Caulfield and Comcare (Military Compensation and Rehabilitation Section)
[2004] AATA 855
•17 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 855
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1538
GENERAL ADMINISTRATIVE DIVISION ) Re RUSSELL CAULFIELD Applicant
And
COMCARE (MILITARY COMPENSATION AND REHABILITATION SECTION)
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date17 August 2004
Place Sydney
Decision The decision under review is affirmed in respect of the depressive disorder with the Tribunal varying the decision to exclude consideration of cervical spondylosis as there was insufficient evidence for the Tribunal to make such a diagnosis.
[Sgd] Dr J D Campbell
Member
CATCHWORDS
WORKERS COMPENSATION - incident in 1966 - diagnosis - claim for compensation 2002 - failure to notify and lodge a claim within six months - nature of injury/disease - evidentiary issues – decision under review affirmed with respect of the depressive disorder with Tribunal varying decision to exclude consideration of cervical spondylosis due to insufficient evidence.
Safety, Rehabilitation and Compensation Act 1988, section 124 (1988 Act)
Commonwealth Employees’ Compensation Act 1930-1970 sections 4, 9, 9a, 10 and 16 (1930 Act)
Commonwealth of Australia v Connors (1989) 86 ALR 247
Black v City of South Melbourne [1963] VR 34
Quinlivan .v Portland Harbour Trust ]1963] VR 25
Commonwealth v Rutledge (1964) 111 CLR 1
Re Wright and Commonwealth of Australia (1988) 14 ALD 567
REASONS FOR DECISION
17 August 2004 Dr J D Campbell, Member 1. In this matter, Mr Russell Caulfield (“the Applicant”) seeks compensation for major depression and cervical spondylosis arising from a motor vehicle accident, which occurred on 22 March 1966 during a period of Navy service. Mr Caulfield noted that he reported and received treatment for his injury/illness on 22 March 1966 in his claim for compensation lodged with Comcare (Military Compensation and Rehabilitation Section) (“the Respondent”) on 30 May 2002 (T48).
2. On 16 August 2002 the Respondent disallowed the Applicant’s claim citing that the Applicant had not lodged his claim within six months of injury/illness pursuant to section 16 of “the 1930 Act”. As compensation was then not payable under “the 1930 Act”, the Applicant had no entitlement to compensation pursuant to section124 (10) (b) of “the 1988 Act” (T56).
3. On 10 September 2002 the Respondent affirmed the determination dated 16 August 2002, stating that even if the claim was to be entertained pursuant to section 16 of “the 1930 Act”, liability would not be admitted for cervical spondylosis and/or major depression. The Respondent contended that a failure to give notice of the injury within the time prescribed had caused prejudice to the Commonwealth; that the Applicant had been made aware of his rights under “the 1930 Act” at his discharge medical examination of 16 June 1996 and elected not to pursue compensation even though he believed he was then suffering from depression “due to inability to adjust myself to service life and conditions” and that his condition had been due to or aggravated by his service; that ignorance of the law does not constitute, by itself a mistake or by itself constitute other “reasonable cause”; that as such the Applicant failed to meet the requirements of section 16 of “the 1930 Act”, with the Applicant having no entitlement to compensation under section 124 (10) of the 1988 Act, as no entitlement existed to compensation under “the 1930 Act” (T62).
4. The Respondent also went on to consider the claim, as though it had been accepted for consideration. The Respondent denied liability for the cervical spondylosis on the grounds that there was no objective evidence that the claimed cervical spondylosis occurred by accident arising out of or in the course of Navy employment, nor to substantiate any causal nexus between his current condition and that employment. The Respondent concluded that as the Applicant did not satisfy section 9 of “the 1930 Act”, compensation was not payable pursuant to section 124 (2) of “the 1988 Act” (T62).
5. The Respondent denied liability for the Applicant’s major depression, as he was not satisfied that the accident of 22 March 1966 arose out of or in the course of the Applicant’s employment. Further, the Respondent did not believe that the disease of major depression was due to the nature of his employment as required by section 10 of “the 1930 Act” (T62).
ISSUES
6. The relevant issues in this matter are:
a)whether the Applicant satisfies section 16 of “the 1930 Act” in relation to both serving notice of injury/disease, and making a claim for compensation; and
b)whether the Commonwealth suffered a prejudice by the want of any defect or inaccuracy in the notice; and
c)whether the accident on 22 March 1966 arose out of or in the course of the employment by the Navy; and
d)whether the Applicant’s disease of major depression was due to the nature of his employment; and
e)whether the Applicant was entitled to payment of compensation pursuant to section 124 of “the 1988 Act”.
DECISION
7. Following a consideration of all the evidence and for the reasons outlined later in this decision the Tribunal concludes that the Applicant is not entitled to compensation for his neck pain, yet to be diagnosed, and his disease of major depression pursuant to section 124 of “the 1988 Act”.
