Adrian Sowton and Military Rehabilitation and Compensation Commission
[2014] AATA 239
[2014] AATA 239
Division VETERANS' APPEALS DIVISION File Number
2013/1598
Re
Adrian Sowton
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 24 April 2014
Place Melbourne The Tribunal affirms the decision made by a Review Officer of the Respondent on
20 March 2013........[sgd Egon Fice].................................................................
Egon Fice, Senior Member
COMPENSATION – Claim under the Commonwealth Employees’ Compensation Act 1930 – Absence of notice and claim within the prescribed periods – Mistake or other reasonable cause – Did the claimed injury arise out of or in the course of military service – Degeneration of cervical spine – Causal connection – Duties performed – Lack of evidence – 45 year delay between service and claim for injury
Legislation
Commonwealth Employees’ Compensation Act 1930 (Cth) ss 4, 9, 16
Commonwealth Employees’ Compensation Act 1948 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 104
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124
Veterans’ Entitlements Act 1986 (Cth) s 120
Cases
Commonwealth of Australia v Connors (1989) 86 ALR 247
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Repatriation Commission v Smith (MJ) (1987) 74 ALR 537
Sullivan v Civil Aviation Safety Authority (2013) 62 AAR 77
Secondary Materials
Macquarie Dictionary (6th ed, Macmillan Publishers Group Australia, 2014)
Taber’s Cyclopedic Medical Dictionary (17th ed, F.A David Company Philadelphia, 1993)
The New York Times, Health Guide Cervical Spondylosis (New York Times Company) viewed 24 April 2014
REASONS FOR DECISION
Egon Fice, Senior Member
24 April 2014
Mr Adrian Sowton registered for National Service on 19 February 1965. He was called up and enlisted in the Australian Army on 3 February 1966. Upon completing his basic training at Kapooka, Mr Sowton completed a Clerk (Ord) course between 4 July 1966 and 9 September 1966. He was then posted to 5 CAD which was in Gladstone, South Australia as an Ordinance Clerk. Although Mr Sowton disputes the fact that he appears to have been downgraded from GP 3 to GP 1 in January 1967, that is what his service record discloses. It then described his duties as in posting Clerk (Ord).
Despite the description on his military service record regarding duties he was required to perform at 5 CAD, Mr Sowton said in evidence that he spent almost all of his time while in Gladstone lifting heavy ammunition boxes onto trucks for transporting. According to Mr Sowton, it was this heavy lifting which caused him to suffer an injury to his neck, right shoulder and arm. He claimed that the heavy lifting was a significant contributor to ongoing cervical spine degenerative problems from which he continues to suffer.
Mr Sowton lodged a claim for rehabilitation and compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) on about 6 September 2012. Where the Claim Form asked for the nature of the injury, disease or illness for which the applicant was claiming, Mr Sowton wrote: injury and degenerative condition. Also, in response to the question regarding which part of his body was affected, Mr Sowton wrote: L 5 – shoulder and right arm (in the course of the hearing Mr Sowton agreed that the reference to L 5 (the lumbar spine) should have been a reference to C 5 (the cervical spine)). He noted that the injury happened or that he first noticed the disease or illness in 1974. When indicating where the injury occurred, Mr Sowton said: at 5 CAD in 1966 and 1967.
In a letter dated 11 January 2013 a delegate of the Military Rehabilitation and Compensation Commission (MRCC) informed Mr Sowton she had determined that the Commonwealth was not liable to pay compensation for: a “lumbar spine, right shoulder and right arm” condition.
In a letter dated 29 January 2013, Mr Sowton requested a review of the delegate’s decision. On 20 March 2013 a Review Officer with the MRCC notified Mr Sowton that the decision made by the delegate on 11 January 2013 was affirmed. Mr Sowton then lodged an application with the Tribunal on 9 April 2013 seeking a review of the decision made by the Review Officer.
The issues which I need to determine in this matter are complicated by the fact that the injury which Mr Sowton claims he suffered in the course of his military service arose in 1966/1967. At that time, the relevant legislation providing compensation for Commonwealth employees was the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act). In that Act, an employee was defined to include a member of the Defence Force (s. 4(1)). The matters which I need to determine are:
(a)whether s. 16 of the 1930 Act applies so as to preclude Mr Sowton’s compensation claim;
(b)if I were to find that s. 16 of the 1930 Act did not preclude Mr Sowton from making the compensation claim, whether he in fact suffered the injury claimed;
(c)if he suffered the claimed injury, whether it arose out of or in the course of his military service; and
(d)if I find he suffered the claimed injury and it arose out of or in the course of his military service, whether there is a causal connection between the claimed injury and his current medical condition.
APPLICATION OF THE 1930 ACT AND THE SRC ACT
At the time Mr Sowton claimed the injury occurred, the legislation which covered injuries to Commonwealth employees, which included members of the Defence Force from 3 January 1949 (Commonwealth Employees’ Compensation Act 1948), was the 1930 Act. Section 9(1) provided:
If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.
However, the 1930 Act contained significant qualifications. Section 16(1) provided:
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 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.
