Brooks and Comcare - [2000] AATA 296

DECISION AND REASONS FOR DECISION [2000] AATA 296

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/107

General administrative DIVISION )

Re IVAN THOMAS BROOKS
Applicant

And COMCARE
Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date17 April 2000
PlaceAdelaide

Decision The Tribunal does not have jurisdiction to hear and determine the application for review lodged on 19 March 1999.

(Signed)
WJF PURCELL
(Senior Member)

CATCHWORDS
PRACTICE & PROCEDURE – jurisdiction – whether "notice" served under 1971 Compensation Act – whether "claim" served under 1971 Compensation Act – "ignorance" considered – sufficient notice considered
Safety Rehabilitation and Compensation Act 1988 s.124
Compensation (Australian Government Employees) Act 1971 ss.53, 54
Muras v Department of Defence (AATA 13196, 21 August 1998)
Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665
Commonwealth of Australia v Connors 86 ALR 247
Telstra Corporation v Roycroft (1997) 77 FCR 358

REASONS FOR DECISION

17 April 2000 Senior Member WJF Purcell

The applicant has applied for review of a decision of 22 January 1999, made upon reconsideration, by a delegate of the Military Compensation and Rehabilitation Services. This decision affirmed a determination, dated 19 November 1998 which refused payment of compensation to the applicant for injuries to both knees. The applicant alleged the injuries occurred on 19 August 1973.
The applicant, in his statement in support of his claim, alleged that whilst riding his motor cycle from his parents' home at Port Pirie to the Edinburgh Air Force Base (Edinburgh) he collided with a motor car at Port Pirie, resulting in the removal of his patella from the right knee, and damage to the patella of the left knee. The original delegate refused the claim on the basis that the applicant's service documents indicated that he suffered injury to his right knee, which required three weeks' treatment at Port Pirie Hospital; that there were no details of the time, or circumstances of the accident. The delegate was satisfied that the injury did not arise out of, or in the course of the applicant's service with the RAAF. The delegate who reconsidered the decision was satisfied that the applicant was normally resident at Edinburgh, and that it appeared that the applicant was on an ordinary "off-duty period" over a weekend. On that basis, there was no connection between the applicant's vehicle accident and his RAAF employment.
The matter came on for Hearing in relation to the question as to whether the Tribunal has jurisdiction to hear the substantive application for review. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and exhibits tendered by the parties. The applicant, who gave oral evidence, was represented by Miss C. Hokin, and Mrs N. Cross appeared for the respondent (Comcare).
On 9 September 1998 the applicant lodged his claim with the Department of Defence under the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act). Section 124 of the 1988 Act, as far as is relevant in this matter, provides:
"124. (1) Subject to this Part, this Act applies in relation to an
injury, loss or damage suffered by an employee, whether before or
after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation
under this Act in respect of an injury, loss or damage suffered
before the commencing day if compensation was, or would have been,
payable to the person in respect of that injury, loss or damage
under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in
respect of an injury, loss or damage suffered before the commencing
day if compensation was not payable in respect of that injury, loss
or damage:
(a)where the injury, loss or damage was suffered before the
commencement of the 1930 Act-under the 1912 Act;
     (b)   where the injury, loss or damage was suffered after the
          commencement of the 1930 Act but before the commencement of the 1971
          Act-under the 1930 Act as in force when the injury, loss or damage
          was suffered; or
     (c)   in any other case-under the 1971 Act as in force when the
          injury, loss or damage was suffered.
…
(10) Where:
(a)   proceedings for the recovery of compensation under the 1912
          Act, in respect of any injury suffered before the commencement of
          the 1930 Act, were not maintainable by a person because of section 5
          of the 1912 Act;
     (b)   a claim for compensation by a person under the 1930 Act, in
          respect of an injury suffered after the commencement of the 1930 Act
          but before the commencement of the 1971 Act, was not admissible
          because of section 16 of the 1930 Act; or
(c)   a claim for compensation by a person under the 1971 Act, in
respect of an injury suffered after the commencement of the 1971 Act
          but before 1 July 1986, was not admissible because of section 54 of
          the 1971 Act, as that section was in force before 1 July 1986;
          that person is not entitled to compensation under this Act in
          respect of that injury."
Sections 53 and 54 of the Compensation (Australian Government Employees) Act 1971 (the 1971 Act), as far as are relevant in this matter, provide:
"53(1) This 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)if the employee died without having become so aware or before it was practicable to serve such a notice – as soon as practicable after his death.
…
54(1)Compensation in relation to an employee is not payable under this 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.
(2)If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is –
(a)in the case of a claim in relation to an injury to the claimant –
(i)the period of six months commencing on the day of the injury; or
(ii)if the claimant was not, immediately after the injury aware that he had sustained an injury – the period of six months commencing on the day on which he become so aware;
…"
The applicant argues that the requirements of sections 53 and 54 of the 1971 Act should, in his case, be deemed to have been complied with, because, during the period prescribed under the legislation he had no knowledge of his entitlement to make a claim for compensation. The applicant concedes that Comcare would suffer prejudice, but this could be discounted if he could make out another of the factors in sub-sections 53(4) and 54(6) of the 1971 Act. The relevant factor is his ignorance leading to failure to lodge a notice as soon as practicable for the purposes of section 53 of the 1971 Act, and failure to lodge a claim within the prescribed period of 6 months, for the purposes of section 54 of the 1971 Act.
The applicant submits finally, that on the grounds of ignorance, it should be found that notice of his injuries was deemed to have been served in accordance with section 53 of the 1971 Act; and that his claim should be deemed to have been served in accordance with section 54 of the 1971 Act.
Comcare maintains that no notice in writing of any alleged injury has been served on the Commonwealth as prescribed by section 53 of the 1971 Act. Informal notice, in the sense that there is reference in the applicant's medical records to his involvement in a motor vehicle accident, is insufficient. The applicant's delay, it submits, has severely prejudiced Comcare, which is now unable to investigate fully the circumstances of the accident to determine matters such as the applicant's medical condition immediately prior to the accident and whether a third party was liable. Any medical evidence obtained by Comcare at this stage, would be unsatisfactory and unable to deal adequately with the intervening years.
