Bain and Military Rehabilitation and Compensation Commission
[2008] AATA 730
•21 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 730
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S 200600120
VETERANS' APPEALS DIVISION ) Re OWEN BAIN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date21 August 2008
PlaceAdelaide
Decision The matter is listed before Deputy President D G Jarvis for directions on a date to be fixed. D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION - Commonwealth employees - applicant injured in 1969 during Army service - loss of records, including claims for compensation - request in 1999 for respondent to allow extension of time for request to reconsider determinations in 1971 and 1975 rejecting claims for compensation - application to review refusal of request - consideration of factors relevant to exercise of discretion to allow extension of time - merits of substantive claims - prejudice of respondent partly due to fault of Army - decision as to 1971 determination set aside and extension of time allowed - decision as to 1975 determination to refuse extension of time affirmed.
Safety, Rehabilitation and Compensation Act 1998 (Cth), ss 62(3)(b) and 124
Commonwealth Employees’ Compensation Act 1930 (Cth), s 9
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation (1999) 42 ATR 118; 92 ATC 4516
Comcare v A’Hearn (1993) 45 FCR 441
Comcare v Willems (1996) 70 FCR 244
Commonwealth v Oliver (1962) 107 CLR 353
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Kennedy v Telstra Corporation (1995) 61 FCR 160
Military Rehabilitation and Compensation Commission v Roberts (2007) 93 ALD 554
R v Secretary of State for the Home Department; ex parte Mehta [1975] 1 WLR 1087
Re Bain and Military Rehabilitation and Compensation Commission (2006) 92 ALD 694
Re MacPherson and Department of Defence (AAT 13010, 23 June 1998)
Re Robotham and Comcare [2000] AATA 213
Re Willis and Australian Telecommunications Commission and the Commonwealth of Australia (1989) 19 ALD 665
Windshuttle v Deputy Federal Commissioner of Taxation (1993) 27 ATR 88
REASONS FOR DECISION
21 August 2008 Deputy President D G Jarvis 1. The applicant, Owen William Bain, has claimed compensation for an injury to his right knee which he asserts was caused by an accident on 29 October 1969 at the Randwick Army Barracks in Sydney.
2. On 19 April 1971 a delegate of the Commissioner for Employees’ Compensation made a determination that a claim for compensation made by Mr Bain of 10 December 1969 was “disallowed” (exhibit R13, page 34). On 26 November 1975, a different delegate of the Commissioner for Employees Compensation determined that the Department of Defence (Army Office) was not liable to pay compensation in respect of the “condition of the right knee” suffered by Mr Bain (exhibit R13, page 28).
3. Mr Bain said that for reasons to which I will refer below, he took no steps at the time to challenge the above determinations made in 1971 and in 1975. However, many years later, by letter dated 23 February 1999, solicitors on his behalf requested that the respondent Commission reconsider the determinations. On 6 May 1999 a delegate of the Commission refused to do so, and referred to Mr Bain’s failure to exercise his then rights to appeal to a County Court against the adverse decisions made in 1971 and 1975; in the context of the 1975 decision, the delegate pointed out that Mr Bain was “well out of time to (appeal), that is by some 24 years” (exhibit R13, page 60).
4. In Comcare v Willems (1996) 70 FCR 244 at 250, a Full Court of the Federal Court observed in effect that the obligation to consider allowing an extended time for reconsideration arises automatically on receipt of an out-of-time request for reconsideration, and it is not necessary to make a separate application for the granting of a further period for making that request. I consider that the decision of the delegate of the respondent not to allow an extension of time within which Mr Bain could request reconsideration of each of the 1971 and 1975 determinations constituted a reviewable decision in relation to each determination.
5. On 15 May 2006, Mr Bain made an application to this tribunal to review the Commission’s decision to refuse his application for an extension of time for the reconsideration of the determinations made in 1971 and 1975. His application is the subject of these proceedings.
6. Prior to instituting the within proceedings Mr Bain had, in 2004, made a new claim for compensation for the asserted injury to his right knee. The Commission rejected that new claim, and affirmed the rejection on reconsideration. Mr Bain then applied to this tribunal in 2005 for review of that decision, in matter no. S 2005/90 in this tribunal.
7. Unfortunately certain records relating to the claims for compensation referred to in the 1971 and 1975 determinations, including the claims for compensation themselves, have been lost. As a result, the parties agreed that it was appropriate for this tribunal to determine certain preliminary issues to enable them to consider their position in relation to the two sets of proceedings in this tribunal. I analysed those preliminary issues and made certain provisional findings of fact as to those issues in an earlier decision, namely Re Bain and Military Rehabilitation and Compensation Commission (2006) 92 ALD 694.
