was discharged on 14 June 1956 following the termination of the period of his enlistment (T12).

16. Mr Bryant explained to the Tribunal that in 1954, he was involved in a serious motor vehicle accident. At that time he was based at a RAAF base in Wagga Wagga. Mr Bryant was thrown from a vehicle in which he was travelling and apparently landed in the river. He was not the driver of this vehicle. When he woke up, he was in the RAAF Base Hospital in Richmond. Mr Bryant told the Tribunal that the first person he saw after the accident was Flight Lieutenant P Druin who was an officer in charge of the hospital. Flight Lieutenant Druin told Mr Bryant that:

"...if you claim compensation all money would have to be paid back to the Air Force." (Exhibit A1)

17. Mr Bryant stated that this advice "steered" him off claiming compensation. Mr Bryant stated that he confirmed Flight Lieutenant Druin's advice with the paymaster, Mr Thompson. Later in evidence, Mr Bryant stated that it may have been possible that Flight Lieutenant Druin was talking about medical expenses and not workers' compensation. From this accident, Mr Bryant sustained injuries to his right shoulder and arm. The right arm was in fact pulled out of its socket. Mr Bryant believed it took months for him to get better. He believed that following this motor vehicle accident, he saw a government psychiatrist perhaps once per week. Mr Bryant stated that he should have checked his entitlements more carefully in relation to the right shoulder injury.

18. Mr Bryant was next posted to Richmond 30 Squadron and continued his work as an Air Force fitter, which required him to undertake body work on various aircraft. In 1955, Mr Bryant was working on a Beaufighter aircraft when his left foot was run over by a tractor which was towing an aircraft. Mr Bryant told the Tribunal that he did not know exactly when this accident occurred and whether or not it was summer or winter. It occurred during the day and was at one end of an aircraft hangar. Mr Bryant stated that he can remember the event but not specific details. He did not recall preparing a written statement about this injury. Mr Bryant believed that a few of his work colleagues, including a Corporal and a Sergeant, may have lifted him up and carried him to hospital. Mr Bryant did not think that the Corporal and Sergeant, who he thinks were Sergeant Holden and Corporal Way, saw the accident. The only person who saw it would have been the tractor driver.

19. In hospital, Mr Bryant's left boot was taken off and it was full of blood. The bottom of his left foot underneath the toes and near his big toe was sutured. Mr Bryant did not recall whether he was days or weeks in hospital but he did recall being put on crutches. He also believes that x-rays of his foot were taken and noted that his left ankle was also injured. Mr Bryant further recalled that he may have had a metal plate on a plaster cast to help take the weight of his left foot. After an indeterminate period he left hospital but had to report each afternoon to be checked. He returned to work but in the stores area and often would ask for assistance because he was not as mobile as he had been.

20. Mr Bryant stated that he was subsequently relocated to Laverton for two or three months following the disbanding of 30 Squadron. He told the Tribunal that he was still undertaking light work. He was unable to undertake heavy work because of his right shoulder and left foot injury. Whilst still in the RAAF, Mr Bryant stated that he had difficulty walking up the steps of a ladder. Mr Bryant was discharged from Laverton. His evidence was that he was told he would probably have been medically retired, though he acknowledged that he was discharged at the normal time because of the expiration of his enlistment period.

21. Just prior to discharge, Mr Bryant attended a number of discharge medicals which he stated he believed were not conducted by a qualified medical officer, but by a student. Mr Bryant told the Tribunal that he based his belief on a conversation he had had with someone on the veranda of the establishment where he had attended his medical examination. Mr Bryant did not recall who the person was with whom he had had this conversation. In any event, Mr Bryant was questioned by this person purporting to be a medical officer and was examined. Furthermore, Mr Bryant stated that he filled out certain forms at this time, as did the examining officer. Mr Bryant stated that he did not see all of the responses made by the examining officer. Mr Bryant stated that the examining officer, who he believed to be a medical student from the City of Sydney Squadron, did not seem very interested in Mr Bryant and was in a hurry. Mr Bryant stripped during the medical examination and showed the examining officer his left foot and ankle, amongst other medical problems. Mr Bryant did not know anything about the Medical Board report reference to an injury to his right foot. This was new to him (T11, p28). In all, Mr Bryant recalls signing a form and recalled the discharge medical statement of June 1956 (T6). No one said anything to him about compensation.

22. Concerning compensation in 1954 after the motor vehicle accident, Mr Bryant did not think that he could claim. He was told that he would have to repay medical costs. In general though, Mr Bryant stated that he was in a daze for a long time after the 1954 injury. He was not sure he knew if compensation would be payable to him if he was injured at work. In relation to the injury, the subject of this application for review, Mr Bryant further stated in evidence that he could not recall what his state of mind was six months after the 1955 accident as he could not fundamentally recall when the 1955 accident had occurred. Mr Bryant had subsequently obtained information that some of his service papers were not able to be located, but he was not aware in 1956 that the papers to do with this 1955 incident were unavailable. He does not understand why there are no medical reports about his left foot. It was years later that Mr Bryant in fact found out that there was a difficulty locating his medical papers.

23. In the 1950s Mr Bryant was unsure but stated that he probably knew of fellow servicemen/women receiving weekly payments when they were off work.