Comcare submits also, that the ignorance upon which the applicant relies, must have persisted over the relevant period (which lapsed in 1974) and in addition, his failure to lodge the notice and the claim must have resulted from that ignorance, which must have continued until 1998. In view of the lapse of time, it is incredibly difficult for Comcare to investigate the applicant's assertions that he was ignorant at that relevant time. He is benefiting from the delay that has occurred. If the applicant became aware of his entitlements immediately prior to his discharge in 1992, there was no purported notice served upon the Commonwealth until 1998. Comcare submits that this is not a reasonable period for the applicant to have taken to lodge a notice or claim upon the Commonwealth.
The applicant gave evidence that after joining the RAAF on 10 April 1972, at the age of 17, he undertook training as a chef/cook. He was based at Edinburgh from March 1973. He resided at Edinburgh and at his parents' Port Pirie home on those occasions when he was granted recreation leave. He said that he went to Port Pirie most weekends, or at least once per month, as his father was ill at that time. He spent 3 weeks in hospital after the accident. He did not pay any medical bills and he assumed that these were paid by the RAAF. He stated also that he was given leave to return to Port Pirie to recuperate for a period following the accident. He returned then to light duties.
The applicant said in evidence that he never sought legal advice about the accident. He was unaware of the existence of compensation legislation and the fact that he should have made a claim and given notice of the accident soon thereafter. In 1998 he met Ron Coxon of the Vietnam Veterans' Association, and attended some Veterans' Advocacy Courses. He said that prior to 1998 it was his understanding that the RAAF would provide him with medical care following any accident, whether or not it occurred while he was on duty. In addition, no one had ever spoken to him about compensation issues. He had suffered work-related injuries as a cook, such as burns and cuts. He had received free treatment by the RAAF, but had never considered the question of compensation.
The applicant gave evidence that at the time of his discharge in 1992 no one talked to him about compensation. He conceded in cross-examination, that he may have received an Information Handbook at a resettlement lecture. He said that his recollection was of attending lectures on investment, but that there was no information on compensation. In relation to his application to the Repatriation Commission for a veteran's pension, which he lodged in October 1992, he said that a medical practitioner at Edinburgh completed the form in relation to the applicant's knee injuries. It was his understanding that it would be forwarded to the Department of Veterans' Affairs for assessment, to see if he was entitled to a pension. Following such assessment, he received entitlement to pharmacy expenses only.
The applicant said in cross-examination that it was possible his entitlements were explained to him in the course of the resettlement lectures in 1992. In his statement (Exhibit R1) he said in part:
"…
26. My lack of knowledge of my entitlement to make any sort of claim in relation to my injuries continued for a period of time up until 1992.
It was not until the time just before I lodged my application in September 1998 that I found out I could make a claim pursuant to the present legislation.
…"
He said in evidence, also that to the best of his recollection the resettlement lectures related to investing superannuation payments. It was only when he became a pensions officer with the Vietnam Veterans' Association and met a gentleman who was involved in a similar accident, that he learnt that he could be entitled to compensation.
I had the opportunity to hear quite lengthy testimony from the applicant who impressed me as a person trying his best to recall events that occurred many years before. He served for 20 years in the RAAF, but it became clear from his evidence that in his role as a cook he had little involvement in day-to-day administrative details. He appeared to be a person who took little interest in activities which were not within his own areas of responsibility. When he was to be discharged in 1992 he was interested only in those aspects of the lectures which related to investments. However, I accept the statement of Major McGregor (Exhibit R4) and I am satisfied that the Resettlement Handbook provided to the applicant, contained information regarding both Veterans' Department disability pensions, and workers' compensation claims. The applicant applied unsuccessfully for disability pension for his knee injury, but failed to lodge a compensation claim for the same injury. He had the information in his possession, but it is clear, on the evidence, that the applicant did not turn his mind to the matter until some 6 years later when he heeded Mr Coxon's advice.
Section 53 of the 1971 Act provides that the Act does not apply in relation to a claim for compensation in relation to an injury, unless notice in writing of the injury was served, as soon as practicable after the occurrence of the injury. Similarly, section 54 of the 1971 Act provides that compensation is not payable for an injury, unless a claim in writing was served within 6 months of the occurrence of the injury.
On the evidence no notice of the injury, other than a claim for compensation, was ever served on the Commonwealth. The applicant's submission is that the Commonwealth was clearly aware of the fact of his injuries as he was receiving medical treatment at the expense of the RAAF. Such an alleged informal notice does not comply with sub-section 53(2) of the 1971 Act. The notice must comply with Regulation 15, which as far as is relevant reads as follows:
"15(1)   The notice of an injury caused to an employee that is required to be served in pursuance of sub-section (1) of section 53 of the Act shall state –
          (a)       the name, and the address of the place of residence, of the employee;
(b)the place at which, the date on which and the time at which the injury occurred;
(c)       the circumstances in which the injury occurred; and
(d)whether any persons other than the employee were present when the injury occurred and, if known to the person serving the notice, the names, and the addresses of the places of residence, of those persons.
…"
Deputy President McMahon said in Muras v Department of Defence (AATA 13196, 21 August 1998 at paragraph 15) in relation to sub-section 53(2) of the Commonwealth Employees Compensation Act 1930:
"Such an informal notice (if it can be called a notice) is not a compliance with subsection (2). It does not contain a 'statement in ordinary language of the cause of the injury'. It does not give an account of the facts and circumstances leading to the occurrence of the injury. The way in which the accident occurred was medically irrelevant and would not have been inquired into by those treating the applicant. There is no suggestion in the medical records that the accident was work related, that it took place on the journey from the Sydney base to his parent's house or on the return journey. Indeed there is nothing in the surviving clinical notes to indicate that any of the treating doctors or staff ever made a record of the facts and circumstances of the accident. The mere fact that the applicant was treated in a Naval hospital for injuries arising out of a motor vehicle accident is not a passive compliance with the obligation to give a statutory notice. The purpose of this notice is, of course, to enable the Commonwealth to investigate the circumstances as soon as possible after they occur."