8. At the outset of the present matter, both parties acknowledged that they accepted the provisional findings of fact that I made in that earlier decision. I will accordingly incorporate those findings, to the extent that they are relevant, in the background facts to which I refer below.
Issue before the Tribunal
9. The only issue before the tribunal in the present proceedings is whether Mr Bain should be allowed an extension of time within which to request reconsideration of the determinations made in 1971 and 1975.
Background Facts
10. The following background facts were not in contention, and are derived partly from the documentary evidence, and partly from the evidence of Mr Bain that was not disputed.
11. Mr Bain enlisted in the Australian Army on 28 July 1968, when he was seventeen years of age, and was discharged at the end of his period of engagement on 27 July 1971. At the date of his injury, 29 October 1969, he was engaged in a driver training course at the Randwick Army Barracks in Sydney.
12. Following the event in the hut on that date, Mr Bain’s knee was painful and swollen, and he was admitted to 2 Military Hospital at Ingleburn, New South Wales, the next morning. A meniscectomy was carried out on 4 December 1969. He was discharged on 19 December 1969, after 51 days in hospital.
13. In March 1970 he was promoted to lance corporal, and was posted as a storeman at Randwick. Later, in February 1971, his duties entailed driving a bus. After he left the Army he worked as an express freight clerk and then as a driver with an interstate carrier.
14. Mr Bain gave evidence that he continued to have pain and discomfort with his knee following his discharge from hospital in December 1969 and until he was discharged from the Army in July 1971.
15. He said that he had increasing trouble with his knee in 1974, and was referred by his general practitioner to Mr W J Betts, an orthopaedic surgeon. Mr Bain finally had to give up his work with the transport company on 22 January 1975. He underwent an operation on 30 January 1975. Over the years since then his knee became worse. He underwent further surgery in 1997, and has had ongoing problems with his knee since then.
Documentary Records
16. On 13 November 1969 Mr Bain signed a “Report of an Injury or Illness” form which referred to an injury on 29 October 1969. Paragraph 2 of the form, which requires a statement of the injured person as to the circumstances of the injury, states:
“Walking back to living quarters after dismissal parade and as I entered the hut my right knee gave away on me.” (exhibit R13, page 106)
17. The form includes in paragraph 5(a) a direction by Mr Bain’s commanding officer that an investigating officer would be appointed. On 28 November 1969 one Captain Johnson was appointed to investigate the circumstances surrounding the injury (exhibit R13, page 108). Under his terms of reference, he was required to obtain signed statements from Mr Bain and other persons who could give material information on various matters, including whether Mr Bain was on duty at the time of the injury, and whether the injury was caused or contributed to by any neglect, misconduct or breach of any Act, regulation, order or instruction on Mr Bain’s part or other persons.
18. On 4 December 1969, Mr Bain signed a form headed “Injury Statement by Injured Soldiers”. The form records that he sustained an injury at 1930 hours on Wednesday, 29 October 1969. It incorporated two alternatives, namely “on/off duty”, and the word “on” is deleted. Paragraph 3 of the form reads as follows:
“3. The injury occurred as follows: Entering the aisle of hut my right leg gave way from under me”. (exhibit R13, page 110)
The first portion of the above quotation is part of the printed form; the portion reproduced above in italics is a typed addition.
19. Pro forma witness statement forms were also prepared from Sappers Maffescioni and Perna, being two of three persons who were named on the Report of Injury or Illness form as witnesses to the event in the hut. In each case the date and the time of 1930 hours has been typed on the form, and the description of what the injured person was doing reads “walking down the aisle of the hut”. In each case, the cause of the accident inserted into the form states that Mr Bain’s right knee seemed to give way from under him (exhibit R13, pages 111 and 112).
Applicant’s Evidence
20. Whilst the above documents refer only to Mr Bain’s knee collapsing when he was entering or walking down the aisle of a hut, Mr Bain said in his witness statement that he had previously hurt his knee when he jumped from the back of a truck after returning to the Randwick Barracks from a driving course. He said that he was wearing a backpack, and as he jumped to the ground, he landed awkwardly and fell forward. He felt a sharp pain in his right knee as he fell on to the ground. His witness statement continues:
“I took a moment or two and then got up slowly. … Staff Sergeant Murphy was in charge of the Q store. He was standing nearby, at the back of the Q store. I recall him calling out to me and asking if I was OK. I replied ‘Yeah, I’m alright’ or words to that effect. I was pretty self-conscious about it happening in front of all the other blokes.”