The 1930 Act was repealed on 1 September 1971 upon the coming into effect of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). The 1971 Act contained transitional provisions in s. 104 permitting compensation to be paid in respect of injuries sustained before that Act commenced provided that compensation was payable in respect of the claimed injury. The SRC Act (initially named the Commonwealth Employees’ Rehabilitation and Compensation Act 1988) effectively came into operation on 1 December 1988 at which time the 1971 Act was repealed. It also contains transitional provisions. Section 124, so far as it is relevant, provides:
(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)…
(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)….
Given that the SRC Act is the statute under which Mr Sowton now claims compensation for the injury he said he suffered in 1966/1967, his right to compensation arises under the 1930 Act and therefore it is subject to the limitation set out in s. 124(2)(b) of the SRC Act. The preliminary question therefore is whether s. 16 of the 1930 Act precludes
Mr Sowton’s claim.
IS MR SOWTON’S CLAIM BARRED BY S. 16 OF THE 1930 ACT
The first issue which I must determine is whether Mr Sowton gave notice of the accident, which resulted in his claimed injury, to the Commonwealth as soon as it was practicable after the accident occurred, before he left his employment with the Defence Force and, at the latest, within six months of the date of the accident.
In a letter sent to the Tribunal dated 26 March 2013, Mr Sowton said that his claimed condition commenced as discomfort associated with the strain or stretching on his “lifting side”, being his right hand side, while he was lifting and moving containers of
25 lb bombs between storehouses to weapons inspection sites and back to storehouses. Mr Sowton said that while at 5 CAD, he used to hit golf balls from a raised target area to a raked “green” with some other Army personnel at that site, including a senior officer. He said he informed those Army personnel at that time of some discomfort in the right side of his neck and shoulder area.In a letter dated 29 January 2013 addressed to the Department of Veterans’ Affairs
Mr Sowton said that the physical discomfort he experienced while at 5 CAD was known to senior armed forces personnel and it resulted in him being deployed to driving duties, collecting unexploded devices near the north of Adelaide to the Eyre Peninsular. He also said that he did not approach the medical representative at that base because he was given relief from the heavy lifting duties and the fact that the designated medical representative was apparently a lance corporal and an alcoholic.With respect to Mr Sowton, I do not consider that while employed by the Defence Force, he gave notice of an accident which resulted in his claimed injury in accordance with
s. 16 of the 1930 Act. From the evidence I have before me, there is insufficient detail in what was said to constitute proper notice under s. 16 and, in any event, it was not in writing which the Act seems to require (that is because notice of the accident was required to be served on the Commissioner). While I appreciate Mr Sowton claimed the injury he sustained while serving in the army contributed to the degenerative disease he now suffers in his cervical spine, and that it was not apparent to him at that time, nevertheless, the 1930 Act required written notice of the accident because it provided for compensation for injury arising out of an accident (s. 9(1)).Focus in this enquiry must therefore shift to the provisos set out in s. 16(1)(b)(i) and (ii).
The first proviso ((i)) would allow consideration of a claim where notice had not been given as required under the Act if the Commonwealth is not prejudiced by that lack of notice, or the absence of notice in accordance with the Act was occasioned by mistake, absence from Australia or other reasonable cause. Mr J Lenczner of counsel, who appeared on behalf of the MRCC, submitted that the Commonwealth was prejudiced by the 45 year delay in notifying the Commonwealth of his claimed condition for the following reasons:
(a)it has prevented the Commonwealth from obtaining contemporaneous medical evidence and evidence from independent witnesses regarding the circumstances which gave rise to the claimed condition;
(b)save for a few Defence Force service records, the Commonwealth believes that any other service records relating to Mr Sowton have been destroyed;
(c)
although Mr Sowton’s service record discloses his posting to 5 CAD on
12 September 1966 as a clerk, there are no records of the duties he performed in the course of that posting;
(d)Mr Sowton’s service medical records did not disclose him suffering an injury during his Army service;
(e)there was no independent evidence from witnesses regarding the circumstances giving rise to Mr Sowton’s claimed medical condition;
(f)Mr Sowton’s claim to have suffered an injury in the course of his Army service is inconsistent with his discharge medical report which discloses no injury in the course of his service;
(g)Mr Sowton contended he first noticed the claimed condition and its connection with his alleged duties in 1966/1967 and first sought treatment in 1974 or 1977 but was unable to produce any records supporting the claimed treatment;
(h)Mr Sowton relies almost entirely on his assertions regarding his service duties and their connection with his claimed injury;
(i)there were no medical records available regarding the treatment Mr Sowton sought for the claimed injury prior to 1995, a period of some 27 years after discharge from the Army;
(j)although Mr Sowton claimed to be aware of the relationship between his duties in the course of Army service and his claimed condition, he took no action to determine his entitlements to compensation even though he asserted he obtained treatment for that condition in 1974 or 1977; and
(k)there was no medical evidence linking Mr Sowton’s current degenerative spinal condition with his army service or anything else other than age-related degeneration.
The Macquarie Dictionary defines prejudice as: 3. Disadvantage resulting from some judgement or action of another. 6. To affect disadvantageously or detrimentally. While there is no onus of proof placed on any party in a proceeding such as this before the Tribunal, the Tribunal is nevertheless required to come to the correct or preferable decision based on the evidence put before it at the hearing.