24. Just after service, Mr Bryant consulted Dr Dick, General Practitioner, in Balgowlah, NSW. Mr Bryant believed that Dr Dick was going to help him in relation to his injuries, with the Department of Defence.

25. In 1957, Mr Bryant contacted a Mr Fraser, and recalled that he had something to do with the Defence Department at the Dymocks building in Sydney. Mr Bryant stated that he received and completed some forms. Most of his dealings with Mr Fraser were on the phone. When he went to the Department of Defence some time later, Mr Fraser was no longer working there. He received a letter from a female officer from the Department of Defence and arrangements were made to have an x-ray of his left foot, he thought in 1960 or thereabouts. When nothing happened as a result of his enquiries, Mr Bryant stated that he called the Repatriation Department at the Grace building in Sydney and dealt with various officers between 1960 and 1968. Mr Bryant stated that during this period he never let the issue of his left foot go. Mr Bryant does not recall any documents from the Repatriation Department or the Department of Defence and only recently received advice via a booklet sent to him. Mr Bryant stated that whenever he sought help from doctors they would send him to the Returned Services League ("RSL") who would then send him on to the Repatriation Commission or the Department of Defence.

26. Specifically in relation to his dealings in 1957 with Mr Fraser at the Department of Defence, Mr Bryant stated that Mr Fraser's advice was that he would deal with the right shoulder injuries first and then would later deal with the left foot. It was a case of dealing with one issue at a time, Mr Bryant stated. Mr Bryant stated that subsequently his right shoulder was accepted for medical expenses for the rest of his life.

27. After the right shoulder issue was dealt with no one would help Mr Bryant with the left foot matter. His papers were then lost and subsequently found, Mr Bryant believes, in 1983. He was assisted during this process by people in the Department of Veterans' Affairs and people from the Repatriation Department. From 1960 onwards, Mr Bryant believed he approached the Repatriation Department every 12 months and possibly on 50 occasions. All he was told on each occasion was that he would be informed. He believed that the form he filled out in 1957 was an attempt by him to obtain assistance for his left foot and ankle and his eyes. He stated that he always got the same answer and that because he had not gone overseas to serve in the RAAF, then there was no help available to him.

28. Since 1955, Mr Bryant's left foot has troubled him. He is unable to sustain weight on the left foot for long. The whole of Mr Bryant's left foot burns and throbs and he is always pleased to take his shoes off. At times these symptoms worsen and he must raise his left foot and rest it. Mr Bryant also has to wear casual shoes for ease of comfort.

29. Mr Bryant likes to garden but because of his left foot condition has to be very careful and restricts this activity. He is unable to climb a ladder but is able to walk, as long as he takes breaks. Mr Bryant now plays golf and tries to complete 18 holes. However, for 12 years after the left foot injury, Mr Bryant did not play golf because of his left foot problems. Mr Bryant stated that he takes a great deal of pain-killing medication. He provided a list of other medications which he takes, including:

* "Epilim"; for migraine headaches from which Mr Bryant has suffered since 1954;

* "Panamax"; taking up to eight per day since 1954/1955 mainly for right shoulder pain but also for the left foot on occasions. It should be noted in relation to pain, that Mr Bryant attends the North Shore Pain Clinic and has been doing so for eight years;

* "Lasix"; a diuretic

* "Celebrex"; a non-steroidal anti-inflammatory, though this medication is only taken when necessary as it affects Mr Bryant's stomach.

Mr Bryant has other medical conditions, including kidney stones and hiatus hernia.

30. After discharge from the RAAF, Mr Bryant worked as a full-time carpenter who continued to experience trouble with his right shoulder and also with his left ankle and foot. In 1983, aged 57 years, Mr Bryant retired. At that time he had right shoulder problems and carpal tunnel syndrome in the left hand. Mr Bryant told the Tribunal that his body could not take working any more.

EVIDENCE OF PROFESSOR P N SAMBROOK, PROFESSOR OF RHEUMATOLOGY, UNIVERSITY OF SYDNEY, ROYAL NORTH SHORE HOSPITAL

31. Professor Sambook provided a report dated 19 September 2001 (Exhibit A2). Professor Sambrook examined Mr Bryant on 13 September 2001. Professor Sambrook noted Mr Bryant provided a history of having served in the RAAF as a fitter between 1949 and 1956.

32. Professor Sambrook noted an injury to Mr Bryant's left foot and ankle when this lower limb was run over by a tractor towing an aircraft. Professor Sambrook noted that the date of the injury is unclear. Mr Bryant recalled that the main injury was a "crush injury" and while x-rays were taken, Mr Bryant was uncertain as to the result. His history was also that he remained in hospital for several days and was off work for approximately two weeks thereafter.

33. Professor Sambrook noted that following the injury, Mr Bryant recalled that the left foot and ankle were discoloured and an odd shape. He complained of intermittent pain in that region. The pain has gradually increased in severity and frequency over the years. The current complaint from Mr Bryant in relation to the left foot is of burning pain across the left forefoot as well as a dull ache across the ankle. This can occur at rest but is worst on weight bearing. The burning in the left foot is most pronounced in the great toe and second toe beside it.