21. Mr Bain then attended a dismissal parade at 4.30 pm, and was formally dismissed from active duty for the day. He went from the dismissal parade to his hut, being his living quarters. He goes on in his witness statement to say:
“I entered the hut and walked towards my bed. As I did so, my right knee seemed to twist and give way underneath me. I fell heavily to the floor.” (exhibit A3, paragraph 23)
22. In my earlier decision to which I referred above, I found that Mr Bain made a claim for compensation on or about 10 December 1969 in which he referred only to his knee collapsing when he was in his living quarters, and did not refer to jumping from the back of a truck.
23. I further found that he made a later claim for compensation on or about 19 November 1974 in which he referred to an injury sustained as a result of two events, namely jumping from the back of a truck and the knee collapsing when he was in his living quarters.
24. The 1971 determination disallows Mr Bain’s claim for compensation in respect of “internal derangement of right knee joint”, and merely states (relevantly):
“(1)The said Owen William Bain did not sustain personal injury by accident arising out of or in the course of his employment by the Commonwealth;
(2)The said Owen William Bain did not sustain personal injury by accident while travelling to or from his employment by the Commonwealth.” (exhibit R13, page 34)
The 1975 determination was equally scant. It refers to the claim for compensation in respect of “injury to cartilage in right knee”, and reads relevantly:
“(1)On the evidence before me, including specialist medical opinion, I am unable to find that the condition of loose bodies on the postero-lateral aspect of the right knee suffered by the said Owen William Bain, which necessitated surgical treatment on 30 January 1975 and which caused incapacity for work, was the result of personal injury by accident arising out of or in the course of his employment within the meaning of section 9 of the (1930) Act.” (exhibit R13, page 28)
Legislative Scheme
25. At the time of the injury to Mr Bain’s knee on 29 October 1969, the legislation in force relating to compensation for employees of the Commonwealth for employment-related injury or death was the Commonwealth Employees Compensation Act 1930 (Cth) (1930 Act). That Act was subsequently repealed in 1971, and the legislation currently in force is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (1988 Act).
26. The 1988 Act includes transitional provisions in Part X in respect of injuries suffered before the commencement of that Act. Section 124(1) provides, in effect, that subject to that Part, that Act applies in relation to an injury suffered by an employee, whether before or after the commencing day. Section 124(1A) then provides in effect that, subject once again to Part X, a person is entitled to compensation under the 1988 Act in respect of an injury suffered before the commencing day if compensation was, or would have been, payable to that person in respect of that injury under (relevantly) the 1930 Act. Conversely, under s 124(2), a person is not entitled to compensation under the 1988 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 under (relevantly) the 1930 Act. Accordingly, entitlement to compensation in respect of pre-existing injuries (that is, existing before 1 December 1988) is to be ascertained according to the entitlement provisions of the predecessor Act that was in force at the time when the relevant injury, loss or damage was suffered: Re Willis and Australian Telecommunications Commission and the Commonwealth of Australia (1989) 19 ALD 665.
27.Section 9(1) of the 1930 Act provided as follows:
“9(1)If personal injury by accident arising out of or in the course of his employment is caused to an employee of the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule of this Act … .”
28. Under s 20 of the 1930 Act, any person affected by any determination of the Commissioner was entitled, within thirty days of the date of the determination or within such extended time as the Court might allow, to appeal to a County Court against the determination, and the Court had jurisdiction to hear and determine the appeal. The section provides that the appeal “may be in the nature of a re-hearing”.
29. By virtue of s 124(1) of the 1988 Act, that Act applies to the request for reconsideration made by Mr Bain in 1999. By virtue of s 127(2) of the 1988 Act, the 1971 and 1975 determinations are taken to be determinations made by the relevant authority under the 1988 Act. Under s 62(2), a request to a determining authority to reconsider a determination may be made (inter alia) by the claimant.
30. Section 62(3)(b) of the 1988 Act provides that a request for reconsideration of a determination shall:
“(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.”
31. Part XI of the 1988 Act confers on the Commission the function of determining and managing claims under the 1988 Act that relate to defence service that occurred prior to 1 July 2004. Under s 145 of the 1988 Act, the Commission is deemed to be the “relevant authority” in relation to an employee who claims compensation, but the Act has effect as if liability imposed by the Act on the relevant authority were imposed on the Commonwealth.
32. As I have said above, the present proceedings entail reconsidering the decisions by a delegate of the Commission not to allow a further period within which Mr Bain could request a reconsideration of the decisions in 1971 and 1975.
Consideration
33. The discretion to allow an extension of time to request reconsideration of a determination that is provided for in paragraph (b) of s 62(3) is conferred in general terms; it does not incorporate any criteria by reference to which the discretion should be exercised.