In order to arrive at that decision, the Tribunal needs to make findings of fact based on the balance of probabilities. That is the ordinary civil standard of proof required by the Courts. It is also the standard which the Courts have accepted should be the standard applied by the Tribunal unless there is a legislative direction to the contrary. For example, Brennan J as President of the Tribunal in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 said this, at 41, about how facts are to be proved and how the sufficiency of proof is to be determined where the rules of evidence are not binding on the Tribunal:
The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.”
Woodward J in McDonald v Director-General of Social Security (1984) 1 FCR 354 although dealing with the onus of proof question, which is not relevant in this proceeding, said this, at 358:
If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing.
I should also refer to the Full Court of the Federal Court of Australia (Northrop, Beaumont and Spender JJ) decision in Repatriation Commission v Smith (MJ) (1987) 74 ALR 537 where the Court dealt with the standard of proof required in s. 120(4) of the Veterans’ Entitlements Act 1986. That section required the Repatriation Commission, when making a determination under that act, to decide the matter to its reasonable satisfaction. The Court said, at 547:
Even if the tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. MacDonald’s case, supra, dealing with Social Security legislation, is not authority to the contrary.
I should point out that in a recent case before the Federal Court of Australia (Jagot J), Sullivan v Civil Aviation Safety Authority (2013) 62 AAR 77, her Honour may be understood to be suggesting that the Tribunal is not bound by the standard of proof ordinarily applied to civil proceedings in the courts. Her Honour said, at [36] and [38], when referring to the High Court decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259:
For the same reasons reference to notions of the “preponderance of probabilities” and the need for “exact proofs”, “strong” and “cogent” evidence which peppered the submissions of Mr Sullivan are apt to divert attention from the Tribunal’s functions as defined by statute. This point was made in the joint judgement of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 (Wu Shan Liang) when they rejected an argument which drew “too closely upon analogies in the conduct and determination of civil litigation”.…
Provided the material findings of fact and the ultimate decision are reasonably open and based on some logically probative material the process of reasoning cannot properly be impugned on the basis that the decision maker did not apply, or say in some way that it applied, Briginshaw.
The passage which her Honour referred to in Wu Shan Liang is found at 282, where Brennan CJ, Toohey J, McHugh J and Gummow J said:
Where facts are in dispute in civil litigation conducted under common-law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature (71). A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term “balance of probabilities” played a major part in those submissions, presumably as a result of the Full Court’s decision. As with the term “evidence” as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance (emphasis added).
The first point to make about the decision in Sullivan is that it was a decision of the Tribunal, which is required to act judicially as explained in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 65 and 68 – 69, where Bowen CJ and Deane J said:
Many tribunals whose functions are purely administrative are under a duty to act judicially, that is to say, with judicial detachment and fairness. The trappings of judicial decision-making are, in some cases, no less appropriate to such a tribunal than they are to a court concerned with the exercise of the judicial power of the Commonwealth.…
Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal [AAT] is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment.
By way of contrast, the decision in Wu Shan Liang was a decision made by delegates of the Minister for Immigration and Ethnic Affairs. The delegates are not required to act judicially. They do not conduct a hearing or take sworn testimony from witnesses. The passage to which I have referred above makes it plain that the High Court was referring to administrative decision making only in the context of the primary decision maker or makers and not the decision making process on review by a body required to act judicially, such as this Tribunal.
The second point to make regarding Sullivan, if it is understood in the way I have described above, is that there are at least two Full Court decisions which make it clear that the Tribunal, where it must make a finding on the facts, is ordinarily required to do so on the preponderance of probabilities or, as it is more commonly referred to, on the balance of probabilities.
As far as evidence is concerned in Mr Sowton’s case, there is a period of some 27 years for which no medical evidence was available. This is significant because Mr Sowton’s medical records in the course of his Army service, limited as they are, make no mention of him having sustained any injury of the kind for which he now seeks compensation. Although they disclose that he had an x-ray on 10 July 1967, other than Mr Sowton’s oral evidence, there was nothing in the documents indicating the purpose of that x-ray. Furthermore, and significantly, Mr Sowton’s final medical board report on discharge from the Army required him to state whether he suffered any injuries, disabilities or wounds during his service. His answer to that question was: Nil.
Although Mr Sowton said in evidence that in approximately 1977 he experienced discomfort in the region of his neck and right shoulder which caused him inconvenience, and that he presented to Dr Dolman with that problem whereupon he was referred to a sports medicine practice in North Adelaide, there was no objective evidence to support that statement.
In fact the earliest clinical record of Mr Sowton experiencing shoulder problems is in the notes from his general practitioner, Dr Monk, in 1984. However, the entry made on
5 June 1984 refers to a fall resulting in Mr Sowton injuring his left shoulder, some 4 weeks prior to the consultation, which required an x-ray. The next entry (22 January 1994), which also refers to his left shoulder, states: 1976 had x-ray – playing cricket – dropping things – L shoulder (problem)… He lacked strength in L shoulder.
