Barrie Wing and Military Rehabilitation and Compensation Commission
[2014] AATA 859
•20 November 2014
[2014] AATA 859
Division VETERANS’ APPEALS DIVISION File Number
2013/3601
Re
Barrie Wing
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 20 November 2014 Place Adelaide The decision under review is affirmed.
........... [Sgd] ........................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Military rehabilitation and compensation – Claim for bronchiectasis which was diagnosed in 1966 – Whether notice served and claim made within period required by 1930 Act – Whether prejudice to the Commonwealth – Whether mistake, absence from Australia or other reasonable cause – Ignorance – Decision under review affirmed.
LEGISLATION
Commonwealth Employees’ Compensation Act 1930, s 16
Safety, Rehabilitation and Compensation Act 1988, s 124
Compensation (Commonwealth Employees) Act 1971
CASES
Commonwealth of Australia v Connors (1989) 86 ALR 247
Re Hunt and Military Rehabilitation and Compensation Commission [2010] AATA 259Re Long and Comcare [2003] AATA 116
Re Muras and Department of Defence (1998) 52 ALD 579
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Telstra Corporation v Roycroft (1997) 77 FCR 358SECONDARY MATERIAL
Sutherland P, Ballard JO, and Anforth A, Annotated Safety, Rehabilitation and Compensation Act 1988, (10th ed, Federation Press, 2014)
REASONS FOR DECISION
Deputy President K Bean
20 November 2014
The applicant, Mr Wing, served in the Royal Australian Air Force (RAAF) between 25 November 1963 and 25 November 1969.
On 8 April 2010, approximately 40 years after the end of his RAAF service, Mr Wing lodged a claim for compensation for a lung condition he described as “bronchiectasis” and which he claimed to have sustained during his RAAF service.[1]
[1] Exhibit 1, T8/76.
Mr Wing’s claim for compensation was rejected at first instance and on reconsideration, essentially because the relevant decision makers were not satisfied that he had established the requisite causal connection between his service and the claimed condition.
However, on 30 August 2013, Mr Wing applied to this Tribunal for review of the reconsideration decision, giving rise to these proceedings.
In the context of the proceedings before the Tribunal, a new issue was raised by the respondent which had not been referred to in the primary or reconsideration decisions. That issue concerned the lengthy delay between when Mr Wing said he had contracted his lung condition, and when he lodged his claim for compensation.
The respondent has pointed out in the context of these proceedings that the compensation Act which was in force when Mr Wing claims to have contracted his lung condition required claims for compensation to be made within a specified time period, and also required notice to be given to the Commonwealth of any injury within a specified period. The respondent contends that Mr Wing has not complied with the applicable requirements, and for that reason alone his claim for compensation cannot be considered further, and the decision under review should be affirmed.
Since it was appropriate for this issue to be determined before the Tribunal proceeded to consider whether the condition the subject of Mr Wing’s claim was related to his service, a preliminary hearing took place before me on 19 September 2014, directed only to this issue. In the event that Mr Wing was able to establish that his claim met the relevant requirements as to time and notice, it was intended that his substantive application would proceed to a further hearing at which the issue of whether his condition was connected with his service and therefore compensable would be considered.
As the question of whether Mr Wing’s claim for compensation can be further considered depends on the application of the relevant statutory provisions, I will first outline the applicable statutory framework before identifying what I understand to be the issues before me, and proceeding to address those issues.
THE STATUTORY FRAMEWORK
The starting point in outlining the applicable statutory framework is the relevant Act which is currently in force, being the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
Section 124 of that Act contains a number of transitional provisions and provides, in effect, that a person is not entitled to compensation under the SRC Act if compensation was not payable under a previous Act which was in force at the time the relevant injury was suffered.[2]
[2] Subsection 124(2).
On the material before me, it is clear that Mr Wing was diagnosed with and treated for bronchiectasis in or around 1966, and therefore the applicable Act, being the Act in force at that time, is the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act). Accordingly, compensation will not be payable to Mr Wing under the SRC Act unless it would have been payable under the 1930 Act.
