Barratt and Military Rehabilitation and Compensation Commission

[2004] AATA 1141

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1141

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION            N2003/1918

Re: Geoffrey BARRATT

Applicant

And: MILITARY REHABILITATION and COMPENSATION COMMISSION

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             2 November 2004

Place:            Sydney

Decision:      The tribunal affirms the reviewable decision.

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

P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS

COMPENSATION – applicant’s under age drinking while in RAAF - drinking led to alcohol dependence and then to decompensated cirrhosis of liver- applicant’s employment not a contributing factor to his drinking  - decision affirmed.

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 Schedule 2

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 7(4), 53

Law v Repatriation Commission (1980) 29 ALR 64

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Comcare v Luck (1999) 29 AAR 403

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      This is an application by Geoffrey Barratt for review of a decision made on 30 October 2003 by Comcare (on behalf of the Department of Veterans’ Affairs) to deny liability under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for cirrhosis of the liver. The reviewable decision stated the applicant’s military service did not contribute in a material degree to the causation, aggravation, acceleration or recurrence of his condition (T23 in the documents lodged with the tribunal under s.37 of the Administrative Appeals Tribunal Act 1975) .

background

2.      Mr Barratt was born on 5 November 1956.  He enlisted in the Royal Australian Air Force on 7 February 1974 at age 17 and was discharged on 9 July 1976.  On 8 July 2003 he lodged a claim for compensation in respect of “liver disease/hepatitis/yellow jaundice/lower back pain” (T13).  He completed the claim form by indicating that he thought his employment contributed to his illness in the following way: “cult of encouragement in RAAF – bond with fellow airmen – drink alcohol – smoke – mateship peer pressure.”  He attached a statement (dated 8 July 2003) to the claim in which he said:

I joined the RAAF at the age of 17 years and 3 months. I was one of three recruits under the age of 18 years. We all bunked together and were encouraged to eat, sleep and drink together to form a bond of mateship, which we were told would only go to help the service.  Although we (the three 17 year old recruits) were told by our superiors and trainers that we were not allowed to attend the boozer bar on camp and partake of intoxicating liquor because of our age, they all turned a blind eye to us attending the boozer and drinking alcohol.  I believe this was all to do with their encouragement of bonding, which included peer pressure from your fellow recruit and the fact that you were confined to base. …

After I finished recruit training, the mateship bonding just became a part of everyday life and the drinking of alcohol became second nature to me.  So much so that I believe that by the time I was 18 years old I had a drinking problem.  However, I kept that belief to myself, did my work during the day and drank with my mates of an afternoon/evening.  Each day was the same.  … (T14)

3.      Mr Barratt’s statement referred to his being charged with culpable driving as a consequence of driving a car while intoxicated and his passenger being killed when he lost control of the car.  He was 18 years and 9 months at the time.  On 9 April 1976 the District Court sentenced him to two years hard labour, with a non parole period of nine months that he served in Cessnock gaol.  He was discharged from the RAAF.  He believed he would be permitted to re-enlist on release from gaol. However, on enquiry after release, he was informed by the RAAF that he would have to re-apply for enlistment and, if successful, undertake full training again.  He said he thought this was further punishment and felt the RAAF was trying to stop him from rebuilding his life.  His statement reads:

I immediately returned to my habit of drinking to excess in an effort to cope with the new pressures I had just encountered over rejection by the RAAF to return me to my previously trained position. … I then obtained various labouring jobs … I never remained in any one job for any length of time, until my last job with the Electricity Commission.

