Boothman and Military Rehabilitation and Compensation Commission
[2004] AATA 1002
•17 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/56
GENERAL ADMINISTRATIVE DIVISION ) Re ERNEST BOOTHMAN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
INTERIM DECISION
Tribunal Mr M J Allen, Member Date17 September 2004
PlacePerth
Decision The decision of the Tribunal is that:
(a) The requirements of s 53(1) of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) were satisfied.
(b) The claim made by the applicant in 2001 is deemed to have been served in accordance with s 54 (1) of the 1971 Act.
(c) The journey made by the applicant satisfied the requirements of
s 34 (2) and (4) of the 1971 Act and is deemed to be a journey for the purposes of s 32(1) of the 1971 Act.
(d) The proceedings are to be listed for further hearing to enable the parties to make submissions on the remaining issues to be determined.
…...........(sgd M J Allen).....................
Member
CATCHWORDS
COMPENSATION - Applicant was a soldier and was travelling in his personal motor vehicle from Western Australia to New South Wales during a period of approved leave in 1980 to take up a new posting at a new base – applicant suffered injuries when his vehicle overturned whilst being driven by an unlicensed driver – after treatment by military medical staff the applicant went absent without leave and was subsequently discharged from the army without completing his treatment for the injuries – no claim for compensation made until 2001 – consideration of preliminary issues – consideration of whether notice of the injury had been given in accordance with s 53 of the 1971 Act – conclusion that notice had been given – consideration of whether the failure to make a claim for compensation before 2001 resulted in prejudice to the Commonwealth or resulted from ignorance, from mistake or from any other reasonable cause – conclusion that the failure to make a claim did prejudice the Commonwealth but the failure to claim was the result of mistake or other reasonable cause – consideration of whether the applicant’s journey satisfied the requirements of s 34(2) and s 34(4) of the 1971 Act – travel by private vehicle was the last means of transport available to the applicant that satisfied the requirements of of s 34(4) of the 1971 Act – preliminary issues determined in applicant’s favour – matter to resume for the making of submissions on other issues to be determined.
Safety, Rehabilitation and Compensation Act 1988 s 124
Compensation (Commonwealth Government Employees) Act 1971 ss 27,32,33,34,36,53,54
Compensation (Commonwealth Employees) Regulations r 15
Banks v Comcare [1996] FCA 382
Commonwealth v Duncan (1982) 44 ALR 249
Gregory v Comcare (1997) FCR 196
Hatzimanolis v ANI Corporation (1992) 173 CLR 473
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Re James and Commonwealth of Australia (1983) No. N82/272
Re Maunder and Commonwealth of Australia (1983) 51 ALR 44
Re Muras and Department of Defence (1998) 52 ALD 579
Re Siemsen and Comcare [1999] AATA 871
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382
Telstra Corporation Limited v Roycroft (1997) 47 ALD 671
Thiele v Commonwealth (1990) 22 FCR 342
Whittaker v Comcare (1998) 28 AAR 55
REASONS FOR DECISION
17 September 2004 Mr M J Allen, Member 1. In these proceedings Mr Ernest Boothman (the applicant) has applied for review of a decision made by a delegate of the respondent on 6 February 2002 (affirming an earlier determination made on 17 September 2001) that the respondent is not liable to pay compensation to the applicant for the consequences of a neck injury incurred by the applicant in a motor vehicle accident in September 1980. For reasons referred to in para [ ] below, these reasons for decision deal with a number of preliminary issues.
2. At the hearing of the proceedings the applicant represented himself and the respondent was represented by Mr Lenczner of counsel. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T67) and Exhibits A1-A4 tendered by the applicant and Exhibits R1-R9 tendered by the respondent. The applicant gave oral evidence, as did Dr Peter Woodland, Dr Nick Batalin, Mr Paul Ontong and Mr Desmond March.
Background
3. Much of the background to the proceedings was not in dispute and the following findings of fact can be made. The applicant was born in January 1962 and enlisted in the Australian Army in April 1980. After approximately 3 months basic training at Kapooka and a further 3 months training as a driver at Puckapunyal, in September 1980 the applicant was posted from Puckapunyal (which is in Victoria) to Holsworthy, which is in New South Wales.
4. Prior to taking up his new posting at Holsworthy, the applicant was granted a period of leave to return to Western Australia to see his parents, who lived in Kalgoorlie, and to enable the applicant to collect his personal motor vehicle in Western Australia and drive it back to his new posting in New South Wales.
5. On the night of 18/19 September 1980 the applicant’s motor vehicle overturned on the Nullabor plain and the applicant suffered a neck injury. He was taken by a passing truck driver to a nearby settlement and from there by ambulance to Ceduna in South Australia, where he was admitted to hospital until 22 September 1980. On that day he was transferred to a military hospital in Adelaide where he remained until approximately 30 September, when he was transported to Holsworthy. In Adelaide he was identified as suffering from a severe neck strain. On about 17 October 1980 the applicant was admitted to a military hospital in New South Wales. X-rays taken on 23 September 1980 and 17 October 1980 identified no particular abnormalities or fracture of the cervical vertebrae. However, on 27 October 1980 a fracture of the odontoid peg was identified. The applicant wore a neck brace for approximately 8 weeks following the motor vehicle accident and was employed on sedentary duties. At about the end of January 1981 the applicant went absent without leave (AWOL) from the Army and returned to Western Australia. He never returned to the Army. According to Tp3 his resignation from the Army was accepted on 13 March 1981 and to Tp84 it was accepted on 13 May 1981 after he was posted as an “illegal absentee.”
6. Over the next two decades the applicant engaged in a variety of occupations, some of which involved heavy manual labour, and a number of strenuous sporting activities.