With respect to Mr Sowton, his statement regarding experiencing discomfort in the region of his neck and right shoulder in 1977 appears, from the clinical notes, to be a problem with his left shoulder rather than the right shoulder. The next entry in the clinical notes is dated 28 January 1994 and it refers to problems with his cervical spine, particularly at C5-6 and C6-7. This appears to have followed a radiological assessment conducted on 25 January 1994 which reported:
Moderate degenerative changes are present at the C5-6 and C6-7 levels with narrowing of the disc spaces, irregularity and sclerosis of the vertebral end plates and osteophytes on the vertebral body margins. There are no significant facet joint degenerative changes. The osteophytes are causing narrowing of the C5-6 and C6-7 intervertebral foramina of both sides. The vertebral alignment is normal with no evidence of subluxation, dislocation or fracture. There is no other bone or joint abnormality seen.
It should be clear from the above evidence, that there is a very long period of time, some 27 years, during which there was no medical evidence of a problem with his cervical spine or right shoulder and arm. Although Mr Sowton testified that he did not engage in any activity during that period of time which may have caused or aggravated an existing problem, other than Mr Sowton’s evidence, there is no objective way in which the MRCC can test that evidence. This plainly puts the MRCC at a distinct disadvantage, particularly if Mr Sowton’s evidence were to be accepted. In fact, Mr Sowton’s evidence itself raises some questions regarding the accuracy of his memory. Dr Monk’s clinical notes made in 1984 and 1994 appear to indicate that the problem Mr Sowton described as resulting from his Army service is not the same problem which he claimed he had treated in 1976 or 1977.
The second significant issue is the duties performed by Mr Sowton while at 5 CAD. His Army records plainly disclose him to have been posted into that unit as a clerk. Despite that, in his oral evidence, Mr Sowton said that almost every day, while he was at 5 CAD, was spent loading and unloading trucks with ammunition boxes containing multiple 25 lb shells and cartridges.
I had in evidence an Affidavit made by Ms Danielle Kenda, a paralegal employed by the Australia Government Solicitor which acts for the MRCC. Ms Kenda testified that she had made a number of attempts to contact persons identified by Mr Sowton who may have been able to give evidence about duties he performed while 5 CAD. One of those persons, Mr Graham Doolan, said he had served in the Australian Army at Gladstone in South Australia from 1967 to 1968. He recalled a serviceman by the name of Sowton but did not recall his Christian name. Mr Doolan apparently told Ms Kenda that Mr Sowton carried out duties similar to those which he carried out which he described as general yard duties, such as moving objects around the yard, and moving bombs which had not been detonated. He said they lifted boxes of ammunition onto rollers which were then rolled into the storehouse. That duty was undertaken by two men, and not by any single person. He said he could not recall the weight of the boxes but stated that they were not that heavy.
I also took into evidence a statutory declaration made by Lynette Joy Grant. Mr Sowton managed to locate Ms Grant who he said worked in the office at 5 CAD near Gladstone at the time he was stationed there. Ms Grant confirmed she was employed by the Department of the Army as a secretary at 5 CAD for about 4 ½ years from 1966 until about April 1969. She then said:
During that period, I knew Mr Adrian Sowton as a National Servicemen who was stationed at 5 C.A.D. I certify that Mr Sowton did not work in the office during my period there, but was employed outside the office on other duties.
While Mr Sowton contended that Ms Grant’s statutory declaration substantiated his claim regarding the duties he performed while at 5 CAD, with respect, her statement does not go that far. It simply supports his statement that he did not do clerical duties while stationed at 5 CAD. Although Mr Doolan’s evidence goes some way to supporting
Mr Sowton’s claim, there are some differences in his recollection of the duties. Most significantly, he stated that the ammunition boxes which were moved where not particularly heavy and rollers were used when moving those boxes, perhaps suggesting that they may have been lifted onto and from trucks but not otherwise carried. Furthermore, Mr Doolan claimed the boxes were always handled by two persons, a fact which Mr Sowton appears to have omitted.
When Mr Doolan’s statement was put to Mr Sowton in cross-examination, he said he didn’t agree that he carried out duties similar to those described by Mr Doolan. He claimed that was 50 – 60% of what he did. He also disagreed with the weight of the ammunition boxes described by Mr Doolan. Mr Sowton said in cross-examination that he moved about 15 boxes per day, every day.
Mr Sowton was also referred to a statement made in a letter he sent to DVA dated
29 January 2013. He said:
In regards the physical discomfort I experienced due to this deployment, that discomfort was known to the senior armed forces personnel – with the result that I was then deployed to driving duties, which driving duties saw me collecting unexploded devices from the near north of Adelaide to Eyre Peninsular in the company of disposal personnel (a Captain – Young – and a Warrant Officer whose name I do not recall.
I did not approach the person designated as the medical representative because I was given relief from these heavy lifting duties as described –…
In cross-examination Mr Sowton agreed that he made this statement after conferring with another ex-servicemen and being told that it would assist his case.
The problem with this evidence is immediately apparent. It does not engender confidence in the accuracy of that evidence. Furthermore, it leaves open the question which I am required to answer, that being whether the nature of the duties carried out by Mr Sowton while on National Service contributed to the problems he currently has with his cervical spine, right shoulder and arm. Unless I were to accept Mr Sowton’s evidence as being entirely accurate, I do not have sufficient material before me to make such finding. More importantly, despite extensive research by Ms Kenda, the MRCC has been unable to locate any evidence which casts serious doubt on Mr Sowton’s claim.