34. An unrestricted discretion conferred upon the Federal Court to extend the time for an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) was considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. His Honour distilled from earlier authorities the following principles (omitting citations):
“1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period” of twenty-eight days is not to be ignored … Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained … It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time …
2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights” …) and a case where the decision-maker was allowed to believe that the matter was finally concluded. … The reasons for this distinction are not only the “need for finality in disputes” … but also the “fading from memory” problem …
3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension …
4. However, the mere absence of prejudice is not enough to justify the grant of an extension … In this context, public considerations often intrude … A delay which may result, if the application is successful, in the unsettling of other people … or of established practices … is likely to prove fatal to the application.
5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted …
6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion. …”
His Honour went on to refer to the diversity of decisions to which review might be sought under the ADJR Act. He contrasted cases which may be decided upon considerations which affect only the immediate parties with cases where wider considerations of the public interest will be involved.
35. In Comcare v A’Hearn (1993) 45 FCR 441 a Full Court of the Federal Court said at page 444 that there is no rule that an explanation for an applicant’s delay in instituting proceedings in this tribunal is an essential precondition for success of an application for an extension of time.
36. In Brown v Federal Commissioner of Taxation (1999) 42 ATR 118 Hill J pointed out at [33] that Wilcox J in Hunter Valley Developments merely sought to distil from previous case law factors that would serve as a guide, and did not suggest that those matters were exhaustive. His Honour went on to say in effect, at [37], that an application to review an administrative decision under the ADJR Act was an application which is restricted to a review on the limited grounds set out in s 5 of the ADJR Act, and was in essence an application “seeking to assert a legal error in the decision or a failure in the decision making process”, as opposed to a review on the merits. He emphasised the importance of the legislative context in which discretions to extend time appeared, and said that “(t)oo slavish an adherence” to the Hunter Valley Development guidelines, should in his view, be avoided (at [41]). He also referred to an additional relevant issue, namely the length of delay.
37. In Jackamarra v Krakouer (1998) 195 CLR 516 Kirby J also summarised principles that should be applied to procedural time defaults. His Honour’s first principle was there are no rigid rules, and “it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time.” His Honour said that each case must depend upon particular circumstances. He went on to say at [66], omitting references:
“2. Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account. The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus, if a rule requires that “special reasons” or “special circumstances” be shown as a pre-condition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary … But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application … Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred.
3. Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules …
4. The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused … However, this is basically because to grant it would be futile.”
38. I now turn to the facts of the present proceedings in the light of the above principles, bearing in mind the caveat that the principles are to be treated as guidelines and not rigid rules that will be determinative of the ultimate exercise of discretion to grant or refuse the extension of time sought.
Explanation for the delay
39. Mr Bain maintained in his evidence that he did not receive a copy of the determination dated 19 April 1971. He pointed out that the determination was sent under cover of a letter addressed to him care of the Headquarters 37 Supply Company Randwick, but by then he had been posted to the 391 Transport Platoon at Singleton. He further said that by the date of the covering letter enclosing the 1971 determination a contingent of that platoon had been sent to Malaya, although there would have been a holding unit still in Australia.
40. Counsel for the Commission, Ms Bean, pointed out that there are certain inconsistencies in Mr Bain’s evidence, and that his recollection has been shown to be deficient, because he maintains that he did not make any claim for compensation in December 1969, whereas I found in my earlier decision that a claim for compensation was made on or about 10 December 1969. Counsel further contended that the Army would have had records of where Mr Bain had been posted after his Randwick posting, so that if the letter had been sent to him at Randwick, it is likely that it would have been sent on to him at his new location.
41. In his evidence Mr Bain referred to other matters which seem to me to support his denial that he received the 1971 determination. He said that if it had been sent on to him at Singleton, he would have been required to sign for it to acknowledge that he had received it. He also said that he had a good relationship with his commanding officer at Singleton, and that if the determination had been sent to him there, his commanding officer would have explained the implications of the determination to him. Mr Bain said that he is confident that he would now recall any such discussion, but he has no such recollection.
42. Ms Bean further contended that having made a claim for compensation, Mr Bain should have followed the matter up and made inquiries as to the outcome of it. As against this, Mr Bain remained with the Army until after the date of the 1971 determination, and during this time his medical treatment was provided by the Army at no cost to him, and he did not sustain any loss of wages.
43. The 1975 determination was sent to Mr Bain under cover of a letter dated 26 November 1975 addressed to him at his parents’ house. In the earlier proceedings he claimed that he did not receive this letter either, because he had previously moved from his parents’ house. However, in the present proceedings, he acknowledged that it was likely that his parents would have sent the letter on to him. He also acknowledged that it was possible first that he had received the letter but could not now remember doing so, and second that he might not have taken any action on the letter because by then his wife was expecting a baby and he was busy working as an interstate truck driver.