7. In January 2001 the applicant applied to the Department of Veterans’ Affairs for a disability pension and in February 2001 applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”), claiming for an injury or illness that was described as “broken odontoid”. In a determination dated 17 September 2001 (T62) a delegate of the respondent determined that the Commonwealth is not liable to pay compensation for the injury under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) because the injury had not arisen out of or in the course of the applicant’s Army service - on the basis that the applicant was not doing something reasonably incidental to his Army work or something that he was required, expected or authorised to do in order to carry out his Army duties - and also because the provisions of the 1971 Act regarding journeys were not satisfied. Following a request for reconsideration that decision was affirmed for similar reasons.
Statutory Framework
8. The applicant’s claim for compensation was made under the 1988 Act. Because the applicant’s injury was suffered prior to the commencement date of the 1988 Act (1 December 1988), the applicant would be entitled to compensation under the 1988 Act only if “… compensation was, or would have been, payable to [him] in respect of that injury, loss or damage under … the 1971 Act”: s 124(1A) of the 1988 Act.
9. Section 27(1) of the 1971 Act relevantly provides that the Commonwealth is, subject to that Act, liable to pay compensation in accordance with that Act if “… personal injury arising out of or in the course of the employment of an employee by the Commonwealth …” is caused to the employee.
10. Subsection 27(3) relevantly provides that the Commonwealth is not liable under s 27(1) to pay compensation in respect of an injury to an employee that “… is attributable to [the employee’s] serious and wilful misconduct … unless the injury results in the death or serious and permanent disablement of the employee”.
11. Sections 32 to 36 of the 1971 Act contain provisions dealing with particular types of journeys made by an employee, which are to be treated “… as if the journey constituted part of [the employee’s] employment by the Commonwealth”: s 32(1). Further reference will be made below to the terms of these provisions.
12. Section 53(1) of the 1971 Act relevantly provides that the Act does not apply in relation to an injury caused to an employee “… unless notice in writing of the injury was served, as prescribed, on the Commonwealth –
(a)as soon as practicable after the occurrence of the injury;
(b)if the employee was not, immediately after the injury, aware that he had sustained an injury – as soon as practicable after he became so aware; or
(c) …”
Subsection 53(4) provides that where
“… (a) a notice purporting to be a notice referred to in [s 53(1)] has been served on the Commonwealth;
(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of [s 53(1)]; and
(c) the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted … from ignorance, from a mistake or from any other reasonable cause,
the notice shall be deemed to have been served in accordance with [s53(1)].”
13. Section 54(1) relevantly provides that compensation in relation to an employee is not payable under the 1971 Act to a person “… unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period”. Subsection 54(2) relevantly provides that the prescribed period for the purposes of s 54(1) is, in relation to an injury, the period of 6 months commencing on the day of the injury or, if the claimant was not, immediately after the injury, aware that he had sustained an injury – the period of 6 months commencing on the day on which he became so aware. Subsection 54(6) relevantly provides that where a claim has been made that failed to comply with the requirements of s 54(1) regarding the time or manner of service, then the claim shall be deemed to have been served in accordance with that subsection if
“… the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, 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…”.
14. Prior to the hearing of these proceedings the position of the respondent was that, on the facts, the present medical condition of the applicant’s neck is such that it is not a consequence of the September 1980 accident. However, even if that were to be the case, the Commonwealth would have no liability to the applicant for compensation in respect of that accident for the following reasons;
(a) the injury suffered in the 1980 accident did not arise out of or in the course of the employment of the applicant by the Commonwealth – either by reference to general principles or by reference to the “journey” provisions of s 32 to s 36 of the 1971 Act;
(b)the injury suffered by the applicant in 1980 was attributable to his serious and wilful misconduct pursuant to s 27(3) of the Act and hence the Commonwealth had no liability to pay compensation; and
(c)the applicant failed to give notice of, and make a claim in respect of, the 1980 injury within the times referred to in s 53 and s 54 of the 1971 Act; the respondent was prejudiced thereby; and the provisions of s 53(4) and s 54(6) that would permit the applicant’s 2001 notice and claim to be treated as having been properly made do not apply.
15. At the completion of the oral evidence at the hearing Mr Lenczner advised me [transcript P -252] that the respondent would not rely on the issue of serious and wilful misconduct – and so it is not necessary to consider that issue further. However, it was agreed at the hearing that issues (a) and (c) above would be dealt with by the Tribunal first. If either of those two matters is found in favour of the respondent then the applicant’s claim must fail. If both the above matters are found in favour of the applicant then the hearing of the proceedings would resume so that the parties could make submissions regarding the applicant’s present medical condition and the degree of connection or otherwise between the present condition and the injury suffered in 1980. Accordingly, this decision and the reasons for it deal only with the two issues referred to above.
Did the 1980 injury arise out of or in the course of the applicant’s employment?
16. The September 2001 determination to deny liability for the applicant’s claim (T62) stated that:
“To satisfy the requirement that the injury arose out of, or in the course of , your service, it must be shown that at the time the injury was sustained, you were doing something reasonably incidental to that work or doing something that you were required, expected or authorised to do in order to carry out your duties.”
17. It is not suggested that the applicant’s injuries “arose out of" his employment because of the absence of any causal connection with his work duties. The test described in [16] above reflects that expressed by Dixon J (as his Honour then was) in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133 in relation to the “course of employment:” i.e. “… something he was reasonably required, expected or authorised to do in order to carry out his duties…”
18. In Hatzimanolis v ANI Corporation (1992) 173 CLR 473 at 484 a majority of the High Court said that:
“…it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way…”.
19. In Gregory v Comcare (1997) FCR 196 Cooper J said (at 201-202) that the majority decision in Hatzimanolis did not affect the need for a temporal connection between the occurrence of the injury and the employment and emphasised the need for a characterisation of the period or periods of work of the employee that highlights the temporal nature of the connection. His Honour observed that:
“The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. This is because, putting aside injuries suffered while travelling to or from work and the like which are specifically provided for …the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained…”
20. In the present case the applicant was not only on a period of several week’s leave but was also between postings. He was, therefore, in an interval between two discrete periods of work and there was no temporal connection between the injury and the employment. I conclude that the applicant’s 1980 injuries did not arise out or in the course of his employment unless the specific journey provisions contained in s 32- 36 of the 1971 Act operate so as to enable that conclusion.