My drinking problem never went away, it has continued with me since the day I joined the RAAF at the age of seventeen (17). …

My drinking has reached a stage where it is now life threatening and I still cannot stop drinking.  …

I firmly believe that had not the RAAF encouraged me to partake of alcohol when I joined (at the age of 17) I would not be in the state I am today.  …

Also if the culture of the RAAF had not encourage me to drink alcohol, through peer pressure and perceived mateship, where I was told true bonding was formulated through drinking with mates.  I would not have the drinking problem, which led me to have the accident, which resulted in the death of my colleague and friend.  Further, I would not have the drinking problem I have today and would have stayed on and completed my six-year engagement with the RAAF. …

4.      The compensation claim was refused by determination dated 30 July 2003.  The reason given was that consumption of alcohol was considered to be a matter of personal choice.  It could not be said that drinking alcohol was reasonably required, expected or authorised by the Defence Force in order for the member to carry out his duties (T18). On reconsideration, the determination was affirmed in a decision dated 30 October 2003 and it is that decision which is under review in the instant proceeding.

evidence

5.      Mr Barratt said that his father served in the RAAF. The family lived on the RAAF base at Butterworth, Malaysia in the years immediately preceding his enlistment in February 1974. He studied for the School Certificate (year 10 level) at the RAAF school at nearby Penang. 

6.      While still at school Mr Barratt said he was drinking alcohol, mainly after football matches. He played for both a school team and an RAAF team.  He said he would have a couple of beers following a game. At times he would go into a civilian bar to buy a carton of canned beer to drink with his group of football friends.  In explaining his decision to drink, he said everyone else was drinking, so he joined in. But he added that no one from his group forced him to drink and sometimes he suggested they have a drink. He said he liked the taste of beer.

7.      On enlistment in the RAAF, Mr Barrattt did his basic training, a ten week course, at RAAF Edinburgh in South Australia.  He described himself as being more mature than other 17 year olds because of having knocked around with RAAF people who were a lot older than him.

8.      Mr Barratt said that during this posting he used to drink alcohol every night. He would go to the recruits tavern, also referred to as the boozer bar, which was open three or four nights a week. Even though he was under the minimum legal age to be served alcohol, Mr Barratt would go to the bar and drink up to 12 -14 ten oz. glasses of beer. He recalled only one occasion of being told not to drink at the bar. Despite the warning, he continued to go there. He would be seen there by superiors but not asked to leave.  On occasions, corporals and others would buy cans of beer from the airmens club on base for Mr Barratt and his mates to drink in barracks.  The corporal from his own section would join them for drinks. He said the alcohol he bought on base was cheaper than in hotels. 

9.      While Mr Barratt said that drinking was encouraged, as it was part of bonding among recruits, he did admit that he was not ordered or compelled to drink. Mr Barratt explained that the peer pressure he referred to in his statement involved colleagues inviting him to go drinking with them in the recruits tavern. He said that during the week, he was not allowed off base. If he did not go drinking on those nights, he would have been left on his own because there was nothing else to do on base.  On weekends, he and friends would go into town to patronise the hotels in Elizabeth and sometimes in Adelaide.

10.     Mr Barratt recalled that on a few occasions, while returning to Edinburgh base from the rifle range, the RAAF bus would stop at a pub.  An officer, corporal and twenty or so recruits, including the applicant, would have a drink in the pub. He was never told by his superiors that he should not go with them into the pub.

11.     After completing recruit training Mr Barratt was posted to Wagga Wagga for approximately eight weeks.  He was still 17. He said no one challenged him when he went drinking every night at the airmens club on base.  At this point, he said he was drinking about 12 fifteen oz. glasses of beer a night.  From there he was posted to Williamtown as a general hand. Again, though still under age, he had ready access to alcohol by visiting the airmens club on base. With his friends, he would also visit hotels in nearby Stockton and Newcastle.  He experienced no trouble getting into the hotel.  During his time at Williamtown, an officer gave him a warning about coming to work smelling of alcohol. But otherwise he said his drinking did not appear to upset his superiors.

12.     Mr Barratt said he largely stopped drinking while he was in gaol, though he could still manage to obtain alcohol, which he did roughly about once a fortnight.  But he would not get drunk. He was discharged from the RAAF while he was in gaol.  He knew that the RAAF would be impressed if his behaviour in gaol was good and this would help his chance of re-enlistment. On release, he immediately began drinking on a daily basis throughout his parole.  His drinking has continued to date.