In my view no notice was ever served on the Commonwealth, and the saving provisions of sub-section 53(4) of the 1971 Act cannot apply in this matter. The notice contained in the claim for compensation lodged some 25 years after the event is not, in my view, sufficient notice for the purposes of sub-section 53(2) of the 1971 Act. The applicant has not complied with section 53 of the 1971 Act therefore, and the 1971 Act does not apply in respect of his 1973 injury.
In relation to sub-section 54(1) of the 1971 Act, compensation is not payable, unless, in accordance with sub-section (1) a claim in writing was served within the prescribed period, which is specified in sub-section 2(a) as 6 months, commencing on the day the claimant suffered the injury. The saving provision, sub-section 6(c), provides that the claim shall be deemed to have been served, where the Commonwealth would not be prejudiced if the claim were treated as a sufficient claim, or the failure to lodge the claim resulted from ignorance, mistake, or from any other reasonable cause. It is not disputed that the Commonwealth would suffer substantial prejudice, the only question is whether the failure resulted from ignorance. It is clear on the authorities that when considering delay in lodging a claim within the time specified in the 1971 Act, it is only the first 6 months after an injury which is relevant. Hartigan J in Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665 at 672 referred to the case of Murray v Baxter (1914) 18 CLR 622, and said:
"Isaacs and Gavan Duffy JJ held (with Griffith CJ dissenting) that the 'failure' referred to failure to commence proceedings within the period specified in s 12 itself namely, six months. They said: "You cannot imply a period where one is expressly 'specified'. The 'period above specified' for the commencement of an action is expressly stated to be 'within six months from the time of death' and 'within' does not include a period 'beyond'. The Act distinctly states and limits within fixed termini a condition precedent; it permits that condition to be excused; if it is excused its effect ceases, and if we were to extend the limits specified we should be creating a different condition". (at 633)"
In this matter, the specified period ended in February 1974, and the applicant maintains that his failure to serve his claim for compensation resulted from ignorance of his rights to compensation, simply not knowing that he had a claim. This ignorance persisted for the relevant period of time, and until at least 1992. As to what constitutes "ignorance" in the case of Commonwealth of Australia v Connors 86 ALR 247, Northrop and Ryan JJ were considering the question of failure, occasioned by mistake or other reasonable cause, in relation to the 1930 Act and said at p252:
"The findings of fact do no more than support a conclusion that he was ignorant, that is, that he did not know of his right to make a claim for compensation. Of course it followed from that conclusion that he was ignorant also of the requirements of giving notice and of making a claim within the times prescribed in s 16(1). The failure to give the notice and the failure to make the claim, on these findings, was occasioned by ignorance. Ignorance, in the sense we have used it as signifying failure to advert to the existence of the right cannot of itself constitute 'reasonable cause' under the 1930 Act."