21. Section 32(1) expands the concept of what is constituted by an employee’s employment by providing, relevantly, that the 1971 Act applies in relation to a journey that meets the criteria set out in that sub-section “…as if the journey constituted part of [the employee’s] employment by the Commonwealth.” The requirement is that the journey be one that is made “by an employee to his employment by the Commonwealth (irrespective of the place at which the journey commenced)…”. It is to be noted that the journey must be “to employment” and not to a “place of employment”.
22. Section 33 of the 1971 Act, which is expressed to be subject to sections 35 and 36 of that Act), provides that certain types of journeys shall be deemed to be “a journey to …employment” for the purposes of s 32(1). To be so deemed the journey must be one made by an employee “to his place of employment…[that] …would have ended during the period of one hour immediately before the time when he commenced work”. If the journey would have ended before the commencement of that one hour period, then the journey could still fall within the sub-section provided it satisfied the requirements specified in s 33(2)(b).
23. Section 34 of the 1971 Act provides further expansion of what constitutes a journey to employment for the purposes of s 32(1). Relevantly, s 34 (1) deals with a journey made by an employee to “living accommodation” that “…is, as an incident of his employment and without charge to him, provided temporarily…” provided that the journey would have ended “during the period that commenced at eight o’clock in the evening of the day immediately preceding the day when he was next required for work and ended at the time when he was next required for work...”
24. Sub-sections 34(2) and (3) deal, respectively, with situations where an employee is “…as an incident of his employment, provided with living accommodation situated …” within (in the case of s 34(2)), or outside (in the case of s 34(3)) his place of employment. Sub-section 34(3) is not relevant in the present case. Sub-section 34(2) relevantly applies if the employee:
“…by the terms of his employment is not, or may not be, at certain times at liberty to absent himself from his place of employment.”
If such an employee makes a journey to his place of employment during a period when “… he is at liberty to absent himself from his place of employment …” then such a journey will be deemed to be a journey to his employment for the purposes of s 32 (1) provided that the journey ended in the period that commenced at eight o’clock on the night before the day on which the period of liberty ended and ended at the expiration of the period of liberty.
25. Section 34(2) is expressed to be subject to s 34(4) - which relevantly provides that where a journey is made that would not be a journey of the type referred to in s 34(2) only because the journey would have ended before the commencement of the period specified then it will be deemed to be a journey of the type referred to provided the journey was one that “was made by the last means of transport -
(i) that was conveniently available for use by the employee;
(ii) that would ordinarily have enabled the employee to complete the journey before the commencement of that period; and
(iii) that was of a kind that the employee could, having regard to all the circumstances of the case, have been reasonably expected to use.”
26. The applicant’s evidence was that at the end of the period of his training at Puckapunyal he applied for, and was granted, leave for the purpose of travelling back to Western Australia to see his parents, and for the purpose of collecting his personal motor vehicle and driving it back to his next posting at Holsworthy. He was entitled to leave for travelling time to and from Western Australia and to have his travelling expenses paid by the army. He travelled by air to Perth, where he met his brother, who had the applicant’s vehicle, and he then drove to Kalgoorlie where he spent most of his leave. He was on the return journey to Holsworthy when the accident happened.
27. The applicant said that young trainees in his position were not entitled to have their personal vehicle transported to the place where they were undertaking their initial training. Accordingly, he was not able to have his vehicle at Kapooka or Puckapunyal. However, once he was posted to a unit at Holsworthy the Army permitted soldiers to have their personal vehicle with them and either met the cost of transporting the vehicle or paid the soldier a cash allowance and granted days of leave to enable the soldier to drive the vehicle to the place of posting. Consequently, the applicant applied for permission to drive his vehicle from Kalgoorlie to Sydney and the Army granted that permission and paid him a considerable amount of money to cover the cost. He was also granted some additional days leave to cover the travelling time.
28. According to a posting order dated 9 September 1980 the applicant was posted to Holsworthy with an “effective date of posting” of 24 September 1980 (Tp82). An application for leave (Tp83) records that the applicant was granted leave from 5 September 1980 to 23 September 1980.
29. The applicant said in his oral evidence that he consciously decided to leave Kalgoorlie for the return journey to Holsworthy allowing plenty of time to complete the journey and to provide a leeway in case he encountered mechanical trouble along the way. He said that he wanted to be sure that he arrived at Holsworthy in good time to take up his posting and he wanted to be able to have his vehicle fixed if it broke-down or, as a last resort, catch a bus that would get him to Sydney in time if the mechanical problems could not be fixed. He did not have a specific target time to arrive at Holsworthy but, assuming no delays, he expected to arrive on or about 21 or 22 September.
30. Mr Desmond March gave oral evidence that he is the Assistant Director of Entitlements in the Department of Defence. He has been associated with the administration of entitlements for service personnel for approximately 35 years. In relation to the posting order referred to at [28] above, Mr March said that a soldier such as the applicant would be expected to “march in” (i.e. report for duty) to the new base and be on parade by 7:30am on 24 September.
31. Mr March said that a serving member of the Army became a member of the unit to which he or she was posted on the “effective date” of the posting. In other words, the applicant would have officially become a member of the unit at Holsworthy on 24 September. The soldier would officially remain attached to his/her relinquishing unit up until that day. On this basis, although he was on leave between postings, the applicant would have officially remained a member of the unit at Puckapunyal and been subject to the authority of the commanding officer at Puckapunyal until 24 September 1980 – even though he would have been “marched out” and “cleared out” of his old unit at the time he went on leave. Although the applicant would officially remain a member of the unit at Puckapunyal until 24 September he was, for practical purposes, in a kind of limbo period whilst he was between postings.