13.     Mr Barratt has been receiving the disability support pension for over five years. Shortly before he began to receive the pension, he became quite ill.  He said that was the first he knew that he had a problem with his liver.  He applied for a disability pension under the Veterans’ Entitlements Act 1986 in June 2001.  That application included a diagnosis of cirrhosis of the liver by his GP, Dr John Heard, who stated that the applicant first consulted him about the condition in January 1999 when he was suffering from jaundice and back pains (T9-30). The applicant has since been told by Dr Heard that he will not be able to work again.

14.     At the request of his solicitors, Mr Barrattt was examined by Dr F Harding Burns, consultant physician, on 17 March 2004.  Dr Burns was formerly Director of Drug and Alcohol Services at Royal Prince Alfred Hospital and Concord Hospital. In his report dated 23 March 2004 (exhibit A1), Dr Burns noted a family history of social drinking by the applicant’s parents. Dr Burns reported that the applicant said alcohol was not a factor in either of his divorces and that alcohol had not interfered with his work, whether in the RAAF or the more recent employment. He reported that the applicant currently drinks every day, having four schooners before lunch and another four schooners from 4.30pm and takes two bottles of beer home.  Half of the drinks are light alcohol, so this level of consumption converts to around 12 to 15 standard drinks a day. He often wakes up at night in a sweat. During the past four years Mr Barratt has had hepatitis and six recurrences of jaundice. His doctors have told him to abstain, which he has managed on two occasions, each period lasting around six months. He takes a liver guard tablet and a vitamin capsule daily, on the recommendation of a herbalist.

15.     Dr Burns made a diagnosis of the applicant’s liver condition as decompensated cirrhosis.  He referred to the correspondence that Mr Barratt received from RAAF colleagues and friends while he was in Cessnock gaol and concluded the letters supported the applicant’s contention that drinking and smoking were part of service culture.  In Dr Burns’ opinion

It would be hard to determine exactly when he would have first manifested dependence, but it could have been in his early twenties.  He now has severe alcohol dependence of long duration. …

In summary, the lifestyle to which Mr Barratt became accustomed during his service in the RAAF, and the associated learned behaviours, which carried over into his civilian life, have made a major contribution to the subsequent development of alcohol dependence and alcoholic liver disease (decompensated cirrhosis). Earlier intervention, before the development of dependence, may have enabled him to either abstain or modify his drinking to avoid harmful alcohol-related disabilities.  Mr Barratt must ultimately take responsibility for his drinking, but the influence of earlier learned behaviours on his subsequent drinking history cannot be denied.

16.     The respondent arranged for Professor Richard P Mattick, consulting clinical psychologist and Director of the National Drug and Alcohol Research Centre in Sydney, to review and comment on Mr Barratt’s RAAF service documentation. Those documents are in evidence (exhibit R3) and include details about Mr Barratt’s applications for enlistment, reports about his failing subjects in the training course and disciplinary matters.

17.     Professor Mattick referred to the applicant’s suspension from the training course in June 1974 due to failing a number of subjects and noted that he was permitted to visit his family overseas in December 1974, his failure having been of concern to them.  It was thought the visit might assist in his transition to service life. The applicant then was re-mustered as a general hand.

18.     There was a reference in the applicant’s file to being formally warned by the RAAF in March 1975 about behaviour associated with the use of drugs by a number of personnel that had come to the attention of the service police. The Record of Warning referred to his admission about being drunk at the time and noted that “ … had Barratt not been under the influence of alcohol at the time of the alleged offence, he would not have been tempted by his older and irresponsible cohorts, some of whom have been subsequently dealt with by civil authority.  … Furthermore, AC Barratt has been clearly cautioned that a transgression of any kind will result in the submission of an immediate adverse report” (exhibit R3).