Given the apparent contradictions in the scant evidence which is available regarding
Mr Sowton’s medical condition, its onset and its cause, I find that the MRCC is prejudiced by the fact that Mr Sowton did not serve written notice on the Commissioner or lodge a claim within the time prescribed by s. 16(1) of the 1930 Act. It is not able to provide a proper evidentiary response to the claims Mr Sowton makes.
The final matter which I need to consider is whether Mr Sowton’s failure to give notice or make a claim within the prescribed period was occasioned by mistake, absence from Australia or other reasonable cause. These provisos apply to both s. 16(1)(b)(i) and (ii). He was not absent from Australia during any period and therefore that reason does not apply to him.
In his letter to the Tribunal dated 26 March 2013 Mr Sowton said:
In regards [to] my application being out of time, I have only become aware that personnel who did not serve in combat zones were, in certain circumstances only, eligible to make application to the Department of Veteran’s (sic) Affairs. The reason this has come to my attention is because the grand-father of my step-children made reference to my wife in very recent times that he was the beneficiary of a Gold Card which covers his transport and treatment for a condition now impacting on him. My wife was aware that he had not served in a combat zone during WW2 and, from his association with Public Service employees, as a former Public Servant, he advised my wife that in certain circumstances you did not need to have been posted to a combat zone to qualify for assistance.
A similar situation arose in the case Commonwealth of Australia v Connors (1989) 86 ALR 247. In that case, the Full Court of the Federal Court of Australia (Northrop, Keely and Ryan JJ) was required to determine whether Mr Connors’ failure to make claim within the time prescribed under s. 16 of the 1930 Act was occasioned by mistake or other reasonable cause. The Court found that the facts failed to justify a finding of mistake or reasonable cause under s. 16 of the 1930 Act. Northrop and Ryan JJ said, at 250:
The words “mistake… or reasonable cause” or “mistake or other reasonable cause” have been considered in many authorities: see for example Murray v Baxter (1914) 18 CLR 622; Shotts Iron Co Ltd v Fordyce [1930] AC 503 and Black v South Melbourne [1963] VR 34. From the authorities it is clear that in this context the word “mistake” includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other “reasonable cause”.
The evidence given by Mr Sowton simply discloses his ignorance of the law (a right to claim under the 1930 Act). There was no evidence that he made any enquiries whatsoever at the time of injury or at any time prior to lodging his application some
45 years after the events said to give rise to the claim occurred. This is so even if his evidence regarding seeking medical treatment for his cervical spine in the mid-1970s is accepted. Had he considered that his army service caused the problem for which he now claims, I would have thought it reasonable that he made enquiries at that time. He did not. Accordingly, I find that Mr Sowton’s failure to give notice to the Commissioner or make a claim within the time set out in s. 16 the 1930 Act cannot be attributed to mistake or other reasonable cause.
As a consequence of my findings regarding the requirement to give notice or make a claim no later than six months from the occurrence of the accident which gave rise to his claim for compensation, my opinion is that s. 16(1) applies so as to preclude
Mr Sowton’s claim for the injury he says he incurred while serving in the army as a National Servicemen between 1966 and 1967. While that necessarily means that
Mr Sowton’s claim for compensation must fail, in the event that I am wrong about the application of s. 16(1) of the 1930 Act, I propose to examine his claim on the evidence before me as if s. 16(1) did not apply to him.
THE RIGHT TO COMPENSATION UNDER THE 1930 ACT
Section 9(1) of the 1930 Act sets out the Commonwealth’s liability for injury caused to an employee.
The word injury is defined in the 1930 Act and it means: any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;…
Mr Sowton’s evidence regarding his duties while at 5 CAD, set out in a statutory declaration he made on 10 July 2013, was:… my deployment at 5 CAD Gladstone saw me exclusively lifting containers containing multiple 25 Pound bombs onto trailers attached to Land Rovers and driving them to other locations then unloading them onto rollers then stacking them in the alternate storage sites. He also said that while deployed at 5 CAD, he suffered some marginal discomfort in the region of his neck and shoulder areas impacted by continual heavy lifting. Mr Sowton said that he attributed the discomfort he experienced to heavy lifting of ammunition boxes and that he was excused from that task for a period of time until the discomfort eased. He believed he had suffered a strain and did not seek a medical opinion.
In his statutory declaration Mr Sowton deposed to the fact that in about 1977, he again experienced discomfort in the region of his neck and right shoulder and that he presented to a Dr Dolman whereupon he was referred to Burnside Memorial Hospital for x-rays. He said he was informed that he had the onset of a degenerative condition and was referred to a Sports Medicine practice in North Adelaide where he underwent extensive rehabilitation including being stretched on a rack and having the affected area compressed. He claimed to have periodically experienced discomfort which he self-managed until 2009 when he experienced a severe reaction for no apparent reason. He then sought medical intervention by medical practitioners at Doncaster and Ringwood, and then attended Knox Hospital.