32. However, Mr March said that a soldier in the position of the applicant at that time would have been entitled to arrive at the new posting location earlier than the effective date. He said that it was quite common for soldiers going to a new base to arrive a day or two early in order to have a look around and get the feel of the new location. A soldier in that position would always be given accommodation at the new base. He or she could remain on leave until the “march in” on the effective date of the posting or could apply to the receiving unit to have the last few days of leave cancelled so that they could take up duties earlier than the effective date.
33. Mr March said that a soldier in the position of the applicant, who had been in the Army for only a few months, would not have accrued enough days leave credits to cover the amount of leave that he was granted at that time and the leave form (Tp83) indicated that he had gone into debit for approximately five days. This was permitted under Army rules at the time – and suggested to Mr March that had the applicant applied to have the last few days of his leave cancelled when he arrived at Holsworthy this would have been approved.
34. Mr March explained how leave for travel time was calculated and granted to a soldier in the position of the applicant. In 1980 the travel time would have been based upon the time needed to travel by air or by rail – and, for a soldier intending to drive a vehicle to or from leave, the amount of driving time would be roughly equivalent to the time taken for a rail journey. Between Western Australia and Sydney that would have been approximately two and a half days in 1980. Mr March explained that the calculation of these leave allowances has now changed, with greater emphasis being placed on the actual distance expected to be driven and the leave time calculated on the basis that a person will drive approximately 600 kilometres per day.
35. Mr March said that if a soldier did not wish to drive his or her motor vehicle back to the place of posting then the Army would meet the cost of transporting the vehicle.
36. In relation to the provisions regarding journeys outlined above, the applicant contended in his oral submissions that it was entirely normal for a soldier in his position to drive his personal vehicle back from leave. As far as he was concerned, and as far as the Army was concerned, he was expected to go to Holsworthy rather than Puckapunyal and it was entirely normal for a soldier to expect to arrive a little early at a new base. That, plus the fact that he was only 18 years old and his desire to ensure that he did not arrive late, meant that it was quite reasonable that he wished to arrive a little early. He knew that he could get accommodation at Holsworthy and he thought that he would be able to start work more or less straight away. As far as he was concerned he was travelling to his employment and/or to his place of employment and the journey provisions should be interpreted in a way that give effect to a legislative intention to extend cover for compensation to employees, rather than to provide a loophole by which liability could be avoided.
37. The first aspect of the journey provisions that must be considered is s 32 (1). The distinction between a journey to or from “employment” and a journey to or from “a place of employment” was considered by the Full Federal Court in Commonwealth v Duncan (1982) 44 ALR 249. The question before the Court was whether the journey in question was “from employment” for the purposes of s 32(1) and Kelly and Fitzgerald JJ concluded that a journey from employment should be interpreted as meaning not from the place of employment but from the duties of employment – and what has to be determined is whether the employee was journeying from a state of activity called employment, using the word in its appropriately ample sense, and not whether he was journeying from his place of employment. Similar principles must apply in the case of a journey to employment. Applying such an interpretation to the present case, it cannot be said, in my opinion, that the applicant was travelling to his duties of employment, even though he was in my opinion, travelling to his place of employment. It follows that s 32(1) cannot be directly of assistance to the applicant.
38. Section 33 applies to an employee other than an employee to whom s 34 applies and hence it is appropriate to consider that latter section first. The respondent contends that s 34(1) is not applicable to the applicant because the accommodation that is referred to must be accommodation that is provided temporarily – and in the case of accommodation provided at an Army barracks that is not the case. I accept that that is the case.
39. The respondent agrees that s 34(2) as modified by s 34(4) may be applicable to a soldier in the position of the applicant as a general proposition – but contends that the sub-section cannot be applied to the applicant in his particular circumstances in 1980.
40. The first reason advanced by the respondent for this contention is that s 34(2) speaks in the present tense and refers to an employee “who is” provided with living accommodation and to journeys made during a period in which the employee “is at liberty” to be absent from the place of employment. Because the applicant had not, at the time of his injury, taken up his posting to the Holsworthy base (because the effective date of his posting had not yet arrived), he was not a person who was provided with accommodation at Holsworthy and who was not at liberty to absent himself from Holsworthy. Accordingly, any journey made by the applicant to Holsworthy prior to the effective date of his posting could not be within the ambit of s 34(2).
41. That interpretation of s 34(2) is, in my opinion, an unnecessarily narrow one given the context in which the provision appears. Sections 32 to 36 of the 1971 Act provide a range of provisions that amplify the scope of what will be taken to be part of an employee’s employment and deals with a number of different situations in which journeys to or from employment or place of employment may be covered by the legislation. They include journeys that in some circumstances need not be by a direct route (s 32(3)); journeys to a place of employment that will be completed within one hour before the commencement of work, but with provision for that period to be extended (s 33(1)); and journeys to or from temporary accommodation within certain time limits (s 34(1)). Further, in the application of all those provisions, the Act applies in relation to a person who makes a journey for the purpose of taking up employment with the Commonwealth, as if the person had already become an employee of the Commonwealth (s 36(2)). In that context, it would be surprising if a person who is already an employee of the Commonwealth but is between postings in a way that the applicant was, was not covered by the journey provisions when travelling to the new posting, provided the other requirements of s 34(2) are satisfied. It is apparent from Mr March’s evidence that, although the applicant may have technically remained attached to the Puckapunyal base and was subject to the commanding officer of that base up until the effective date of his posting to Holsworthy, the practical reality was that he had severed his connections with Puckapunyal and was for all practical purposes expected and required to present himself at the Holsworthy base by a certain time in order to meet his obligations. The facts that he could quite reasonably have arrived at Holsworthy early (as Mr March said was quite usual), would have been provided with accommodation on his arrival, and in all probability granted approval to cancel the last few days of his leave had he wished to do so, lends support to that view.
42. In my opinion s 34(2) can be interpreted to extend to the situation of an employee in the position of the applicant. Being part of socially remedial legislation intended to benefit workers, s 34(2) should be given a construction that advances the beneficial purposes of the Act. Where two constructions are possible, that which is favourable to the worker should be preferred: see Thiele v Commonwealth (1990) 22 FCR 342 at [11] per Hill J; Whittaker v Comcare (1998) 28 AAR 55 at 67-68. Accordingly, I do not accept this first contention of the respondent.