44. Whatever the position as regards the receipt of the 1975 determination, Mr Bain apparently took no steps to follow up his 1974 claim. Unlike the position with his 1969 claim, the Army was not by 1974 funding his medical and hospital expenses. On either scenario, whether he received the 1975 determination or not, he rested on his rights, and has no acceptable explanation for not pursuing his then right to appeal to a County Court.
45. Mr Bain gave his evidence relevant to the applicant for an extension of time in a forthright manner, and I accept that he gave an honest account of his recollection of matters relevant to the issue of whether he received the two determinations. Nevertheless, I think it probable that contrary to his recollection, he did receive the 1975 determination. Whilst it is possible that he also received the 1971 determination, I think it more likely that he did not receive it, and I find accordingly.
Prospects of success of substantive claims
46. It is appropriate that I should next address the prospects of success of the claims for compensation, as a consideration of prejudice to the Commission will entail a review of the issues that would be raised by those claims if they were to be determined on the merits.
47. It is generally not appropriate when considering an application for an extension of time to conduct a detailed or definitive analysis of the prospects of success of the substantive claim. The parties should not be put to the expense of in effect conducting a hearing on the substantive proceedings when an application is made for an extension of time, and the tribunal will not generally be in possession of all of the evidence or submissions relevant to any such analysis.
48. In Jackamarra (supra), the High Court of Australia referred to the relevance of the merits of the substantive proceedings when determining applications for an extension of time. The Court approved dicta of Lord Denning MR in R v Secretary of State for the Home Department; ex parte Mehta [1975] 1 WLR 1087 at 1091, where his Lordship said:
“We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it as proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.”
49. In Windshuttle v Deputy Federal Commissioner of Taxation (1993) 27 ATR 88 at 95, von Doussa J referred to potential issues of credit on the hearing of the substantive application. His Honour said, at 95:
‘It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant’s case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time.”
It is, of course, nevertheless necessary on the hearing of an application for an extension of time to evaluate questions of credit that may arise if evidence relevant to that application is challenged.
50. In paragraph 4 of the principles enunciated by Kirby J in Jackamarra (supra), his Honour refers to whether the substantive case is “arguable”, as opposed to whether it is ‘hopeless, unmanageable or bound to fail”, in which case the extension of time would be refused (see paragraph 37 above). It seems to me to follow from what he said, and from Lord Denning’s above dicta in ex parte Mehta (supra), that if in the particular circumstances of a case the tribunal was in a position to conclude that the substantive cause had strong prospects of success, that would be a consideration in favour of granting an extension of time.
51. Counsel for Mr Bain, Mr Bourne, contended that Mr Bain had a strong case on the merits, either because the injury arose out of employment, or happened in the course of employment.
Did the injury arise out of employment?
52. In support of his first contention that the injury arose out of employment, counsel referred to medical reports from two orthopaedic surgeons, namely Mr Donald Jones and Mr Adrian Munyard. Mr Jones provided a medical report to the Commission dated 4 December 2007. He reported that he reviewed the available records relating to Mr Bain’s injury and also interviewed and examined him. He noted that at the time of the surgery in December 1969, a normal meniscus was removed, and he considers that the initial diagnosis of a torn medial meniscus was incorrect, and that it was more likely than not that Mr Bain had subluxed or dislocated his patella. He further considered that Mr Bain was suffering from arthritis and that his military employment was the cause of his current knee status. He thought that Mr Bain dislocated his patella on 29 October 1969, and that the patella “relocated spontaneously, sustaining an osteochondral fracture of the patella responsible for the subsequent formation of the loose bodies that developed over time” (exhibit A2, page 6). He noted a record of a reported strain injury on 31 May 1969, and summarised his opinion as follows:
“It is my opinion that the initial episode of knee pain reported as a sprained knee with minimal documentation on 31 May 1969, may well have been the first episode of subluxation of Mr Bain’s patella.
It is more likely than not that his reported knee pain, which developed when he jumped out of the truck on 29 October 1969 was also a further episode of subluxation of his patella.
When he twisted on a fixed right foot to the left entering the barracks to access his bed, which was positioned on the left side of the dormitory, he almost certainly dislocated his patella, which subsequently resulted in a 51-day period in hospital.” (exhibit A2, page 8, para 29.3)
Mr Jones went on to say that he did not consider that Mr Bain’s subsequent employment as a truck driver had resulted in an acceleration of his arthritic knee condition.
53. In Mr Munyard’s first report, which predated Mr Jones’ report, he assumed that Mr Bain had sustained an injury to his medial meniscus, and said that from the history he obtained he thought it more likely that he sustained this injury when he jumped from the truck, rather than when he twisted his knee when walking. Mr Munyard’s second report took into account Mr Jones’ reconstruction of the injury as set out in his report of 4 December 2007. Mr Munyard said that he had not been aware that the meniscus was normal, and he said that he felt that the reconstruction of the history by Mr Jones explained “the situation which Mr Bain went through” (exhibit A1). Mr Munyard repeated his opinion that it was more likely that Mr Bain injured his knee when he jumped from the truck rather than when he was walking.