19.     His post-service employment included positions as a labourer, cleaner and dockhand. There were two charges of driving under the influence of alcohol in the 1990s. Professor Mattick’s impression from the papers was that Mr Barratt had some alcohol related problems in his late teenage years after commencing to drink, but he also had some difficulties before that time, including his unsuccessful application for the RAAF apprentice intake in 1973, not impressing the recruiting officer with his potential for technical training, his poor performance in the year 10 School Certificate and failing a number of training courses. 

20.     Professor Mattick agreed with Dr Burns that the applicant’s alcohol dependence probably began in his early 20s. He thought the applicant was not alcohol dependent prior to the motor vehicle accident and that despite probably having some access to alcohol in gaol, if he had significant period of abstinence it would have intervened to help him overcome any habitual use of alcohol. Professor Mattick stated his conclusion as follows (exhibit R1):

In summary, Mr Barratt has met criteria for alcohol dependence and suffers significant physical disease.  He may have commenced drinking during service but alcohol dependence was not apparent for many years. He had significant life problems which were not associated with service, including his low average ability, his educational failure at school, his failure in training in service, the fact that his parents were obviously disappointed with him, his immaturity, and the death of his co-worker. He was depressed and confused after he was parolled from jail and told that he would have to reapply and undergo further training to rejoin the RAAF. Thereafter he worked in labouring jobs, had two marriage failures, probably lack of access to his children, two charges of driving under the influence of alcohol and he lived alone in a pub. I do not see that his brief period of drinking during service could be held responsible for ongoing drinking through his life.

21.     In evidence at the hearing, Dr Burns thought the applicant’s drinking up to the time of his imprisonment was regular and at harmful levels, and that he was then at a very high risk of developing dependence. Dr Burns added, however, that dependence is reversible in its early stages. He considered that an organised intervention by the RAAF had been required if the applicant’s drinking was to be curtailed. He disagreed with Professor Mattick’s view that the applicant’s experiences in the service would have had only a temporary effect on his drinking habit. Instead he considered the applicant became accustomed to a lifestyle of heavy drinking while in the RAAF. 

consideration and findings

22.     I find that Mr Barratt suffers from decompensated cirrhosis of the liver. On the basis of Dr Heard’s note in June 2001, it would appear that the condition was present from around January 1999. The consumption of harmful levels of alcohol is likely to have contributed to that condition. Mr Barratt has had an alcohol dependence from his early 20s.

23.     The applicant submitted that decompensated cirrhosis of the liver is an “ailment”, being a defect or morbid condition (refer to s. 4(1) in the Act) and thus a disease. Contraction of decompensated cirrhosis of the liver can be compensable if the condition is found to be a “disease”, a term defined in s. 4(1) as follows: 

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

24.     The case was argued on the basis that the Compensation (Commonwealth Government Employees) Act 1971 had no bearing on the matter and that the Act applied. That would seem to be right.  Subsection 7(4) of the Act provides that an injury being a disease, or an aggravation of a disease, will be deemed to have been sustained on the day when the employee first sought medical treatment for the disease, or the disease resulted in incapacity for work or impairment, whichever occurred first.  According to the claim form for a veteran’s disability pension (T9), Mr Barratt first sought medical treatment for his cirrhosis of the liver when he was examined by Dr Heard in 1999. I find, therefore, that he did not suffer from decompensated cirrhosis of the liver prior to 1 December 1988 when the Act came into effect.

25. As Mr Barratt was a member of the defence force, s. 5(2) of the Act becomes relevant. It is necessary to set out both ss.5(1) and (2):

Employees

(1) In this Act, unless the contrary intention appears:

…

employee means:

(a) a person who is employed by the Commonwealth or by a Commonwealth       authority, whether the person is so employed under a law of the        Commonwealth or of a Territory or under a contract of service or apprenticeship; or

(b) a person who is employed by a licensed corporation.

Without limiting the generality of subsection (1):

(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee (all within the meaning of the Australian Federal Police Act 1979); or

(b) a member of the Defence Force; or

…

shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person's employment shall, for those purposes, be taken to be constituted by the person's performance of duties as the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, by the person's performance of duties as such a member of the Defence Force or by the person's performance of the duties of that office, as the case may be.