34. Professor Sambrook noted an x-ray report dated 12 June 1956 which concluded there was "no boney abnormality".. The diagnosis provided by Professor Sambrook is that Mr Bryant suffered a crush injury to the left foot. A report provided by Dr M J Morris, Orthopaedic Surgeon, dated 20 July 2001, accepted that there had been a crush injury with subsequent nerve entrapment due to scarring but regarded the overall degree of disability as relatively minor.

35. Professor Sambrook noted that there is no other history to explain the clinical findings and the left foot injury is recorded in the final discharge papers even though hospital admission notes are missing. Professor Sambrook considered that the findings in relation to the left foot are entirely attributable to the tractor incident during Mr Bryant's RAAF service.

36. In terms of percentage loss, Professor Sambrook opined that Mr Bryant had a 20 per cent loss of use of the left ankle and foot as a consequence of his injury. Mr Bryant has difficulty playing golf because of his left foot and ankle problem which affect his balance. Mr Bryant was also noted to have difficulty mobilising any distance, requiring rests after a certain period of time. Furthermore, Professor Sambrook noted that Mr Bryant is having increasing difficulty in finding footwear for his left foot, has trouble going up and down slopes and using a ladder because of this left foot problem. These restrictions are consistent with Mr Bryant's clinical presentation, Professor Sambrook concluded.

EVIDENCE OF DR M J MORRIS, ORTHOPAEDIC SURGEON

37. Dr Morris provided a report, dated 20 July 2001 (Exhibit R2). Dr Morris also examined Mr Bryant on 20 July 2001. Dr Morris noted a history of Mr Bryant's left foot being run over by a tractor. X-rays were taken, however Dr Morris noted that no results are available and therefore it is difficult to say whether any fractures were demonstrated. Dr Morris noted Mr Bryant's description of the front part of his left foot being squashed and sutured and looking flattened. Mr Bryant had two weeks off work and believes that he was restricted to light duties some months before resuming full duties as a fitter. Since the injury, Mr Bryant reported to Dr Morris that he has left foot problems. In particular, he is caused severe pain if he stands on a ladder, also experiencing this in the arch of the left foot, the toes and particularly the left great toe. When Mr Bryant walks, he experiences pain in his left foot and a burning sensation in the great toe. Dr Morris noted that Mr Bryant may have seen Dr Dick of Balgowlah in the 1960s with no specialist referrals. He also saw Dr D Williams in Manly, possibly in 1958, then again, nothing particular was undertaken. Mr Bryant reported to Dr Morris that in 1966, when he was working for the Department of Education, he may have consulted a local doctor about foot pain, but again no specific treatment appears to have been undertaken.

38. Dr Morris noted from service records that there was a reference in 1952 to a sprain of the right foot. There is also a reference to clinical complaints of pain in the distal one third of the left tibia due to the left foot being run over. Dr Morris also noted Medical Board forms referring to the left tibia with comments that there was no substantiation in the medical documents for the contention that Mr Bryant's left foot was run over by a tractor in 1955. A recent x-ray report by Dr Tarrant noted on 9 March 1995 that there was no abnormality of the left foot.

39. Dr Morris noted that Mr Bryant walks normally and on clinical examination the left great toe and to an extent the left forefoot appear somewhat thickened and pigmented when compared to the right. This would be consistent with the effects of an old crush injury, Dr Morris opined. Dr Morris noted that examination was hampered by what he took to be an over-reaction to light palpation, particularly around the left toe. Beneath the left toe there is a well healed laceration approximately one inch in length which Mr Bryant believes is the laceration resulting from sutures at the time his foot was crushed.

40. The diagnosis provided by Dr Morris is that the left forefoot and great toe may have been subject to a crush injury sometime in the past and there is a laceration consistent with this description. Dr Morris further opined that Mr Bryant may have suffered some form of nerve entrapment in the scarring consequent upon the injury and this conceivably would account for altered sensation and apparent hypersensitivity in the left great toe. There did not appear to be any radiological or clinical evidence of any other bony or joint problem. Dr Morris noted that the description of disability in the left foot needs to be taken in conjunction with the fact that Mr Bryant worked as a carpenter for many years, subsequent to the injury, and was occupied in full-time duties both in the RAAF and later. Dr Morris concluded that the injury would not represent a serious disability to him, though he may suffer some discomfort in the left great toe and the left forefoot. If it was accepted that Mr Bryant had suffered a crush injury, then some degree of neurological impairment and dysaesthesia would be a believable consequence. Given Mr Bryant's work history it seems to Dr Morris that the injury was of a relatively minor nature. Dr Morris accepted that Mr Bryant probably has had an injury such as he describes to the left foot arising out of his employment and this condition is permanent. Dr Morris did not consider that any medical treatment was likely to be relevant and any further medical investigations would not be likely to be of any particular value.

SUBMISSIONS

41. Mr Jones submitted that while Mr Bryant has a good memory for names, he does not have a good memory for other details and events. In Mr Jones' submission, there could be no suggestion that Mr Bryant was untruthful.