As I have alluded to above, in considering whether compensation would have been payable under the 1930 Act, it is first necessary to consider the applicable requirements relating to the timeframe within which that Act required notice of an injury to be given, and/or any claim for compensation to be made. That is because, if Mr Wing has not complied with those requirements of the 1930 Act, compensation will not be payable under the SRC Act.
The applicable provision of the 1930 Act was s 16, and in 1966, s 16 relevantly provided as follows:
16.(1.) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made–
(a) within six months from the occurrence of the accident; or
(b)in 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.
(2.) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
(3.) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.
(4.) In the application of this section, in accordance with section ten, and sub-section (2.) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease–
(a)notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1.) of this section if notice of the contracting of the disease was served on the Commissioner–
(i)in the case of a claim arising out of the death of the employee caused by the disease – as soon as practicable after his death; or
(ii)in any other case – as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, as soon as practicable after his death;
(b)a claim for compensation shall be deemed to have been made within the period required by sub-section (1.) of this section if the claim was made–
(i)in the case of a claim arising out of the death of the employee caused by the disease – within six months after advice of the death was received by the claimant; or
(ii)in any other case – within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death;
(c)a notice shall, for the purposes of sub-section (2.) of this section, be deemed to contain the date at which the accident happened if it specifies the date at which, or period during which, the employee contracted the disease; and
(d)a notice shall be deemed to have been duly served in accordance with the last preceding sub-section if–
(i)it was sent in the manner specified in that sub-section to the Permanent Head or Chief Officer of the Department or authority by which the employee was employed in employment to the nature of which the disease was due or, if he was so employed in more than one Department or authority, to the Permanent Head or Chief Officer of the Department or authority by which he was last so employed;
(ii)it was delivered at the head office of the Department or authority by which he was so employed or last so employed, as the case requires; or
(iii)it was served in any other prescribed manner.
THE ISSUES
It follows from the terms of s 16 of the 1930 Act that the issues for my consideration are as follows:
The Notice Requirements
(a)Whether notice of the “accident” was served as soon as practicable after it had happened and before Mr Wing voluntarily left the employment of the Commonwealth, or as soon as practicable after he first became aware that he was suffering from bronchiectasis; and, if not
(b)Whether the Commonwealth is prejudiced by the absence of timely notice; and, if so
(c)Whether Mr Wing’s failure to give notice within the required timeframe was occasioned by “mistake, absence from Australia or other reasonable cause”.
The Claim Requirements
(d)Whether a claim for compensation was made “within six months from the occurrence of the accident”, or within six months after Mr Wing first became aware that he was suffering from bronchiectasis; and if not
(e)Whether Mr Wing’s failure to make a claim within six months was occasioned by “mistake, absence from Australia or other reasonable cause”.
CONSIDERATION
I propose to deal first with the notice issue, before turning to the issues surrounding the delay in Mr Wing lodging his claim for compensation.
Has Mr Wing complied with the notice requirements in the 1930 Act?
The evidence
Mr Wing gave oral evidence at the preliminary hearing. He said that during his service, in 1965 or 1966, he inhaled fumes from some aviation fuel as a result of being exposed to ruptured drums. He said sometime later he started coughing up “lung”. He said he was admitted to hospital and thought he had done some damage to his respiratory system. He kept coughing for a few days and continued to have “coughing and rubbish on [his] chest.” He said he was ultimately diagnosed with bronchiectasis in 1966[3], and since leaving the RAAF his symptoms have persisted.
[3] This is consistent with the records: Exhibit 1, T8/367, T7/43.
As to whether he had told anybody (apart from the doctors treating him) what had happened, he said he had told his detachment commander, who made a brief note in his diary. He also said that “Medical” had noted it on his documents. He said he had asked for it to be recorded that he had been exposed to aviation fuel fumes (although no such note appears in the medical records which have been provided to the Tribunal).
As to his reasons for not giving formal notice of his “injury” or making a claim for compensation at the time, the effect of Mr Wing’s evidence was that at that time he was not aware of any obligation to give notice, or that he could claim compensation.