54. It appears from the conclusions of both doctors that if on the hearing of the substantive claim the tribunal were to accept Mr Bain’s evidence as to the jumping from the truck, then there would be a sound basis for contending that his injury arose out of employment, even though the knee did not collapse until later that day.
55. Both parties agreed that it was not necessary in connection with the present proceedings, which involve an extension of time, for the two doctors to give evidence, and that I could rely on the information in their reports. Both doctors assumed that the history of Mr Bain’s injury included the event which Mr Bain described of jumping from the back of a truck earlier on the day when his knee collapsed in the hut. This event was not referred to in the report of an injury or illness form or in the witness statements to which I have referred or, on the finding that I made in my earlier decision, in Mr Bain’s claim for compensation. The Commission disputes that this event occurred.
56. To the extent that the claim is based on jumping from the truck, it will be open to the Commission to dispute the claim on the basis that the notice of the accident did not refer to that event. However, s 16 of the 1930 Act provides relevantly that any defect or inaccuracy in the notice of accident does not prevent consideration of the claim if the defect or inaccuracy was occasioned by a mistake or other reasonable cause. In the present matter, it was the collapse of his knee in the hut that caused Mr Bain to be unable to walk and required his admission to hospital. His focus on that event when he was in hospital is understandable, and would arguably excuse the omission from the notice of accident of any reference to jumping from the truck.
Did the injury arise in the course of employment?
57. In support of the alternative basis of the claim, it was argued by counsel for the Commission that the injury did not happen in the course of employment, and that according to the witness statements, the episode in the hut occurred at 7.30 pm, and not at 4.30 pm as Mr Bain says, but in either case the injury occurred after Mr Bain had been dismissed from duty for the day.
58. If this issue had been free from authority, I would have found this argument to be compelling, and I note that it is supported by the decision of this tribunal in Re Robotham and Comcare [2000] AATA 213. The facts of that matter were similar to those of the present matter. The applicant was a steward who lived at an Army base. Her claim for compensation failed because she had concluded her duties for the day at the time when she was injured, and the tribunal found that her injury did not arise out of or in the course of her employment.
59. A number of other authorities, however, have given an extended meaning to the concept of the course of employment in workers’ compensation legislation. In Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 Mason CJ, Deane, Dawson and McHugh JJ in a joint judgment reviewed a number of earlier authorities, including cases where employees had been injured in their lunch break or in circumstances after they had concluded their ordinary or overtime hours of work. In a joint judgment, their Honours, at page 483, after referring to cases where an injury occurred in an interval or interlude occurring within an overall period or episode of work, said:
“On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.”
Their Honours went on to say, at 484:
“In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.”
60. The last quotation was from Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529, where a railway worker died when a van, provided by his employer for his accommodation, caught fire during the night. The worker had finished work at about 4.00 pm and had no further duties to perform until the following morning, but the High Court held that it was open to the Workers’ Compensation Commission to have found that the employee’s death occurred in the course of his employment. Barwick CJ adopted a statement of Dixon J in Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 at 293 to the effect that doing what was reasonably required, expected or authorised to be done in order to carry out duties may include being at a place at which the employee’s presence “is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment”.
61. Counsel referred to other cases where employees were injured while working away from home, namely Kennedy v Telstra Corporation (1995) 61 FCR 160, Re MacPherson and Department of Defence (AAT 13010, 23 June 1998) at [35], and Military Rehabilitation and Compensation Commission v Roberts (2007) 93 ALD 554. Further authorities that illustrate an extended interpretation of the concept of course of employment are reviewed in Kennedy (supra) at 61 FCR 160, pages 166 – 168.
62. The conditions of Mr Bain’s employment when he was injured were not fully explored in the proceedings before me, but in his witness statement he says that he was required to live at the ECTTC barracks at Randwick during the duration of a six week driving course. If this was the position, it would appear on the authorities and on the state of the evidence before me that even if the event of jumping from the back of the truck is discounted, he has at least a reasonably arguable case that he was injured in the course of his employment when his knee collapsed in the hut, irrespective of whether this occurred at 4.30 pm or 7.30 pm.