43. The second reason advanced by the respondent as to why s 34(2) is not applicable in the present case is that the time requirements specified in the sub-section would not have been satisfied on the facts. The requirement is that the journey must have ended, or would have ended, in the period between 8 p.m. on 23 September 1980 and 7:30 a.m. on the following morning. On the applicant’s evidence his intention was to arrive at Holsworthy one or two days prior to that period.
44. I accept the applicant’s evidence of his intended time of arrival and on that basis his journey would have ended prior to the period referred to in s 34(2)(a). However, that being so, the provisions of s 34(4) must be considered. If the three provisos referred to in that sub-section are satisfied then the journey will be deemed to be a journey of the type referred to in s 34(2). Section 34(4) requires that the journey be made by “the last means of transport” that satisfies the three requirements of the sub-section set out in [25] above.
45. The respondent referred me to a decision of the Full Federal Court in Maunder v Commonwealth of Australia (1983) 51 ALR 44 and to the following passage in the joint judgement at p51:
“In speaking of the first available means of transport, s 33(3)(b) read in its context is clearly referring to the means of transport first available to the employee after the employee ceased work. The legislative intention seems to be that, if the employee delays in leaving his place of employment and commencing his journey until after the prescribed period, he must, to obtain the benefit of s 33, show that a means of transport was not available to him during the prescribed period.”
The respondent argued that a similar analysis would apply to travelling to a place of employment i.e. that the employee must show that a means of transport was not available to him that would have enabled him to complete the journey following the commencement of the prescribed period i.e. after 8 p.m. on the evening before the person was due to commence duties.
46. Although I accept that the comments of the Federal Court in Maunder in relation to s 33 of the 1971 Act will be applicable equally to the corresponding terminology of s 34, it seems to me that the passage quoted above was principally intended to deal with an argument that was put to the Court that the reference in s 33 (3)(b) to the first means of transport was a reference to the first means of transport available to the employee “…after the time when he leaves his place of employment with the intention of making the journey” rather than the first means available after the cessation of work.
47. In that context I believe it is possible to distinguish between a journey made from a place of work after a cessation of duties and a journey made to a place of work in order to commence duties, particularly where the journey involves travel over a great distance. In the circumstances I do not believe that the comments of the Full Court in Maunder are directly applicable to the case of a journey to a place of employment. It is also important to bear in mind that in Maunder the decision of the Tribunal (from which the appeal to the Federal Court was made) was that, in all the circumstances of the employee, travel by private motor vehicle was not a means of transport that the employee could reasonably have been expected to use, including circumstances of inebriation.
48. The respondent also referred to the decision of Deputy President Todd in this Tribunal in Re James and Commonwealth of Australia (1983) No. N82/272. In that case a serving air force officer was travelling by private transport from where he had spent approved leave towards his married accommodation near the air force base to which he was attached. Although DP Todd decided that the employee could not avail himself of the comparable provisions of s 33(2)(b) of the 1971 Act for other reasons, he commented that:
“were there no other problems in relation to the applicability of [s 33], I would be prepared to find in terms of s 33(2)(b) that the journey made by the applicant was a journey made by the last means of transport that was conveniently available for use by him and that it otherwise complied with the requirements of s 33(2)(b). I am satisfied that in all the circumstances, public transport, given that he had his own transport available, was not a reasonable option.”
49. The respondent argued that the reference by DP Todd to the employee having his own means of transport available and therefore public transport was not a reasonable option, was not appropriate in the present case because on the evidence there was no reason to think that the applicant could not have returned to Holsworthy by way of public transport in the same way that he had travelled to Perth at the commencement of his leave.
50. In examining these provisions it is appropriate, as the Full Court observed in Maunder, to have regard to all the circumstances of the case, including the capacity or other personal attributes of the employee. Some of the relevant circumstances are as follows:
(a) The applicant used his own personal vehicle as the means of transport in accordance with what was obviously a long established practice and entitlement of Army personnel. The Army accepted that a soldier in the applicant’s position was entitled to use his private vehicle to travel to his new posting and the Army was prepared to grant time and money to the applicant to facilitate that.
(b)If the applicant were to return to Holsworthy by air travel it would have been necessary for him to return to Perth from Kalgoorlie in order to do so.
(c)I accept the applicant’s evidence that it was necessary and desirable to allow some leeway in travelling time so as to cater for the possibility of mechanical trouble and I also accept the evidence of the applicant and Mr March that it was normal for personnel arriving at a new base to arrive early. I note in passing that the current Army practice of calculating travel time on the basis of driving about 600 kilometres per day would imply a reasonable travelling time for the applicant of approximately 5 days. In my opinion it would have been unreasonable for a person in the applicant’s position to have attempted to time his arrival at Holsworthy after such a long journey to the period between 8:00p.m. on 23 September and 7:30 a.m. on 24 September – especially as he was expected to be fit for duty at 7:30 a.m..
51. Having regard to those circumstances, I am satisfied that the use of his private vehicle was a means of transport that was conveniently available for use by the applicant; it was a means of transport that would ordinarily have enabled him to complete the journey before the commencement of the relevant period; and it was a means of transport of a kind that the applicant could, having regard to all the circumstances of the case, have been reasonably expected to use. The question remains, however, whether that means of transport was the “last” means.
52. The reference to the last means of transport in s 34(4) is a reference to the last means that satisfies the three provisos referred to. Although public transport may have been an option for the applicant, it was not an option that, in my opinion, satisfied the three provisos and in the circumstances I consider that the use of a private motor vehicle was the last means of transport for the purposes of s 34(4). Accordingly, in my opinion, the journey that the applicant was undertaking was one that was deemed to be a journey of the type referred to in s 34(2)(a) and it was, accordingly, a journey that was deemed to be a journey to his employment for the purposes of s 32(1). It follows that it was a journey that constitutes part of his employment by the Commonwealth. His 1980 injuries were suffered in the course of that journey and they are, therefore, personal injuries in the course of the applicant’s employment for the purposes of s 27(1) of the 1971 Act.