However, Mr Wing also acknowledged that after leaving the RAAF in 1969, he wrote to the Office of the Commissioner for Employees’ Compensation in 1971, reporting that he had suffered lung damage during his service and advising that he wished to “submit a claim against the Commonwealth”.[4]
[4] Exhibit 3.
I note that the records also indicate that a claim form was sent to Mr Wing for him to complete and submit, on 7 December 1971, and a reminder was sent on 11 February 1972. However, no claim or other relevant communication was received from Mr Wing until he submitted his claim in 2010.
Was notice given within the required period?
As I am persuaded that a verbal report to treating doctors, or even a senior officer, is not sufficient compliance with subs 16(2) – (3)[5], it follows that Mr Wing did not give notice of his injury until 1971. This was approximately five years after the “accident”, and also five years after he became aware he was suffering from bronchiectasis. Accordingly, it is clear he did not comply with the requirement that he give notice as soon as practicable after the “accident” and before leaving the employment of the Commonwealth, or as soon as practicable after becoming aware that he was suffering from the relevant condition.
[5] See the discussion of some of the relevant authorities in Sutherland P, Ballard JO, and Anforth A, Annotated Safety, Rehabilitation and Compensation Act 1988, (10th ed, Federation Press, 2014), at pp 446 – 447.
The next question which arises therefore is whether the Commonwealth is prejudiced by Mr Wing’s failure to give notice of his injury during the required period. In other words, the issue to be addressed is whether prejudice was caused by Mr Wing’s delay of five years in giving notice of his injury.
Prejudice
With respect to this question, the respondent directs attention to the fact that Mr Wing attributes his lung problems to the inhalation of aviation fuel during his RAAF service. However, the respondent also points to the fact that there is no “available accident or incident report referring to the inhalation of fuel”. The respondent also draws attention to aspects of Mr Wing’s subsequent medical history which may be relevant to the development of his condition, stating “nor is there detailed reference to the circumstances leading to the applicant’s episodes of pneumonia in 1966 and 1968”.[6]
[6] Respondent’s Statement of Facts, Issues & Contentions, [4.12].
The respondent also relies upon the fact that there are no available witness statements or contemporaneous statements obtained from Mr Wing providing an account of the alleged incidents he relies upon. In addition, the respondent says it has not had an opportunity to have Mr Wing medically examined in order to explore any connection between his lung problems and the inhalation of fumes during his service.
The respondent contends that “the absence of any investigation and the subsequent medical records constitute a prejudice to the Commonwealth”. However, the respondent also contends that it is sufficient for the Tribunal to conclude that “it is not satisfied that the Commonwealth is not prejudiced” by Mr Wing’s failure to give timely notice of the accident.[7] In other words, the respondent contends that Mr Wing must satisfy the Tribunal that the respondent is not prejudiced by his failure to give timely notice.
[7] See Re Hunt and Military Rehabilitation and Compensation Commission [2010] AATA 259, at [7].
With respect to this issue, Mr Coxon, who appeared for Mr Wing at the preliminary hearing, contended that there was no prejudice due to the absence of records, as all of the contemporaneous records were available and had been provided. He did not address the other grounds upon which the respondent asserted prejudice, such as the absence of a contemporaneous investigation and the absence of any medical examination of Mr Wing between 1966 and 2010.
Although the argument was not put by Mr Coxon, I have considered whether the absence of any action taken in response to Mr Wing’s notification in 1971 is relevant to the issue of prejudice. If Mr Wing is taken to have given notice of his injury in 1971 (as I consider he should be), and yet this did not give rise to any investigation or medical examination, it could be argued that even if he had given notice in 1966, this would not have elicited any different response, and therefore no prejudice was caused by this delay.
However, I accept the respondent’s contention that, strictly speaking, the question for me is whether I am satisfied that the Commonwealth is not prejudiced by the delay. As to that question, whilst I acknowledge that the contemporaneous records relating to Mr Wing’s service are available, I have concluded that I am not satisfied that Mr Wing’s failure to give timely notice of having sustained bronchiectasis, allegedly as a result of his service, did not cause prejudice to the respondent. Notwithstanding the apparent lack of response to Mr Wing’s notification in 1971, I accept that if formal notice had been given within the applicable period, say during 1966 whilst Mr Wing was still a serving member of the RAAF, it is likely that there would have been some investigation of the causal link he now asserts and/or that he would have been medically examined with that issue in mind. Therefore, I am not satisfied that Mr Wing’s failure to give notice within the required period did not cause prejudice to the Commonwealth.