26. Ms Henderson for the respondent submitted that by reason of s. 5(2) of the Act, the focus of an application for compensation under the Act as opposed to a claim for disability pension under the Veterans’ Entitlements Act 1986, is on the applicant’s performance of duties as such a member of the Defence Force. I accept that submission. The subsection specifically refers to members of the Defence Force and clarifies what constitutes their employment that for the purposes of the Act. 

27.     Mr Vincent, counsel for the applicant, submitted that while Mr Barratt was living on base and not of legal drinking age, his employer provided him with a ready availability to alcohol at preferential prices. It was submitted that, as the applicant lived on base he could not get away from the pressure cooker environment and could not remove himself from the expectation of the RAAF that he bond with his colleagues by drinking in the tavern or in barracks.  Mr Vincent submitted that the applicant’s superiors in effect paid only lip service to the warning referred to in his statement that, as he was under age, he was not to attend the recruits tavern and consume alcohol. The applicant’s colleagues put pressure on him to drink, as did his superiors on the trips back from the rifle range when they stopped in at the pub. It was an environment that encouraged him to drink. The circumstances of employment thus contributed to Mr Barratt’s starting to drink alcohol at harmful levels and led to his later developing an alcohol dependence and ultimately cirrhosis.

28.     Further, it was submitted that any suggestion that the applicant’s drinking was a result of his exercising personal choice should be rejected and reference was made in that regard to Law v Repatriation Commission (1980) 29 ALR 64. Contrary to that, Ms Henderson submitted that in the context of a claim under the Act, cases such as Law should be treated with caution because of the causal standard being beyond reasonable doubt, not the balance of probabilities standard as is applicable in this matter. I accept that submission. Law’s case can also be distinguished on the facts, as the veteran’s smoking in that case was found to have been a form of relief from the privations and stress endured while being held in a prisoner of war camp.

29.     I am satisfied that before joining the RAAF, Mr Barratt was already familiar with the custom of group drinking after group activity.  He would buy beer for that purpose and he liked drinking beer. He was also in an RAAF football team before enlistment and he would drink with his team mates. Notably, in evidence he thought he was more mature than other rookie recruits because he had knocked around with RAAF fellows in Malaysia who were a lot older than him. In cross-examination, he said that no one forced him to go drinking when someone on base made that suggestion. Indeed, he would sometimes suggest to his colleagues that they go drinking. I find that living on base provided him with the opportunity to carry on with his social drinking.

30.     The impression I have formed is that Mr Barratt was not an innocent 17 year old, unfamiliar with the worldly habits of older servicemen.  Blood alcohol tests at the time of the fatal car accident disclosed readings of 0.235 for both the applicant and the deceased passenger (exhibit R3). Taking account of that very high reading, it is possible that the applicant did consume alcohol at the levels he claimed during his drinking sessions: 13 standard drinks while posted at Edinburgh and 15 to 20 standard drinks later at Wagga. But I am persuaded by Professor Mattick’s opinion that if this heavy rate of consumption is accepted, the applicant would probably have had a high level of tolerance to alcohol before enlistment. I do not accept the applicant’s submission that his drinking while in the RAAF was the consequence of peer pressure or availability of cheaper beer.  I find that his drinking behaviour while in the RAAF, had been made easier for him, as Dr Burns said, by his pre-service experience of drinking. 