The problem faced by Mr Sowton is that the objective evidence before me does not support what he claims occurred while at 5 CAD, nor does it support his claim that he sought medical intervention in about 1977 for a complaint relating to his cervical spine, right shoulder and arm.
Mr Sowton’s record of service discloses a posting to 5 CAD as a Clerk (Ord) in September 1966. It states that on 19 September 1966 he was rated as a Group 3 Private Clerk (Ord). The next entry is made on 9 January 1967 and it indicates Mr Sowton had been reduced to a Group 1 Private in posting Clerk (Ord) due to unsatisfactory performance of duties. On its face, these entries indicate that he in fact performed clerical duties between September 1966 and January 1967. Mr Sowton refutes what is stated in his service record and claimed support from Ms Grant who said, in a statutory declaration made on 13 December 2013, that Mr Sowton did not work in the office during 1966 onwards but was employed outside the office on other duties. Mr Sowton claimed that those other duties were the heavy lifting work to which he has referred.
However, Ms Grant does not go so far as to say that he was engaged in those duties. The only other evidence, albeit hearsay, regarding the lifting of ammunition boxes comes from Ms Kenda following her conversation with Mr Doolan. Mr Doolan apparently told Ms Kenda that Mr Sowton undertook similar duties to those he carried out including general yard duties such as moving objects around the yard and moving bombs which had not been detonated. However Mr Doolan did not consider that the boxes containing the ammunition were heavy.
The most that one can say about the scant evidence regarding the duties performed by
Mr Sowton while at 5 CAD is that on occasions, he was required to move ammunition boxes containing some undetonated 25 lb bombs. Although Mr Sowton said these boxes were heavy, weighing in excess of 100 lbs, Mr Doolan’s account suggests that those ammunition boxes were not necessarily full.
Significantly, the objective evidence does not disclose that Mr Sowton complained about the weight of the boxes he was required to lift or that he suffered any injury while doing so. Although I had two Sick Reports in evidence indicating he had reported sick while at 5 CAD on 28 November 1966 and 3 August 1967, those reports make no mention of the injury Mr Sowton claims occurred. That is despite the fact that Mr Sowton said in evidence he did not seek a medical opinion while at 5 CAD because the Medical Officer was a lance corporal known to be a chronic alcoholic and not someone he ever considered presenting to.
There is one entry in his medical records indicating that he underwent an x-ray at Port Pirie on 10 July 1967. At that time, his service record indicates he was at Gladstone with 5 CAD. However there is no record of the reason for that x-ray, nor is there any record of which part of his body was x-rayed.
His final medical board required Mr Sowton to complete answers to a number of questions, including whether he suffered any other disabilities, wounds or injuries during his service. Mr Sowton answered: Nil. He did note that he had suffered a broken right collarbone in 1950, prior to enlistment. The report by the Medical Officer following clinical examination states: fit and well. Mr Sowton agreed in evidence that his signature appeared at the end of that report.
In his claim form Mr Sowton indicated he had medical treatment in 1974, including x-rays. When asked about this in cross-examination Mr Sowton said that his reference to 1974 was a guess but it occurred when he returned from Canberra to Adelaide which was between 1974 and 1976. He also said that the degeneration in his neck was first diagnosed in 1974. There was no medical evidence to support those statements made by Mr Sowton.
However, I had in evidence clinical notes from the Manningham General Practice where Mr Sowton attended frequently. I understood the notes to have been made by Dr Monk, who was Mr Sowton’s general practitioner. In an entry made on 22 January 1994,
Dr Monk recorded being told by Mr Sowton that he had an x-ray in 1976 for a left shoulder problem which apparently had something to do with him playing cricket. The entry also records that he lacked strength in his left shoulder and he had problems, including dropping things. Dr Monk also stated that Mr Sowton claimed he always had tightness in the back of his neck, as well as a headache. Although not entirely clear, this appears to be related to the 1976 incident. Dr Monk then made an entry simply referring to cervical spine x-ray/lumbar spine x-ray. That entry appears in the column dealing with diagnostic, treatment etc and it appears Dr Monk has suggested those x-rays be taken. It does not appear to be related to the x-ray which Mr Sowton said he had in 1976.
I had in evidence a radiological report dated 25 January 1994 which refers to the cervical spine, the lumbo-sacral spine and pelvis and right hip. That report records moderate degenerative changes present at the C5-6 and C6-7 levels with narrowing of disc spaces, irregularity and sclerosis of the vertebral end plates and osteophytes on the vertebral body margins. As for the lumbo-sacral spine, the report states there is moderate narrowing of the L 3-4 disc with small osteophytes on the vertebral body margins at this level. No degenerative changes were seen in either hip joint.
There are further entries in the clinical notes on 28 January 1994 and 16 February 1994 referring to Mr Sowton’s long-standing C5-6 and C6-7 disc disease and associated pain as well as weakness in the left arm. However there is no mention at all of the heavy lifting Mr Sowton claims was the cause of his disc disease.
In a statement Mr Sowton made on 3 September 2012 regarding his claim he said that in 2009 significant discomfort returned and he was virtually crippled because he could not move his head due to extreme pain into his right arm and right shoulder blade region.
