Hunt and Military Rehabilitation and Compensation Commission [2010] AATA 259 (14 April 2010)

Last Updated: 15 April 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 259

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1776

VETERANS' APPEALS DIVISION		)
	Re		DAVID HUNT

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 14 April 2010

Place Brisbane

Decision

The decision is affirmed.

.............Signed...................
Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – entitlement to compensation – ignorance of entitlements or procedural obligations not reasonable cause – no reasonable cause for failure to serve notice of accident or make claim for compensation – Commonwealth prejudiced by failure to give timely notice of accident – decision under review affirmed

Commonwealth Employees’ Compensation Act 1930 (Cth), s 16

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 124

Commonwealth v Connors [1989] FCA 78; (1989) 10 AAR 395

REASONS FOR DECISION

14 April 2010

Deputy President P E Hack SC

1. Mr David Hunt served in the Australian Regular Army between 1958 and 1964. He says that in October 1958 he injured his ankle in the course of his training. In May 2008, almost 50 years after the incident, Mr Hunt made a claim for compensation for an injury to his left ankle. The claim was rejected by the respondent, the Military Rehabilitation and Compensation Commission on 10 November 2008 on the grounds of late notice and that decision was affirmed on re-consideration on 25 March 2009.
2. The parties have agreed that the question of notice ought to be decided at the outset and before any consideration of the underlying factual merits of Mr Hunt’s claim.
3. By virtue of s 124 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Mr Hunt is entitled to compensation under that Act in respect of an injury suffered before the commencement of that Act if compensation was, or would be, payable in respect of that injury under the legislation in force at the time of the injury. Conversely, Mr Hunt is not entitled to compensation under the present Act if compensation was not payable under the statute in force at the time of the injury.
4. In 1958 entitlement to compensation was dealt with by the Commonwealth Employees’ Compensation Act 1930 (Cth) (the 1930 Act). That Act, by s 16, provided as follows:

“(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 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.

(3) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.”

5. Sub-section 16(1) has the effect of imposing two requirements – a requirement to serve “notice of the accident” on the Commissioner (by the employer) “as soon as practicable after it has happened” and a requirement to make a claim for compensation within six months from the occurrence of the accident. Mr Cockburn, the solicitor for Mr Hunt, accepted that neither of these requirements had been satisfied; he submitted however that the proviso to s 16(1) operated to excuse the non-compliance.
6. The first limb of the proviso will excuse the failure to give notice as soon as practicable in either of two circumstances – where satisfied that the Commonwealth has not been prejudiced by the failure to give notice and where the failure was occasioned by mistake, absence from Australia or other reasonable cause. Mr Hunt’s case is that the Commonwealth was not prejudiced by the absence of notice and that, in any event, he had other reasonable cause.
7. So far as prejudice is concerned, the event in question occurred nearly 50 years before any notice was given. Necessarily, Mr Hunt was immediately aware of having suffered an injury. Whilst there are service records, including service medical records, available, there are no medical records available, despite the efforts of the Commission, for decades after Mr Hunt’s discharge in 1964. But the absence of an accident report and a claim for compensation had the consequence that there was no contemporaneous investigation, either factual or medical, of the circumstances of the incident. Moreover, it is part of the stock in trade of a compensation authority to obtain and examine medical histories to determine whether the histories are consistent with the claimed injury and to see whether other factors may have caused or contributed to the injury claimed. Without more, I would have regarded the absence of any investigation and the medical records as constituting a prejudice to the Commonwealth however I need not go that far. It is enough for me to say that I am not satisfied that the Commonwealth is not prejudiced by Mr Hunt’s failure to give timely notice of the accident.
8. Beyond that, I do not regard Mr Hunt as having a reasonable cause for his failure to give notice of the accident or to make a claim.
9. It was said for Mr Hunt that at the time of the incident he was a young and inexperienced soldier and unaware of his rights and obligations concerning compensation. Even assuming that to be so it does not assist him. Mr Hunt’s ignorance of his entitlements or the procedural obligations does not constitute reasonable cause[1]. The case is not one where the injury was minor, with slight effects on Mr Hunt such that it might be thought reasonable to do nothing until the injury commenced to have severe consequences. He says that it continued to dog his career and that he frequently rolled his ankle.
10. Mr Hunt complained that he had been unable to obtain his Army medical records from the time of his discharge until quite recently. He says that despite making frequent requests the documents were never able to be produced to him. I very much doubt that that could be regarded as a reasonable cause but even were it to be so regarded it does not assist him because it does not provide a reasonable cause for his failure to give notice of the accident at any time prior to his discharge.
11. Finally, I observe that Mr Hunt has sought to demonstrate, by reference to the Army medical records, that he has a compelling case on the merits. I am not called upon to decide whether that is so or not. I am merely concerned to determine whether the Commonwealth is not prejudiced by the late notice and whether Mr Hunt’s failure to give notice and make a claim could be excused. I am satisfied that both those questions should be found against Mr Hunt.
12. It follows that I would affirm the decision under review.
    

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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

Associate

Date of Hearing 26 March 2010

Date of Decision 14 April 2010

Solicitors for the applicant Cockburn Legal & Consulting

Solicitors for the respondent Sparke Helmore

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[1] Commonwealth v Connors [1989] FCA 78; (1989) 10 AAR 395, 397-8.