The next issue accordingly is whether Mr Wing’s failure to give notice as soon as practicable was due to mistake, absence from Australia, or some other reasonable cause which was operative during the time that notice was required to be given.[8]
Was Mr Wing’s failure to give notice due to mistake, absence from Australia or other reasonable cause?
[8] Re Muras and Department of Defence (1988) 52 ALD 579, at 584; Re Long and Comcare [2003] AATA 116, at [28]; and Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665, at 672.
As to his reasons for not giving notice or making a claim earlier, Mr Wing has consistently indicated, in correspondence and in his evidence to the Tribunal, that he did not give notice because he did not realise he had any obligation to do so. Similarly, he did not make a claim earlier because he was not aware that he could do so.[9]
[9] Exhibit 2.
However, the difficulty for Mr Wing is that although “ignorance” was introduced as an excuse for not making a claim earlier by the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act), the case law clearly establishes that the terms “mistake” and “other reasonable cause” used in the 1930 Act do not incorporate “ignorance”[10]. In other words, ignorance of the obligation to give notice or the right to make a claim is not a “mistake” or “other reasonable cause” within the meaning of the 1930 Act.
[10] Re Muras and Department of Defence (1998) 52 ALD 579, at 583 – 584; Commonwealth of Australia v Connors (1989) 86 ALR 247, at 251 – 252; and Telstra Corporation v Roycroft (1997) 77 FCR 358, at 364 - 365.
As Mr Wing was not absent from Australia at any relevant time and has not put forward any other reason which could be regarded as a “reasonable cause” for his failure to give notice within the required period, it follows that he did not give notice within the time required by s 16 of the 1930 Act, as in force at the relevant time.
In light of this conclusion, it is not strictly necessary for me to proceed to consider whether Mr Wing’s claim for compensation complied with the requirements of s 16. However, for completeness, and in case I am wrong in concluding that Mr Wing did not give the required notice, I will also address the claim issue.
Does Mr Wing’s claim for compensation comply with the requirements of s 16?
There is no dispute that Mr Wing did not lodge a claim for compensation within six months from “the occurrence of the accident” in 1965 or 1966, or within six months of becoming aware that he was suffering from bronchiectasis, given that he also became aware of this in 1966.
In these circumstances, it follows from the terms of s 16 that Mr Wing’s claim can only be admitted if his failure to make a claim within the required period was occasioned by “mistake, absence from Australia or other reasonable cause”. However, for essentially the same reasons as those outlined above with respect to the notice question, it is clear that Mr Wing’s failure to make a claim within the required period was due to ignorance rather than “mistake”, “other reasonable cause” or “absence from Australia”. Accordingly, Mr Wing’s claim for compensation also does not satisfy the requirements of s 16 of the 1930 Act.
CONCLUSION
It follows that as Mr Wing’s claim could not have been admitted under the 1930 Act, compensation is not payable under the SRC Act. It is therefore unnecessary for this Tribunal to proceed to consider whether or not the requisite causal connection exists between Mr Wing’s claimed condition and his RAAF service.
In these circumstances, I have concluded that it is appropriate for me to make a decision affirming the decision under review, which refused Mr Wing’s claim for compensation.
I should stress that I have reached that conclusion purely on the basis that I am not satisfied that Mr Wing has met the requirements of s 16 of the 1930 Act, and not because of any conclusions I have reached as to whether there was or was not a relationship between Mr Wing’s bronchiectasis and events during his service. For the reasons I have given, I simply have not considered that issue as it has not been necessary for me to do so.
DECISION
The decision under review is affirmed.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ....... [Sgd] .........................................
Associate
Dated 20 November 2014
Date of hearing 19 September 2014 Advocate for the Applicant
Mr R Coxon Counsel for the Respondent Mr B Dubé Solicitors for the Respondent Sparke Helmore Lawyers
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