42. Turning to the issue of the notice of injury required under section 16 of the 1930 Act, a notice of injury is required as soon as practicable after the injury. Mr Jones acknowledged that Mr Bryant simply attending for medical treatment is insufficient to meet the requirements of being a notice, but contended that Mr Bryant did more than this. In this regard, Mr Jones submitted that two senior RAAF officers knew either at the time of the injury or very soon afterward of the injury. If that was not accepted, then notice was served no later than at the discharge medical which occurred probably six months after the injury. If this is accepted then Mr Jones submitted that there is no prejudice to the Respondent at that time. The Applicant also submitted that there had been a mistake. Relevant to this contention is the fact that Mr Bryant had a serious motor vehicle accident in 1954. Mr Bryant was hospitalised and was dazed and this in fact could have some impact on his ability to recall any advice about such matters. Mr Bryant was given advice by Flight Lieutenant Druin that caused him to believe that if he claimed for medical expenses he would have to repay it. At that time, Mr Jones submitted, Mr Bryant would not have made the differentiation between claims for medical expenses and weekly compensation payments, and that was his evidence.

43. In terms of Mr Bryant making a claim for compensation, Mr Jones acknowledged that it was clear that he did not lodge a claim within six months of the injury. The earliest he could have lodged it is in 1957, on his evidence, when he discussed such matters with a Mr Fraser in, what Mr Bryant described as, the Department of Defence. Mr Jones acknowledged however that there were also difficulties with whether or not in 1957 a formal claim was lodged. Certainly, Mr Bryant lodged a claim in 1995. Mr Jones submitted that the reason for the delay in lodging the claim was Mr Bryant's state of mind from the time he injured his foot and for six months afterwards. He was unable to tell the Tribunal at Hearing what his state of mind was, but nevertheless, Mr Jones submitted that it could be reasonably inferred from what Mr Bryant told the Tribunal about the impact of the 1954 injury and what had been told to him by a senior officer at the time, that in 1955 when looking at similar issues, Mr Bryant may have been mistaken. It seemed also to Mr Bryant that from the advice given to him by the paymaster, Mr Thompson, he was confirmed in his belief that compensation was not an option for him. This is clearly more than ignorance, Mr Jones submitted. This is significant as the 1930 Act does not provide for a state of ignorance of possible claimants.

44. Mr Jones referred the Tribunal to Telstra Corporation Limited v Roycroft (1997) 77 FCR 358 which considered the difference between ignorance and a mistake. North J noted:

"As these authorities show, there is a thin line between "mistake" and "ignorance".. If a person acts on the basis of the knowledge of the Act and that knowledge is wrong, or the facts upon the 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. The distinction between ignorance and mistake requires very careful attention to the evidence as Keely J pointed out in Connors [Commonwealth of Australia v Connors (1989) 86 ALR 247; (1989) 17 ALD 313]".

45. Mr Jones contended that the delay in making a claim was therefore occasioned by mistake in that Mr Bryant was provided with incorrect information about compensation rights. Furthermore, this mistake was compounded because of Mr Bryant's state of mind and not thinking clearly following the 1954 injury, again compounded by the 1955 injury. Mr Bryant had stated in evidence that he did not think he could claim compensation in 1955 as a consequence of his earlier conversation with Flight Lieutenant Druin. While Mr Bryant had later conceded that he was ignorant, Mr Jones submitted that the Tribunal should look at all of the evidence. In this regard, while Mr Bryant may have been ignorant, the reason for the delay does not stop there because there are a combination of factors which includes the type of person that Mr Bryant is, not wanting to make waves, his degree of ignorance, the incorrect information provided to him then, in combination with a mistaken belief. Mr Jones submitted that Mr Bryant is not ignorant alone, but there is a coalescence of other factors leading to the delay, either in providing a notice and/or a claim. It is sufficient with this combination of factors, Mr Jones concluded, to help Mr Bryant over the legislative hurdle contained within section 16 of the 1930 Act.

46. If the Tribunal accepted that the 1957 correspondence between Mr Bryant and Mr Fraser constituted notice, then a delay in 18 months or two and a half years is not so prejudicial to the Respondent. Mr Jones acknowledged however that one difficulty is that it is not certain when the injury occurred.

47. If the Tribunal concluded that Mr Bryant was able to satisfy the section 16 requirements of the 1930 Act, then Mr Bryant's evidence, in addition to the reports of Professor Sambrook and Dr Morris, indicated that the left foot injury suffered by Mr Bryant arose out of his employment and thus Mr Bryant is eligible for compensation specifically in the form of medical expenses, permanent impairment at 20 per cent whole body impairment in addition to non-economic loss.

48. Mr Elliott for the Respondent submitted that the claim Mr Bryant made in 1995 concerning an injury in 1955, takes the matter for consideration under the 1930 Act. Mr Elliott referred the Tribunal to Secretary of the Department of Defence v Gorton (2000) 98 FCR 497. Mr Elliott submitted that the legislation contemplates strict compliance with a notice of injury as soon as possible or practicable after an injury. There are a number of provisos which if met, might allow the want or defect in a notice to be excused. The want or defect or inaccuracy in a notice shall not prevent consideration of the claim by the Commissioner at that time, if it was found that the Commonwealth was not prejudiced by that want, defect or inaccuracy or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause. Mr Elliott submitted that the effect of section 16 of the 1930 Act was discussed in Re Muras and Department of Defence (1998) 52 ALD 579 at 580..