He said he attended the Manningham Medical Centre where he was seen by Dr Preston in the absence of his usual GP, Dr Monk. Dr Preston recorded Mr Sowton telling him that he had neck pain for two weeks radiating down his right arm to the right fifth digit.
Dr Preston referred Mr Sowton for a CT scan of the cervical spine. The results of the CT scan were provided to Dr Crimmins who saw Mr Sowton on 28 September 2009. In the clinical notes, Dr Crimmins recorded right-sided neck and arm pain and that the scan showed a lot of spondylosis. In his written statement of 3 September 2012 Mr Sowton said that the advice of Dr Preston was that he had serious degenerative condition with a history dating back over a number of years.
However, that statement is not replicated in any reports prepared by Dr Crimmins. In fact, Dr Crimmins provided a report dated 6 November 2013 addressed to: To Whom It May Concern. Dr Crimmins said that Mr Sowton had been seen by Dr Preston on
22 September 2009 when he complained of a two week history of neck pain radiating to his right hand. He then reported on a CT scan conducted of Mr Sowton’s cervical spine. That scan was conducted by MDI Radiology on 22 September 2009. Dr Thomas, who wrote the report, concluded that the scan revealed multilevel degeneration with moderate central canal stenosis at the C5/6 and C6/7 levels and possibly right foramenal stenosis at C7/T1. After repeating what Dr Thomas wrote in his report, Dr Crimmins added the following paragraph:
He tells me in the past he had to lift very heavy objects (4 X 25 lb bombs) for a period of 18 months in 1966 and 1967. He has no other history of trauma so it would be conceivable that such heavy lifting may have been the instigating factor contributing to the degeneration of his cervical spine. Hence ongoing treatment such as physiotherapy should be provided for him.
Quite plainly, Mr Sowton told Dr Crimmins that he had history dating back over a number of years regarding his neck problems. He was not told that by Dr Crimmins as indicated in his statement. Furthermore, Dr Crimmins provided no explanation as to how or why heavy lifting may have contributed to the degeneration of his cervical spine.
He simply boldly stated that it was conceivable. That, by itself, does not take the matter outside the realms of possibility.
In the course of making submissions, Mr Sowton referred to an article in The New York Times dealing with Cervical Spondylitis. He did not tender that document. I have located what I believe to be the article referred to by Mr Sowton and it in fact refers to Cervical Spondylosis. However, I believe nothing turns on that. The article does state, as Mr Sowton said, that factors which can make a person more likely to develop spondylosis include having a job that requires heavy lifting or a lot of bending and twisting and also a past neck injury. However, that article can hardly be described as authoritative. It does no more than broadly state possible factors which may contribute to persons more likely to develop spondylosis. The evidence which I need to make a finding on the balance of probabilities must be specific to Mr Sowton’s case.
I also had in evidence a report from MIA Victoria, where an MRI scan of his cervical spine was conducted. Dr Page, who prepared the report, said:
At C5/6… The right foramen in particular is narrowed. There are two small areas of fluid signal within the cord dorsally at this level which most likely represents small areas of myelomalacia. This may be the result of previous trauma in the setting of these spondylitic changes.…
Conclusion: Moderate to severe cervical spondylitic changes causing mild central canal narrowing at C5/6 with two tiny associated areas of CSF signal within the cord in keeping with small areas of myelomalacia most likely related to previous trauma.
While Dr Page referred to previous trauma in relation to the myelomalacia disclosed by the CT scan, his conclusion does not seem to entirely follow what the scan disclosed at C5/6. He said that the myelomalacia may be the result of previous trauma and yet, in his conclusion, he states that it is most likely related to previous trauma. Although
Mr Sowton claimed he had not experienced any such trauma other than the heavy lifting in 1966/1967, the clinical notes of Dr Monk indicate that in about 1976 he suffered trauma to the left shoulder as a result of playing cricket and he also had a fall injuring that shoulder in 1984. Whether those events may also have led to the degenerative disease now suffered by Mr Sowton is also another possibility. The problem is that the reference simply to previous trauma is so broad and general it would be purely speculative to find that it was a reference to the heavy lifting Mr Sowton claims was the cause of his degenerative disease.
By way of contrast, a CT scan conducted by MDI Radiology on 22 September 2009 refers to the disc being narrowed and an annular bulge and endplate osteophytosis at
C 5/6. The report states this is significantly compressing the thecal sac causing moderate central canal stenosis. There is no reference to trauma. The conclusion simply states:
Multi-level degeneration with moderate central canal stenosis at the C5/6 and C6/7 levels and possibly right foramenal stenosis at C7/T1.
I also had in evidence a report prepared by Mr Torstensson, a physiotherapist, dated
7 November 2013. In his opening paragraph, Mr Torstensson said:
The duties Adrian undertook at 5 CAD Gladstone between 1966 to [sic] 1968 is a direct result of his neck problems. Repetitive lifting of heavy boxes of bombs and being right-handed would have put heavy stress on the neck on the right side.