Delays in giving notice of injury and making a claim
53. In the original determination of September 2001 and the reconsideration decision of February 2002 the respondent made no reference to the provisions of s 53 or 54 of the 1971 Act and their requirements regarding the timely giving of notice of injury and the making of a claim for compensation. In its Statement of Facts and Contentions the respondent contended that the applicant had failed to comply with those two sections by not giving notice in writing of the injury as soon as practicable (in accordance with s 53) and not making a claim within six months of the date of the injury (in accordance with s 54); that the Commonwealth is, by reason of the applicant’s failure to do those things, prejudiced; and that the failures did not result from the death, absence from Australia, ignorance, mistake or any other reasonable cause on the part of the applicant.
54. In the case of giving notice of the injury, the obligation in s 53 (1) is to serve “…notice in writing of the injury …as prescribed, on the Commonwealth” as soon as practicable after the occurrence of the injury or after the employee became aware of the injury. The first significant point to note about this obligation is that the notice does not need to be given by the employee. Regulation 15 of the Compensation (Commonwealth Employees) Regulations (Statutory Rule 112 of 1971) relevantly provides that, in the case of an injury, the notice that is required to be served by s 53(1) shall state the name and address of the place of residence of the employee; the place, date and time at which and on which the injury occurred; the circumstances in which the injury occurred and whether any other persons were present, and if known to the person serving the notice, the names and addresses of the places of residence of those persons. Sub-regulation 15(4) provides that a notice of injury shall be served on the employee’s “immediate superior officer” in the employment in which he was employed at the time when the injury or accident occurred, but sub-regulation (6)(a)(ii) qualifies that by providing that, in the case of an employee who is a member of the military forces, the notice may be served by leaving the notice at, or sending the notice by post to, the Office of the Secretary to the Department of the Army.
55. In the present case it is apparent from Tpp75 and 77 that by no later than 19 September 1980 the military hierarchy (including the Military District of Sydney and the Department of the Army in Canberra) was aware of the motor vehicle accident, the identity of the applicant, and the location at which the accident had occurred – although the details of the accident were not known at that stage. I have no doubt on the evidence that by the time the applicant was admitted to a military hospital in Adelaide within a matter of days the other information required by reg 15 would have been known to the military authorities – with the possible exception of the requirement to identify the names and addresses of the other persons who were present when the injury occurred.
56. As the authors of the Annotated Safety Rehabilitation and Compensation Act 1988 (Ballard & others, Federation Press, (6th ed. 2003 at pages 355 and 356 observe, there have been conflicting decisions in this Tribunal as to whether admission to a military hospital could constitute a notice of injury in the form required by section 16 (2) of the legislation that was applicable prior to the 1971 Act: see Re Muras and Department of Defence 52 ALD 579 per Deputy President McMahon and Re Siemsen and Comcare [1999] AATA 871 per Senior Member Dwyer. Senior Member Dwyer observed in Re Siemsen at [43],
“…so long as notice is given the section is satisfied. It is not there to create a hurdle for applicants, but to provide that notice is given of accidents and claims are lodged “so soon as practicable” and “within six months”, respectively, except in certain circumstances, where there is “reasonable cause” for the delay. That analysis is consistent with the beneficial nature of compensation legislation as explained by the Full Court of the Federal Court in Whittaker v Comcare (1998) 28 AAR 55 at pages 67-68.”
57. Senior Member Dwyer’s approach is, in my opinion, consistent with the views expressed by the Tribunal in Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534, in which the Tribunal said at [6]: “…where an appropriate officer of the Commonwealth or the relevant instrumentality is made aware at an appropriate time of the alleged injury or disease and the circumstances in which it was suffered or contracted, the Commissioner and the Tribunal should, we believe, be slow to hold that a claim for compensation for the incapacity resulting from that injury or disease must fail because section 53 [of the 1971 Act] has not been complied with to the letter.”
58. In the circumstances I am satisfied that notice of the applicant’s injury with sufficient accompanying particulars as to how the injury was suffered, was given to the Commonwealth in writing as soon as practicable and that, in those circumstances, s 53 of the 1971 Act was satisfied. I must then consider whether the requirements of s 54 were satisfied.
59. Section 54 relevantly requires that a claim for compensation must be made by or on behalf of the employee within a period that is prescribed as six months “commencing on the day of the injury” or commencing on the day on which the employee became aware that he had sustained an injury.
60. Although the applicant was aware that he had suffered some form of what was thought initially to be a minor neck injury, it was not until on or about 27 October 1980 that the fracture was diagnosed. According to the clinical notes of the applicant’s stay in the military hospital in Sydney at the time, the existence of the fracture was noted on 28 October and the applicant was seen by Dr Croser, who fitted a skull brace on that day. In my opinion that would have been the earliest time that the applicant was aware that he had a fracture and I find that the six month period referred to in s 54 commenced on that day.
61. It is not in dispute that the applicant did not make a claim for compensation within the six months thereafter and, accordingly, compensation will not be payable to him under the 1971 Act unless the claim that was eventually made in early 2001 can be deemed to have been made in accordance with s 54 (1) because of the existence of one of the features identified in s 54(6)(see [13] above). Two of those features, namely, failure resulting from death or absence from Australia, are clearly not applicable in the present case. That leaves for consideration whether the Commonwealth would, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim or whether the failure resulted from ignorance, from a mistake or from any other reasonable cause.
62. In relation to failure due to ignorance or mistake, in Telstra Corporation Limited v Roycroft (1997) 47 ALD 671 at 677-678 North J referred to a number of propositions established by the authorities and said (at 679) that “as these authorities show, there is a thin line between ‘mistake’ and ‘ignorance’. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence…”
63. In relation to whether the failure to lodge a claim resulted from any other reasonable cause, in Banks v Comcare [1996] FCA 382 an employee was aware that he had suffered injury but decided not to claim. Kiefel J said that “the expression ‘reasonable cause’ has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim…” (references not included).