31.     There was little evidence concerning the scope of Mr Barratt’s duties, apart from noting that he was required to attend a number of training courses and sit for examinations, which he did with varying degrees of success.  While doing so, he lived on base. He also had rifle training. Although concerned with s. 29 of the 1971 Act, the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 made the following observations in relation to whether employment is a material contributing factor to contracting a disease or aggravating a disease:

… once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree.  The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease.  In all cases the question is whether there has been a "contribution". … All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause.  If they are not, then, they do not "contribute". (at 323)

32.     As he noted in his statement, Mr Barratt said he would drink in the afternoon or evening, once his duties had been completed. The statement refers to being told not to go to the recruits tavern to drink.  His oral evidence was to a similar effect, though he insists there were only two occasions when he was directly cautioned about drinking and there was no effective follow up.  His clear evidence, however, was that he was never ordered to drink alcohol.  The applicant was not required to drink alcohol in the performance of his duties.  Although he was drinking on base, he was not then carrying out his employment duties as a member of the Defence Force, rather it happened in his free time and in his private capacity. Whether or not his superiors saw him drinking in the tavern or in the barracks and did nothing to stop his drinking, does not make the employment a contributing factor to the contraction of the cirrhosis because the drinking was not required of him by his employer.

33.     In exercising his personal choice, Mr Barratt decided that he would spend his recreational time by joining in the drinking. He liked beer. He could have declined to join the invitation to visit the recruit tavern or he could have gone to the recruit tavern with his colleagues but consumed non-alcoholic beverages. Further I am satisfied that even when he joined in the drinking at the pub on returning from the rifle range, which may have happened in the course of his employment duties, there was no obligation on him to drink. There is no basis to the contention that the employment made any contribution to Mr Barratt’s decision to drink alcohol and in the quantity that he consumed. I am not satisfied on balance that any characteristic or feature of Mr Barratt’s duties, which were largely to do with training in administration, correspondence and filing, contributed to his drinking.

34.     Even if I had have come to the contrary conclusion and found for the applicant on this point, it would still be necessary to find that Mr Barratt’s drinking while a member of the defence force made a material contribution to his alcohol dependence and ultimately his cirrhosis. Dr Burns said that he did not get a history of symptoms indicating alcohol dependence while the applicant was in gaol. Both experts agreed that at the time Mr Barratt went into gaol, his condition was reversible. However, on release from gaol he resumed his drinking for reasons unassociated with his former employment duties. I am satisfied that the nine month period that the applicant spent in gaol, brought to an end any habituation to alcohol that may have developed in the two years or so that he was a member of the RAAF.

35.     I find therefore that Mr Barratt’s employment in the RAAF was not a contributing factor to his contracting decompensated cirrhosis of the liver.  In view of this finding, the issue regarding the application of s.53 of the Act, which has to do with giving written notice of an injury as soon as practicable after becoming aware of it, becomes academic.  Nevertheless I will address the matter briefly.

36.     Section 53 of the Act provides:

Section 53 Notice of injury or loss of, or damage to, property

(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

(a) as soon as practicable after the employee becomes aware of the injury; or

(b) if the employee dies without having become so aware or before it is                practicable to serve such a notice—as soon as practicable after the employee's death.

…

(3) Where:

(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;

(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and

(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;

the notice shall be taken to have been given under this section.

37.     Mr Barratt said he has been aware of problems with his liver for about five years, back to his consultation with Dr Heard in January 1999.  He has received disability support pension since around that time. He has made claims for pension under the Veterans’ Entitlements Act 1986 in relation to his liver disease in 2001 and 2003, but did not give notice of the disease to the respondent until he lodged his claim for compensation on 8 July 2003, which I accept can amount to notice of the injury (Comcare v Luck (1999) 29 AAR 403). I find that, as there was a delay of greater than three years, Mr Barratt did not give notice to Comcare, the relevant authority and the predecessor of the respondent (see Schedule 2 to the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004) as soon as practicable after learning that he had the liver condition.

38.     His evidence referred to having a basic knowledge about rights to workers compensation but little about the rights under the Act.  There was no evidence, however, of the respondent being prejudiced if the claim was accepted as being treated as notice of the injury. Thus I find that notice of the disease is taken to have been given in accordance with s.53 of the Act. Despite this finding, for the reasons given earlier, the reviewable decision is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:

Signed:         .....................................................................................
  Associate

Date of Hearing  5 July 2004
Date of Decision  2 November 2004
Counsel for the applicant  M Vincent

Counsel for the respondent  R Henderson