49. Mr Elliott noted that the words in section 16 of the 1930 Act "as soon as practicable" have a plain meaning. Merely telling a superior or attending a medical centre is not the notice required by the Act as discussed in Re Muras and Department of Defence (supra). If notice is not given promptly, when the Applicant is in a position to do so, then prima facie the matter is not admissible unless a proper explanation is forthcoming under the provisos to show either that the Commonwealth is not prejudiced or that there was a mistake, absence from Australia or other reasonable cause. The notice provision does not contemplate a conversation being a formal notification. The purpose of having a notice is to provide the Commonwealth with the opportunity to investigate the injury. Furthermore, section 16 of the 1930 Act plainly states that there must be in simple language information as to the name and address of the person injured, a statement in ordinary language of the cause of the injury and the date at which the accident happened. Recording information on the discharge medical is not notice, nor is a conversation with Flight Lieutenant Druin or indeed Mr Thompson. Furthermore, any submission that the discussion with Mr Fraser of the Department of Defence in 1957 constitutes either a notice or a claim is wanting because there is no evidence to substantiate this and certainly, while Mr Bryant asserts that he discussed the left foot injury with Mr Fraser, it is the right shoulder injury that seems to have been discussed and which resulted in medical expenses being paid.

50. In relation to the issue of prejudice to the Commonwealth, even if it was considered that a notice had been given in 1957, there is still a difficulty in the lapse of two years, or, if 1995 is taken as the date of notice. In relation to the issue of prejudice, Mr Elliott noted that the affidavit provided by Mr T J Postma, Solicitor, Phillips Fox, detailed several areas of prejudice which now confront the Respondent (Exhibit R1). In this regard, Mr Elliott noted that there is delay some 40 years since the 1955 injury and memories are likely to be affected, as was apparent in Mr Bryant's evidence. The exact time of the incident and its circumstances are unknown and it is now impossible to investigate the circumstances of the 1955 accident. The doctors who treated Mr Bryant at that time are unknown and although Mr Bryant's medical records from his service have been located, they contain no mention of treatment regimes, hospitalisation, witness statements and the like. There are no medical reports which have been provided by the Applicant. Therefore, there are no records between 1956 and 1995 available to explain how the condition might have changed over the years. Mr Postma's affidavit indicates that witnesses have been unable to be located. Alleged conversations cannot be verified at the time of the incident or subsequently. Furthermore, it is difficult to locate the officers involved with Mr Bryant's discharge to verify what he was told or what he stated at the time. Furthermore, the Respondent has lost the opportunity of having the Applicant examined, and of determining if appropriate approved rehabilitative or treatment options may have reduced any impairment, Mr Elliott submitted.

51. Mr Elliott submitted that in Re Muras and Department of Defence (supra) there was no suggestion in the medical documents that there was a work-related injury. It was found by Deputy President McMahon that for Mr Muras to be treated at a naval hospital was not a passive compliance with the obligation to give a statutory notice. It was further noted that the purpose of the notice is to enable the Commonwealth to investigate the circumstances of the injury after this occurs. Mr Elliott submitted that at no stage did Mr Bryant tell anyone the address or date and time of the injury therefore notice was not provided in the terms of the legislation.

52. Turning to the issue of a claim, there are provisos in relation to that requirement under section 16 of the 1930 Act. The claim must be made within six months of the injury but if not, then this delay can be excused if the failure was occasioned by mistake, absence from Australia or other reasonable cause.

53. Mr Elliott argued that it could not be submitted that Mr Bryant's condition deteriorated and that Mr Bryant was unable to pursue a claim because of the injury. The condition has remained virtually the same for 40 years, Mr Elliott submitted. Mr Bryant was stabilised on light duties after hospitalisation then went back to full-time duties prior to discharge. To be excused, any delay in making the claim within the required time limit, must show a direct relationship to the mistake or other reasonable cause. In Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642 at paragraph 32, Moore J noted that there must be a direct relationship between the failure of an individual to make a claim and the reasonable cause or mistake.

54. Referring to the discharge medical, Mr Elliott submitted that Mr Bryant's evidence was that he was not aware of the right foot injury and was not sure whether this happened or was a mistake. Another issue being proffered as a mistake is the Department's loss of Mr Bryant's documents. Mr Elliott submitted that Mr Bryant's evidence was that he was not aware these records were missing for some years after the 1955 incident. Accordingly, Mr Bryant was not prevented within the statutory timeframe from claiming by the loss of any documents.

55. Mr Elliott referred to there being no proper assessment or examination on discharge, this having been completed by a medical student. Mr Bryant's evidence of this was a conversation he had on the veranda with an unidentified person. It is not possible from that, to conclude that the examination was carried out by a student. This is hearsay and not able to be tested by the Respondent. Even if it were true, that the medical examination of Mr Bryant at discharge was undertaken by a medical student, Mr Elliott asked what is the direct causal relationship between who examined him and him not submitting his claim within the six month timeframe.