64. The failure that is referred to in s 54 is the failure to make a claim within the six month period specified and not to the whole period of the failure to claim and the test for determining whether a reasonable cause exists is an objective one taking into account the subjective circumstances of the employee: see Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382.
65. In his first letter to the Department of Veterans Affairs regarding his claim in early 2001 (T50) the applicant described his unhappiness whilst hospitalised in Sydney following the accident, and said that he was young and had no friends or family in Sydney, that he was unable to go home to recover from the accident whereas other soldiers were able to do so, and that he “was propositioned by a homosexual soldier”. He said that it was all too much for him and so he decided to go AWOL at the suggestion of a corporal with whom he discussed his unhappiness. The applicant went on to say “with shame I never pursued any compensation for my injuries because I was now a fugitive. My life has been hell since the accident physically and emotionally. I recently saw an ex-soldier and in talking he told me I should speak to Veteran’s Affairs. So I made a phone call. I am sorry I took twenty years to get the courage to do this. Please help me.”
66. In a statement filed at the Tribunal dated 20 February 2002 (A3) the applicant said that he had been told by the doctor who treated him at the end of 1980 that the fracture of his odontoid peg had reunited and that he had gone “…twenty years thinking it had. After the last five years of constant headaches and neck pain I had X-rays and they showed what I feared.”
67. As noted above, the documentary evidence concerning the applicant’s medical treatment immediately after the motor vehicle accident shows that there was a delay in diagnosing the fracture and that the applicant continued to complain of neck pain and pains to the back of his head. On 17 October 1980 he was referred to a Doctor Croser who is described in T24 as an orthopaedic specialist. A tomography of the odontoid revealed the fracture on 27 October 1980 (T33). A repeat tomography undertaken on 10 December 1980 revealed that the fracture had not fully united at that time (T42). A further review tomography was undertaken on 27 January 1981 and a report of the results of that examination (T47) states that “some bony bridging has occurred across the fracture site, with resultant blurring of the previously noted fracture lines, and this indicates that union is advancing. Union is not complete, however.” It was shortly after that the applicant went AWOL and no further evidence is available regarding the progress of the degree of reunion of the fracture area until January 2001. Document T49 records findings at that time that: “there is a fracture through the base of the odontoid peg with a 2 mm cleft separating it from the body of C2. With flexion there is a forward slip of C1 with respect to C2 of approximately 1 centimetre. This corrects in the neutral position. There is minimal retrolisthesis with extension.”
68. It is not necessary to set out in detail at this point the written reports of and oral evidence given by Doctors Woodland and Batalin, both of whom are orthopaedic surgeons. It is sufficient to observe that there is now considerable uncertainty as to whether the fracture suffered by the applicant in 1980 ever completely reunited and whether it can now be said that the applicant’s present condition is a consequence of that original injury or is now the consequence of events that have occurred since 1980 and which are unrelated to the original injury.
69. In his oral evidence the applicant said that after the fractured odontoid peg had been diagnosed he had been kept immobile for about a month in hospital and was then able to do only light duties around the barracks. He had never previously heard of an “odontoid peg” as a part of his vertebrae and did not fully understand the nature of his injury - but he had been told by the doctor that the fracture was uniting, would heal, and he would lead a normal life. He presumed that this would be so. He said that after he went AWOL he returned to Kalgoorlie and lived a fairly sedentary life for the first twelve months. During this time he was in some pain and discomfort from his neck but gradually the pain settled and he gradually learned to put up with the stiffness in his neck – so that he was able to lead a normal life. He could not manage the first job he tried, but the second was easier physically and he managed it. It was not until 15 or 16 years later that he started to experience new problems in his neck and these ultimately lead to his claim in 2001. The applicant agreed that over the two decades after the accident he had lead a very active life, working in jobs involving heavy physical labour and engaging in a number of physical sporting activities including football and surfing. Also produced was correspondence between the applicant and the respondent’s solicitors (R3-R6) in which the applicant confirmed a history of a number of motor cycle accidents in the 1980s and other physical injuries to the head and neck that had been suffered over the years.
70. The applicant said in his oral evidence that he knew – or at least believed – that he had an entitlement to claim compensation for his injuries in the six month period following his accident because of an earlier experience prior to enlistment. He had been injured in a motor vehicle accident whilst he was on his lunch break and had received workers compensation at that time. He believed that he was covered for compensation purposes at the time of his 1980 accident because he was travelling from his home to his work.
71. However, the applicant explained his failure to make a claim in the months following the accident in several ways:
(a)He was asked what he meant by the reference in T50 to not claiming compensation because of shame and being a fugitive (see [65] above). He said:
“Well, I was AWOL. I didn’t really pursue – I didn’t expect to be able to claim anything because I accepted the injury that I had. I’ve told you that a 16-year-old was driving my car, okay?... Now I went AWOL from the Army, so I didn’t bother putting in a claim, and also I was still able to do what I wanted to do with my life – and that was to live reasonably sedentary, and things weren’t too bad. Not too bad. I was ashamed, yes, that I’d gone AWOL.”
(b)The applicant was also asked: “so is it the position that you didn’t believe that you were entitled to make a compensation claim because this was a 16-year-old boy driving your car?” The applicant replied: “Yes, probably, yes.” He was also asked: “And because of that you didn’t think you would have any entitlements?” His answer was: “Possibly, yes”.
(c)The applicant also said that making a claim for compensation was never really foremost in his mind in 1981 because he had been assured by the Army doctor that his fracture would heal and he would lead a normal life. Accordingly, he had never really given much thought to the making of a claim because, although he hadn’t been able to manage the first job he tried, he had then found a job he could manage.