In the matter of Telstra Corporation v Roycroft (1997) 77 FCR 358 North J said at p367:
"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. …"

I accept the applicant's evidence that during the prescribed period he was without knowledge about the 1971 Act, and unaware of his rights to claim compensation, and I consider that his failure to serve his claim resulted from that ignorance. The claim should be deemed to have been served in accordance with section 54(c) of the 1971 Act. On the evidence however, I am of the view that from 1992 onwards, the applicant had the necessary information available to him in the Resettlement Handbook and in addition had lodged a claim with the Department of Veterans' Affairs. Although in my view of the matter the applicant's claim for compensation may be deemed to have been served pursuant to section 54 of the 1971 Act, he has not satisfied section 53 of the 1971 Act.
For all these circumstances I am satisfied that the 1971 Act does not apply to the applicant's injury, and in accordance with section 124 of the 1988 Act, the applicant is not entitled to compensation, in accordance with the 1988 Act. Accordingly, the claim should not be admitted or entertained. I am satisfied that the Tribunal does not have jurisdiction to entertain the applicant's claim for compensation for an injury allegedly suffered on 19 August 1973.
For these reasons, the Tribunal decides that it does not have jurisdiction to hear and determine the applicant's application for review, lodged on 19 March 1999.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Personal Assistant
Date of Hearing  21 December 1999
Date of Decision  17 April 2000
Counsel for the Applicant        Miss C. Hokin
Solicitor for the Applicant         Lempriere Abbott McLeod
Counsel for the Respondent    Mrs N. Cross
Solicitor for the Respondent    AGS