56. Mr Elliott noted that the main submission by the Applicant concerns Mr Bryant being told in 1954 in relation to an earlier injury that if he claimed compensation or medical expenses then he would have to pay them. This information arose out of the 1954 accident and therefore, Mr Elliott submitted could not be related to the different circumstances of the 1955 injury. Even if the advice given to Mr Bryant was incorrect or if Mr Bryant had misunderstood the advice, he still has to get over the hurdle of his state of knowledge six months after the injury. A fundamental difficulty is that the six month period cannot be identified as it is unknown, either from Mr Bryant's oral evidence or from the documents, when this injury occurred. Mr Elliott also noted Mr Bryant's evidence that he is not a person to make waves and that he was probably ignorant of issues related to compensation. Therefore, Mr Elliott submitted that the delay and failure to claim within six months of the injury could not be explained on all of the evidence in terms of a mistake or other reasonable cause.

57. There are also some difficulties in the consistency of the evidence in that it is difficult for Mr Bryant to say that in 1955 he was ignorant, given that Mr Bryant was provided in 1954 with advice concerning compensation matters. If however, as Mr Bryant asserted, he was ignorant, then reference should be made to Commonwealth of Australia v Connors (supra) in which Northrop and Ryan JJ held that ignorance of one's rights to claim compensation does not amount to a reasonable cause. Ignorance does not also amount to a mistake as was discussed in Re Muras and Department of Defence (supra).

58. Mr Elliott noted that the evidence does not show that the Respondent owed a duty to advise Mr Bryant of his compensation requirements. In Re Studdert and Comcare [2001] AATA 339; (2001) 64 ALD 285 at 287 the Tribunal found that Mr Studdert had a similar belief to that of the Applicant in Re Loft and Comcare (1996) 52 ALD 606 based on certain army instructions. The Tribunal in those matters found that these instructions were to the effect that the army would advise the Applicant of his compensation rights. In Mr Bryant's case, his statement makes no reference to him believing that the RAAF owed him a duty to advise him about his compensation rights and no evidence was provided that instructions existed in the RAAF that required him to be advised of his rights. The cases Re Studdert and Comcare (supra) and Re Loft and Comcare (supra) do not provide any evidence that the Army's instructions applied to RAAF personnel, Mr Elliott concluded.

FINDINGS

59. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, legislation and case law.

60. Mr Bryant provided evidence to the best of his ability, being required to recall events some 47 years ago.

61. In this matter, Mr Bryant made a claim for compensation on 17 May 1995 (T14) and a subsequent claim lodged on 23 November 1998 (T18). The 1995 claim refers to an injury to Mr Bryant's left foot when a tractor ran over that lower limb. The claim form does not detail when this injury occurred and Mr Bryant's evidence is that he thought that the injury occurred sometime in 1955 when he was serving at the RAAF Base at Richmond but could not recall exactly when. The 1998 claim indicates that the injury occurred to the left foot in 1950. These differing dates of 1950 and 1955 indeed confirm Mr Bryant's evidence that he is not exactly sure when the injury occurred. Mr Bryant believed that fellow worker's Sergeant Holden and Corporal Way may have been present in the same hangar, but he did not think that they actually witnessed the occurrence of the injury. These particular officers have not been able to be located.

62. In a medical examination prior to discharge on 5 June 1956, which involved examination by a medical officer and the completion of forms by both Mr Bryant and that medical officer, who Mr Bryant claims to have been a student, there is a notation that during service Mr Bryant's left foot was injured (T6). Also on 5 June 1956, a "Final Medical Board" report form was completed and again there is a notation by Mr Bryant that his left foot was run over by a tractor (T7). A further medical examination was completed on 7 June 1956, in which the medical officer noted "pain on walking region distal 1/3 L. tibia" (T8). It is further noted in a "Report of Medical Officer" that while Mr Bryant had reported an injury to his left foot there was no substantiation for this in the medical documents (T9). On 27 June 1956 an "Opinion of Medical Board" report noted an injury to the right foot but nothing to the left foot (T11).

63. Mr Bryant's evidence is that during the course of his service in 1954, following a motor vehicle accident, he was told that if he claimed medical expenses for his injury he would have to repay that money. That particular piece of advice exercised his mind when he injured his left foot at sometime in 1955. It is Mr Bryant's contention that he did not either put a notice in of the injury or make a claim because he was operating on the mistaken belief that it would do him no good to submit such a claim and he also in evidence stated that he was ignorant of his rights in relation to workers' compensation.

64. Then in 1957, Mr Bryant stated that he approached the Department of Defence and Mr Fraser sent him the form which he completed of all the injuries worrying him at the time, being his right arm and shoulder, his left ankle and foot. As a consequence of this he was accepted for medical expenses for the rest of his life for the right shoulder but nothing transpired in relation to the left foot. All Mr Bryant recalls is that Mr Fraser stated that they would deal with one medical condition at a time, the right shoulder being the first. This evidence must be considered in light of Mr Bryant's letter accompanying his 1995 claim when he stated:

"I regret the woefully belated submission of the claim for compensation for acceptance of the service caused disability, but no one at the time in the Air Force seemed to know anything about such matters as compensation and it is only after discussing my case with my Regular Coordinator R.D.F.W.A that I discovered that I could at least make an approach for compensation of this claim."