Potential Prejudice to the Respondent
63. The Commission relied on a number of affidavits in support of its contention that it would be prejudiced by the granting of an extension of time in this matter. The affidavits related to the steps taken by the Commission to find records that have been lost, as well as efforts made to locate the witness Maffescioni. In addition, an affidavit sworn by Mr Ontong, the Director, Reconsideration and Appeals for the Commission, refers to prejudice suffered by the respondent. He refers to the death of the witness Perna in 1976, and to the inability of witnesses who have recently been contacted to recall the asserted fall from the truck, and the omission to instruct Captain Johnson in 1969 to investigate any such event because it had not been raised in the report of accident form or claim for compensation. The affidavit also refers to the lack of opportunity to obtain contemporaneous medical opinion regarding the likelihood of the injury having been sustained in the circumstances described by Mr Bain, or to have had him medically examined during the intervening years in order to investigate the status of his condition and any contribution to it from other causes, or the extent of impairment during the intervening years or any other contribution to that impairment.
64. In order to determine the issue of prejudice to the Commission, I must consider the position of the Commission not at the time when notice of the injury was given or the claim for compensation was made, but at the time when Mr Bain failed to appeal against rejection of his claim for compensation in April 1971 and November 1975. That is because the determinations then made are deemed by s 127(2) of the 1988 Act to be determinations by the Commission for the purposes of that Act, and this relevantly includes s 62(3)(b), which incorporates the discretion to allow an extension of time to request reconsideration of determinations of the relevant authority.
65. If Mr Bain had appealed to a County Court within thirty days of the determinations, as he could have done under s 20 of the 1930 Act, the Court would have had a discretion under that section for the appeal to be in the nature of a re-hearing. I think it reasonable to assume that the Court would have proceeded on that basis, and that either in the course of pre-hearing procedures, or during the hearing itself, Mr Bain would have referred to having jumped from the back of a truck prior to the collapse of the knee in the hut. As I found in my earlier decision, Mr Bain omitted to refer to jumping from the truck in his 1969 claim for compensation, and so the Commission would not have been alerted to that event until at least eighteen months after the date of injury. It is by no means clear that any witnesses to that event would have been able to remember it after that interval of time. I accept that Mr Bain was embarrassed by what had happened and that he said to Sergeant Murphy after he fell that he was all right. On the evidence before me it was an apparently insignificant event likely to have been quickly forgotten by others who witnessed it.
66. I am mindful of the matters deposed to by Mr Ontong as to the disadvantage suffered by the Commission in relation to the inability to obtain contemporaneous medical evidence over the intervening years. Nevertheless, the Commission has obtained a detailed report from Mr Donald Jones, to which I have referred above. On the face of it, this contains a plausible explanation of the cause of the collapse of the knee in the hut, and of the subsequent course of that injury, including the nature of Mr Bain’s present condition. It is also consistent with the limited information as to the operation performed by Mr Betts in January 1975, where there is reference to his having removed loose bodies from the knee.
67. The loss of records led to a number of preliminary issues, but is I think not of much significance in relation to the 1969 claim, since most of the records in respect of that claim appear to have been retained, and I was able to make certain provisional findings of fact on the basis of those records. There are far fewer records available in respect of the 1974 claim, and the prejudice to the Commission is potentially greater in respect of that claim.
68. I consider that in the exercise of my discretion in considering an application for extension of time it is appropriate to take into account that any prejudice to the Commission is to an extent due to fault on the part of its predecessor, or the Army. The Commission was not at fault, but its role is merely to manage claims for injuries relating to defence service that occurred prior to 1 July 2004, and liability is imposed on the Commonwealth (s 145(2)). I refer to the following matters that indicate fault on the part of the Army.
(a)The circumstances leading to Mr Bain’s injury and subsequent hospitalization appear not to have been adequately investigated. The present matter is not like many other extension of time matters where employees make no complaint of an injury, or a particular kind of injury, for a considerable period after the asserted date of its occurrence or the event said to have caused the injury. In this case, it was obvious at the time of the event in the hut that Mr Bain had suffered a significant injury; he was hospitalised the next day for fifty-one days, during which period he underwent an operation. Common sense suggests that there must have been some antecedent injury to or condition of the knee that led to the collapse of the knee in the hut, and Mr Jones’ report confirms that this was so. It seems reasonable to conclude that if the nature of Mr Bain’s injury had been fully investigated by the treating doctors at the time, they would have been in a position to investigate relevant events preceding the event in the hut.
(b)The Commissioner for Employees’ Compensation took just over eighteen months to determine the claim made by Mr Bain in 1969, and this seems to be an inordinately long time. This meant that if there had been an appeal to the County Court, and in consequence a review on the merits, the recollection of witnesses would have been less reliable than would have been the case if the claim had been determined promptly, and as mentioned above, it is likely that by the time of any appeal, witnesses would have been unable to recall the event involving jumping from the truck.