In his report Mr Torstensson, in respect of C5/6, referred to disk osteophytes causing mild central narrowing and, in particular, narrowing in the right foramen which he said may be the result of previous trauma in the setting of the spondylitic changes. However, that misstates what Dr Page said in his report. Dr Page, when referring to the possibility of previous trauma, was explaining the two small areas of fluid signal which most likely represented small areas of myelomalacia. Myelomalacia is an abnormal softening of the spinal cord (see Taber’s Cyclopedic Medical Dictionary). Dr Page did not say that the central canal narrowing or the narrowing of the right foramen resulted from trauma.
With respect to Mr Torstensson, the statement I have quoted above simply accepts as a fact that Mr Sowton was involved in repetitive lifting of heavy boxes and then draws a conclusion without explaining how an injury might have resulted from that lifting. There is no obvious basis for that conclusion. In fact, use of the expression would have indicates the speculative nature of the conclusion. It is not apparent that Mr Torstensson questioned Mr Sowton about any other trauma which he may have experienced in the
45 years which followed his army service. There is, for example, no mention of the apparent trauma Mr Sowton suffered in in about 1976 and 1984 which involved his left shoulder.
While I accept that Mr Sowton is convinced that his cervical spine problems arise out of the duties he performed while at 5 CAD, the objective evidence, scant as it is, does not support that conclusion. Furthermore, there is no sound medical basis in evidence before me to reach that conclusion even if Mr Sowton conducted the continuous heavy lifting he claims he performed while in the army. Although Mr Sowton quotes from the MRI report by Dr Page stating he was impacted by a degenerative condition most likely related to previous trauma, as I have already said above, the reference to previous trauma is not necessarily a reference to the heavy lifting Mr Sowton claims he had to perform and, in any event, Dr Page was only referring to the small areas of myelomalacia and not the degenerative changes more broadly. Furthermore, given the passage of time since the injury is claimed to have occurred, and the chances that Mr Sowton was in fact exposed to other trauma in the intervening period, there is no possible way in which I could find, on the balance of probabilities, that there is a causal relationship between Mr Sowton’s army service and his current cervical spine, right shoulder and right arm problems.
CONCLUSION
Mr Sowton’s claim in this case is subject to the restrictive provisions set out in s. 16(1) of the 1930 Act. I have found that the Commonwealth (in this case the MRCC) is prejudiced by the want occasioned by his failure to give notice of an accident or to lodge a claim within six months of the occurrence of the accident or event giving rise to the injury. Furthermore, I have found that Mr Sowton’s failure to make a claim within that period was not occasioned by mistake, absence from Australia or other reasonable cause. For those reasons, I have found that s. 16(1) of the 1930 Act precludes his claim for compensation.
In the alternative, should I be wrong regarding my analysis of s. 16(1) of the 1930 Act, I have closely examined all of the evidence before me in order to establish whether, on the balance of probabilities, it establishes a causal relationship between the duties Mr Sowton conducted while a National Servicemen in the Army and his claimed injury to his cervical spine, right shoulder and right arm.
The first point I must make is that the evidence of continuous heavy lifting is not supported by evidence other than that from Mr Sowton. While I do not discount his evidence, the extent of that heavy lifting was not entirely clear even on his evidence. Some of his evidence indicates that he made his superiors aware of his concerns regarding the effect that the heavy lifting was having on his neck and shoulders and that he was relieved of those duties for some time by having been given driving duties, at other times, Mr Sowton simply stated that it was a never ending task, which he carried out every day while at 5 CAD. There was also the contradictory account of Mr Doolan who said the ammunition boxes were not that heavy. It is simply impossible, on this evidence, to make a finding on the balance of probabilities that Mr Sowton was subjected to the heavy lifting he claimed.
Even if one were to get over that evidentiary hurdle, making a connection between the heavy lifting of ammunition boxes in 1966/1967 and the subsequent degenerative changes in his cervical spine is simply not possible on the available evidence.
Although there is reference in the report prepared by Dr Page following an MRI of
Mr Sowton’s cervical spine to previous trauma, that statement needs to be read in the context in which it was made. Dr Page was referring to 2 small areas of myelomalacia which is a softening of the spinal cord tissue. He then said that may be the result of previous trauma in the setting of spondylitic changes. The reference to spondylitic changes of course is a reference to inflammation in the vertebrae (see Taber’s Cyclopedic Medical Dictionary). He did not say that the inflammation in the vertebrae was the result of trauma. Yet, that seems to be the way the report has been read by Mr Sowton,
Dr Crimmins and Mr Torstensson.Even if it could be read in that way, which I do not accept, there is an assumption that the trauma was the heavy lifting to which Mr Sowton referred. However no medical practitioner has given evidence about how heavy lifting could bring about the condition Mr Sowton complains of, bearing in mind the fact that the complaint is about the vertebrae in his neck and not his lower back. For those reasons, I find that on the balance of probabilities, there is no connection between Mr Sowton’s claimed heavy lifting and his injury leading to the degenerative condition which he now clearly has in his cervical spine.
It necessarily follows that I find the review decision made by a Review Officer of the MRCC on 20 March 2013 was correct. I affirm that decision.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice ...[sgd].....................................................................
Associate
Dated 24 April 2014
Date of hearing
7 April 2014
Applicant
Self-represented
Counsel for the Respondent
Mr J Lenczner
Solicitors for the Respondent
Australian Government Solicitor
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