This statement seems at odds with Mr Bryant's evidence to the Tribunal that he knew of the possibility of claiming, at least in 1957, and possibly earlier in 1954 when he chose not to act in relation to claiming compensation on advice. He did however, claim compensation at sometime in 1957 and it is noted from his statement of 20 February 2002 (Exhibit A1) that in 1957 or shortly afterwards there was a court case or a decision from the Defence Department which covered him for all of his future medical costs for his right shoulder. The difficulty in this matter is the evidence. It is difficult to make conclusions or inferences when it is not known whether or not the injury to the left foot occurred in 1950 or 1955. It is also not known whether or not in 1954, 1955 or 1957 Mr Bryant had knowledge of his compensation rights. The fact that something occurred in 1957 concerning the right shoulder injury arising out of his conversation with Mr Fraser would indicate that he did have certain knowledge of such matters.

65. Mr Bryant's further evidence is that he continued to make contact with either general practitioners, RSL welfare officers, the Department of Defence, the Repatriation Department and the Department of Veterans' Affairs. While Mr Bryant's evidence is therefore that he never stopped trying to obtain compensation, the lack of any substantiating evidence, either witnesses or documentary evidence, provides further difficulties in reaching a determination in this matter. Courts and Tribunals may be called upon to make inferences from time to time in relation to the matters before them. This must not however, allow Courts and Tribunals to make up facts or to make inferences beyond that allowed in all reality by the material available. The Tribunal finds that the delay in making a claim from 1955 until 1995 is not reasonably explained on the evidence available to the Tribunal.

66. Turning to the legislative requirements, specifically subsection 124(10) of the 1988 Act precludes any compensation being paid under the 1988 Act, under which Mr Bryant claimed, if the injury the subject of claim occurred when the 1930 Act was in force and compensation would not be payable under the 1930 Act. This causes consideration of Mr Bryant's claim for compensation to fall under section 16 of the 1930 Act. It is required by subsection 16(1) of the 1930 Act that Mr Bryant give notice of the incident or accident as soon as practicable after the injury. The notice must be in ordinary language as to the cause of the injury and the date and time. There are a number of difficulties with Mr Bryant's circumstances meeting this requirement. It is true that Mr Bryant's left foot injury is recorded in a number of pre-discharge medical reports. The date of the injury is not provided, nor is there any record of the treatment undertaken or any witness statements or verification by treating medical practitioners. One medical report notes that there are no documents to record the injury and substantiate it. There is a record of the right foot injury which Mr Bryant had not initially recalled.

67. There was no submission by the Applicant that the RAAF instructions were not followed although the contemporary regulations were tendered by the Respondent (Exhibit R3). In Re Loft and Comcare (supra) there was consideration of military regulations current at the time of Mr Lofts' injury. While in Mr Bryant's case the Military Board Instructions outlined responsibilities for reporting of injuries and completing of forms detailing statements by the claimant, witnesses, officers in charge, no such documents are apparent in relation to Mr Bryant. It is quite possible on Mr Bryant's evidence, that in line with his decision in 1954 not to pursue any compensation or medical expenses, that while he may have been offered that in 1955, he chose not to complete any forms. This of course, is speculation. Similarly, it would be speculation to infer that the RAAF was negligent in not providing Mr Bryant with any such forms. The Tribunal is simply unaware of what the true circumstances are and Mr Bryant's evidence, because of his lack of recall, does not allow the Tribunal to make an inference one way or the other because of the overwhelming gaps. While it may be possible in some circumstances to infer that the RAAF has not fulfilled its obligations, given the evidence in Mr Bryant's case, with no contemporaneous reports of hospitalisation, reports from doctors or witnesses or the like and Mr Bryant's poor recall of what has happened the Tribunal is unable to infer a realistic factual scenario.

68. The Applicant argued that the medical reports prior to discharge could be considered as notices. The difficulty is that we do not know when the injury was, indeed was it in 1950 or 1955. Furthermore, those discharge medicals do not provide a notice in the terms contemplated by section 16, that is in the ordinary language to provide time and date of the injury as a requirement. It is the job of a notice, in the Tribunal's view, to put the Commonwealth on notice of a possible impending claim. As was noted in Re Muras and Department of Defence (supra), the mere fact that Mr Muras was treated in a naval hospital or in this case at the RAAF Base Hospital at Richmond, is not a passive compliance with the requirement to provide a statutory notice. The purpose of the notice is to enable the Commonwealth to investigate accidents as soon as possible.

69. Considering the evidence in relation to discussions in 1957 between Department of Defence personnel and Mr Bryant, the Tribunal finds that this cannot be considered a notice as it does not fulfil the requirements, there is no evidence to substantiate that the 1957 conversation which resulted in medical expenses for the right shoulder ever included any discussion about the left foot. Even if that 1957 discussion could be considered a notice, which the Tribunal does not think is the case, the Tribunal is strongly of the view that the Commonwealth has been very severely prejudiced by the want of that notice. In this regard, there is no documentary material available to the Respondent to assist with the investigation of this claim. Real attempts have been made to locate people mentioned by Mr Bryant who may have some knowledge of his left foot injury but those attempts have been to no avail. Mr Bryant's memory of the accident and its time is incomplete and accordingly further hampers the Respondent in trying to investigate this matter. Furthermore, the absence of detail in terms of treating medical practitioners and the type of treatment given has further prejudiced the Commonwealth in the consideration of Mr Bryant's claim.