(c)The Army lost part of its records, and it appears that this occurred between December 1975 and June 1976 (see exhibit R13, page 22). I note that in certain earlier cases to which counsel for the Commission referred in supplementary submissions there is no suggestion that prejudice to the respondent should be given less weight on the grounds that the respondent was found to be responsible for the loss or destruction of missing records. However, there appears to have been no proof in the cases referred to by counsel that the entity liable for compensation was responsible for the loss of the records, and the question of discounting prejudice on that account does not appear to have been considered in those cases. The Commission did not seek to pursue an argument that it was not under an obligation not to destroy or dispose of the relevant documents.
(d)Finally, the investigation into the circumstances of the injury appears to have been conducted in a superficial manner; the witness statements, including Mr Bain’s statement, are very brief, and there is force in Mr Bourne’s contention that Mr Bain’s statement was apparently signed on the same day as his operation, when he may not have been in a condition to check that it was accurate or complete.
Extent of Delay
69. The extent of the delay is extreme; it is nearly twenty-eight years in the case of the 1971 determination and more than twenty-four years in the case of the 1975 determination. This is a factor which weighs heavily against the grant of an extension of time.
Public considerations, and fairness as between applicants and other persons
70. Counsel for Mr Bain contended that the Commission’s statutory obligations under the Act put it in a somewhat different position than private employers in relation to applications for extension of time. I do not accept this contention. In Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1, McHugh J said, at 9:
“Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong.” (emphasis added)
The Commission is funded by taxpayers. Its funding allocation is no doubt determined by reference to actuarial estimates of its potential liability, and it has a statutory obligation to determine claims in accordance with the applicable legislation, as is the case with private insurers or employers. The Commission should not in my view adopt a more lenient approach to requests for extension of time for reconsideration of its determinations merely because it is a statutory authority.
71. It was contended for the Commission that the concept of arising in the course of employment has evolved over time, and that the expression was given a narrower interpretation in 1971 and in 1975 than at the present time. However, a more liberal interpretation had evolved by 1962 in Commonwealth v Oliver (1962) 107 CLR 353 and by 1969 in Danvers (supra). In any event, in my view the present matter should be decided by reference to the correct interpretation of the expression, even if that interpretation has evolved over time. That approach is, I think, consistent with the view of Hill J in Brown (supra), where he suggested that an extension of time should be granted in circumstances where a tax objection that would previously have been futile might be successful due to changed court interpretations. Further, the Commission’s contention is not relevant to Mr Bain’s claim to the extent that it is based on the injury having arisen out of employment.
Conclusion
72. Hill J concluded his judgment in Brown (supra) by referring to the need to balance the various criteria which he had identified, and said at [59]:
“In this balancing process the Commissioner or the tribunal on a review will be guided by what the justice of the case requires. The balancing process should be approached on the basis that while Parliament has stipulated a time in which objections are required to be lodged it has entrusted to the Commissioner a power to extend that time in appropriate circumstances. The decision maker should not lose sight of the fact that s 14ZW is an ameliorating provision designed to avoid injustice.”
73. I have carefully considered the principles referred to in the authorities discussed earlier in these reasons, and their relevance to the facts of this case.
74. I find that Mr Bain has not given an acceptable explanation for the delay in appealing against or seeking review of the determination of 26 November 1975. The claim for compensation to which that determination related was for medical and hospital expenses incurred in the period after Mr Bain’s discharge from the Army in July 1971, when he experienced further problems with his knee. Mr Bain rested on his rights and did not pursue his claim for very many years. In all the circumstances I am not persuaded that it would be just to grant an extension of time in respect of the 1975 determination.
75. The position in relation to the 1971 determination is different. Mr Bain has provided an acceptable explanation for the delay in pursuing his claim. The length of the delay is extreme, but in the special circumstances of the present matter, I do not think that the extent of prejudice to the Commission is as great as might ordinarily result from such an extreme delay. If an extension of time is not granted, the applicant will suffer the much greater prejudice of being unable to pursue what on the information presently before me is a meritorious claim. In the special circumstances of this case, and after balancing the considerations to which I have referred above, I am satisfied that it would be just to grant the extension of time sought by the applicant to allow an extension of time for reconsideration of the determination of 19 April 1971.
76. The parties have requested the opportunity to consider whether I should remit this matter to the Commission for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth). The consequence of allowing the request for an extension of time would of course be that the Commission will reconsider the 1971 determination. Nevertheless, I will not issue my formal decision in this matter until the parties have had an opportunity to study these reasons and to make further submissions as they have requested.
Decision
77. The matter is listed before Deputy President D G Jarvis for directions on a date to be fixed.
I certify that the 77 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: ........................................................................
L. Wunderer AssociateDate/s of Hearing 17 July 2008
Date of Decision 21 August 2008
Counsel for the Applicant Mr T Bourne
Solicitor for the Applicant Bourne Lawyers
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent Australian Government Solicitor
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