72. Mr Paul Ontong gave oral evidence that he is the Director of Appeals for the respondent and has worked in the administration of the 1971 Act and the 1988 Act over many years. Mr Ontong said that if the applicant had given notice and claimed compensation shortly after the motor vehicle accident then enquiries would have been made to confirm the details of when he was on leave and expected to resume duties, and to locate potential witnesses to the accident to provide a factual basis for the claim. An investigation would have been undertaken at the time to see if the journey provisions of the 1971 Act could be applied to the applicant’s circumstances. From a medical point of view, Mr Ontong said that in the early 1980s all claims for compensation underwent specialist examination. If the specialist had recommended on-going treatment or on-going monitoring of progress of the applicant’s recovery then the applicant would have been re-examined from time to time and his progress checked by a medical specialist.
73. Mr Ontong said that where a soldier was in hospital a staff clerk would advise of the possibility of making a compensation claim – but otherwise there were no arrangements in place by which hospital or general Army staff would pass on information about an injury and possible future claims to the relevant compensation section.
74. The respondent contends that it is prejudiced by the failure of the applicant to give notice and to make a claim at an early stage because it would have arranged for the applicant to be monitored after January 1981 so that there would be a sequence of tomographic examinations that would show the progress of the applicant’s recovery. The failure of the applicant to give notice and make a claim (plus the complicating factor that the applicant went AWOL and was eventually discharged from the army without further medical examination) means that it is now extremely difficult, if not impossible, to conclude with any certainty what actually happened to the applicant’s neck condition between January 1981 and January 2001. The respondent contends that the point of provisions such as sections 53 and 54 is to avoid the need for reconstructions long after the events in question occurred.
75. Although Mr Ontong gave evidence of investigations that may have been undertaken at the time regarding the identification of witnesses to the accident or inquiries regarding the circumstances in which the applicant came to be driving from Western Australia to the eastern states, I do not believe that prejudice can be said to have been suffered by the Commonwealth for that reason. However, I do accept the contention made on behalf of the respondent that had the applicant made a claim within the requisite period, or indeed had he simply remained as a serving member of the army, the progress of healing of his fracture would have been monitored over a period of time by specialist staff. A reliable record would have been created that would remove or reduce considerably the current element of uncertainty regarding the extent of the healing process of the fracture at that time and the conjecture as to how the applicant’s current neck condition developed. It is not now possible to rectify that deficiency and, in my opinion, the Commonwealth has been prejudiced in its assessment of the applicant’s claim by those deficiencies.
76. In relation to whether the failure to claim was due to mistake, ignorance or other reasonable cause, the applicant’s circumstances in the first six months of 1981 are set out above. I am satisfied that the applicant had mixed reasons for not pursuing a claim at the time. He thought the neck problem would eventually get better and not cause future problems but, in my opinion, there were more important reasons why he did not pursue a claim even though he knew, or believed, that his injury was covered by worker’s compensation:
(a) He knew that to make a claim would necessarily involve making contact with the Army, with possible adverse consequences because of his AWOL status;
(b)In any event, he believed that his AWOL status and the fact that he would have to disclose that his vehicle was being driven by an unlicensed driver would deprive him of any entitlement;
(c)He had a genuine sense of shame about being AWOL. Although a relatively minor matter, I accept the applicant’s evidence that when he went AWOL he left his neck brace at Holsworthy because he thought it might have been expensive and he didn’t want to be accused of stealing it. That evidence demonstrates, in my view, the emotional conflict experienced by the applicant at the time.
77. I accept the applicant’s evidence that he believed he was covered for compensation and that his neck problems would eventually settle and not cause him complications in the future. I also accept his evidence that he believed he had lost his right to compensation for the reasons mentioned above. On balance I consider that his conscious decision not to claim compensation at the time was based on that mistaken view about a possible entitlement to claim.
78. It is not, therefore, necessary for me to consider whether the applicant’s failure to claim was also due to some other reasonable cause. However, I note that in Banks at [12] Kiefel J said that:
“Here however, it was not just the circumstances prevailing which operated to hinder or prevent the giving of notice, but a conscious decision made by the applicant in light of those circumstances and according to where it was perceived his best interests lay. It was a decision that a claim not be pursued as the applicant felt he was able to manage. There may be cases where a decision not to claim, for a time, is held to be justified and qualify as reasonable, for instance when it is made absent full knowledge though not amounting to a mistaken belief, a separate ground of excuse under the proviso. It is difficult however to accept that proviso (ii) was intended to encompass a position where a person might later change their mind about making the claim for the reason that it now suited them to do so.”
79. The applicant’s position might be said to be not unlike the employee referred to by Kiefel J. It could be said that the applicant made a decision in the light of the circumstances confronting him to not claim because that was what he perceived to be in his best interests and that he has now sought to change his mind because it now suits him to do so. I do not consider that to be the case. In my opinion the failure to claim was because of the mistaken view about the possible disentitling factors and the belief the injury would not cause problems in the future. I consider that these factors, plus the applicant’s young age at the time and the circumstances in which he parted company with the Army, constitute a reasonable cause for the failure to claim within the prescribed time in 1981. I find that the claim lodged in 2001 is deemed to have satisfied the requirements of s 54(1) of the 1971 Act.
80. I have concluded above that:
(a) the applicant satisfied the requirements of s 53(1);
(b) although the applicant’s failure to claim compensation within the time specified in s 54(1) did prejudice the Commonwealth, the failure was due to mistake or other reasonable cause and the claim made in 2001 is deemed to satisfy the requirements of s 54(1);
(c) the journey undertaken by the applicant is to be taken as constituting part of his employment by the Commonwealth for purposes of s 32(1).
81. Having found the above in favour of the applicant, the hearing of the matter is to be reconvened for the purpose of the parties making submissions in relation to the remaining issues to be determined in the proceedings.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen, Member
Signed: .................(sgd V Wong).............................
AssociateDate/s of Hearing 16, 17 March 2004
Date of Decision 17 September 2004
Counsel for the Applicant In person
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Australian Government Solicitor
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