70. Could the want of notice or defect in the notice be occasioned by mistake or some other reasonable cause, the Tribunal considers that neither of these provisos can be made out. The advice provided to Mr Bryant in 1954, whether mistaken or misunderstood by Mr Bryant in its application to the failure to provide notice in 1955, must, on the authorities, bear a direct relationship with the failure to provide the notice. The Tribunal cannot see that there can be any direct relationship between advice given in relation to something that happened in 1954 under entirely different circumstances which is then used as an excuse for failing to put a notice to the Respondent in 1955 concerning a completely different accident in a different time and place. Furthermore, it is unable to be substantiated what the advice was and whether or not Mr Bryant accepted the advice. Clearly in relation to the right shoulder, by 1957 Mr Bryant had made some enquiries and possibly given notice in relation to that matter and accordingly had a determination that medical expenses were to be provided for that injury. As has been stated earlier, the failure to proceed with the left foot injury in 1957 has not been adequately explained by Mr Bryant's evidence. It is not possible to infer that a notice was made in 1957 concerning the left foot. It is improbable that Mr Bryant had submitted notices and/or claims for the left foot in addition to the right shoulder, and that there would not have been some action on the left foot notice or claim.

71. In all of the circumstances in relation to a notice of the left foot injury, the Tribunal finds that the Commonwealth is severely prejudiced in terms of this want of a notice and furthermore, considers that there was no notice given in 1957 but if the Tribunal was wrong, this notice in 1957 was not served as soon as practicable and the delay was not caused directly by any mistake or other reasonable cause.

72. In relation to the issue of claim which under section 16 must be provided within six months of the injury, there was no claim submitted, on the Tribunal's findings until 1995. The Tribunal cannot infer that discussions in 1957 with Mr Fraser could be considered a claim for the left foot. The claim was not made within six months of the injury be that 1955 or 1950. In relation to there being a mistake, in that Mr Bryant relies on his being provided with mistaken advice in 1954 or advice which he misunderstood, which he then applied to his consideration of his 1955 injury, the Tribunal has already expressed its findings that there are two many inconsistencies and gaps in the material available to the Tribunal to infer that Mr Bryant's failure to claim within six months was caused by that conversation in 1954.

73. The loss of documents referred to by Mr Bryant as causing him difficulty in making his claim are also not relevant because the reason for the failure to make the claim has to be a reason which occurs within six months of the injury. The loss of the documents was not known to Mr Bryant until some years after he was discharged from the RAAF in 1956. There is therefore no direct causal relationship between the loss of papers or there being a failure to make a claim within six months of the foot injury. The type of the injury also, on all of the material, does not indicate that it prevented Mr Bryant in the six months from the date of injury, from making a claim. Mr Bryant was off work for a couple of weeks and had light duties, but he did eventually return to his full-time duties on the evidence available to the Tribunal and thus cannot be considered to have been preventing him from making a claim. Mr Bryant's evidence was that he was in a daze after the 1954 accident and this continued after the 1955 accident. The difficulty with all of this as has been repeated previously is that because the Tribunal and Mr Bryant are unaware of when the accident actually happened it is difficult for him to surmise, and thus the Tribunal to infer, that he may have not been in a fit state six months after the accident to make a claim. The Tribunal simply does not have sufficient information to make such a finding. This obviously goes also to the issue of prejudice to the Commonwealth.

74. In his evidence to the Tribunal, Mr Bryant stated he was ignorant of his compensation rights. If that is the case, then he is not assisted on the authorities, because ignorance cannot be considered to be a mistake or other reasonable cause in terms of the 1930 Act. Mr Jones' submission is that there is a combination of factors operating including ignorance, mistaken belief and Mr Bryant's state of mind. For the reasons expressed earlier, the Tribunal does not consider that any of those matters can be substantiated on the evidence. Furthermore, the prejudice to the Commonwealth in this matter is severe and real.

75. In relation to the duty of the Respondent to advise about such matters as to notices and claims for the compensation, the Tribunal does not consider on the evidence available to it that it can make any finding that the Respondent was lacking in its provision of such advice. Accordingly, the Tribunal finds that in relation to subsection 16(1)(a)(ii) the failure to make a claim within the six month period was not occasioned by mistake, absence from Australia or other reasonable cause. Thus, pursuant to section 16 of the Act, there is a failure by Mr Bryant to provide a notice as soon as practicable or a claim within six months of the injury and there is no mistake or other reasonable cause occasioning that delay. Furthermore, the Tribunal finds that the Respondent is prejudiced in this matter because of these failures. Having so found, then the claim cannot be admitted or entertained and the rejection by the Respondent of the claim is correct. Accordingly, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr P D Lynch, Member

Signed:

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

Associate

Date of Hearing 27 May 2002

Date of Decision 29 January 2003

Representative for Applicant Mr P Jones, Solicitor, Rockcliffs

Representative for the Respondent Mr G Elliott of Counsel

Solicitor for the Respondent Mr T Postma, Solicitor, Phillips Fox