APPLICANT’S EVIDENCE
8. Mr Caulfield told the Tribunal that he was born on 8 March 1945, left school at age 15 following the completion of his intermediate certificate, returned to the United Kingdom with his parents where he was apprenticed as an electrician for two and half years. Mr Caulfield stated that he returned to Australia in March 1965. Mr Caulfield stated that he underwent recruit training at HMAS Cerberus before joining HMAS Sydney in July 1965. Mr Caulfield stated that he travelled on HMAS Sydney to Vietnam and was posted back to HMAS Cerberus in early 1966 for further training within the electrical school. Mr Caulfield told the Tribunal that he commenced drinking and smoking while in the Navy.
9. Mr Caulfield told the Tribunal that one afternoon (22 March 1966) he was asked to go to HMAS Lonsdale in Port Melbourne. Mr Caulfield believes he left HMAS Cerberus late in the afternoon, although he is unable to remember the reason why he had to go to HMAS Lonsdale, nor can he remember any details as to paperwork. Mr Caulfield states that he remembers being a passenger in the vehicle, that the car in which he was travelling hit gravel near Box Hill, that the car rolled and he was thrown out. His first memory is of waking up in the Box Hill Hospital when he was being assisted by a nurse to urinate. Mr Caulfield believes he was sutured around the nose and lips at both Box Hill Hospital and when he was transferred to Flinders Naval Hospital on 23 March 1966. Mr Caulfield remembers little about the accident and the circumstances surrounding it, and in particular as to why he was in Box Hill where the accident happened, as this was not the direct route from HMAS Cerberus to HMAS Lonsdale. He does however remember his mother being flown to the naval hospital from Sydney, while he was an inpatient. Mr Caulfield stated that he remained in the naval hospital for four or five days, before being granted some rehabilitation leave which he spent with his parents in Sydney with his discharge from hospital to light duties on his return, and with an expectation that he would later be admitted for a nose straightening operation. Mr Caulfield spoke of having passed out a few times and the nose operation was never performed. Mr Caulfield then spoke of attempting suicide on two occasions (one an overdose of Amytal tablets) as he was unable to cope with the activities in the electrical school in that he was unable to concentrate since he was suffering severe headaches.
10. Mr Caulfield stated that he was readmitted to Flinders Naval Hospital a few weeks after his earlier discharge; that he was seen by a psychiatrist; was admitted to Larundel Psychiatric Hospital for a few weeks; was transferred back to Flinders Naval Hospital; that he was recommended for discharge from the Navy and that he was discharged from the Navy in July 1966.
11. Mr Caulfield stated that he returned to Sydney after his discharge and lived with his parents. For quite a long time Mr Caulfield stated that he did nothing and after 18 months he did a few odd jobs. Mr Caulfield stated that he again attempted suicide in 1968/69 and was made a day patient at Broughton Hall. After a few months Mr Caulfield stated he was discharged, and he commenced working at Standard Telephones and Cables as an Inspector, a job which he found boring and he later left. Mr Caulfield stated that he next worked on his own account as a handyman/gardener, activities which he enjoyed. In the early seventies Mr Caulfield told of getting a job with the PMG in Katoomba, as a technician’s assistant which he ceased in 1973, shortly before he married his wife for the first time. Mr Caulfield stated that he and his wife had four children, divorced in 1990, remarried in 1995 and that he disappears into the bush for lengthy periods when things are difficult. Mr Caulfield indicated that he has only undertaken odd jobs since 1973, receives a class A DFRDB pension, a service pension and a disability pension.
12. Mr Caulfield described his medication as commencing with Amytal and tryptanol while in the Navy and a bottle given to him at time of discharge. Later tryptanol and librium were prescribed for him by Drs Simpson and Rozarti, but at this time he is taking Efexor and Valium, as well as Temaze.
13. Mr Caulfield stated that he had never applied for compensation because he did not know that he could until informed that he could when he had applied for a veterans’ affairs pension. Mr Caulfield stated that even though it is documented that he was entitled to claim compensation at the time of his discharge, he cannot remember being told about it, and that he never submitted a claim because he never knew he could.
14. Mr Caulfield stated initially that there was no family history of depression and/or psychiatric illness, but later in cross-examination he agreed that his father’s cousin and his brother may have had a psychotic episode and depression respectively.
15. Mr Caulfield in response to questions in cross-examination stated:
·that all reports of Professor Waring produced to the Tribunal were created by Mr Caulfield and that they were forgeries to help him persuade other people to accept his claim;
·that the purported report from Hunter Medical Research Institute was a fabrication;
·that the matter had been reported to the N.S.W. Police, that they had investigated; that Mr Colbourne, who had been acting for him spoke with Professor Waring who told Mr Colbourne that the reports were not of his making and that he had never seen Mr Caulfield; that Mr Caulfield admitted to Mr Coulbourne that they were fabrications; that he admitted to the police that they were fabrications, that he was charged, pleaded guilty to the charge and found guilty;
·that the report from the Victorian Police was an unofficial report; that he had spoken with Senior Constable Ellis, and that he had faxed the report; that he spoke twice with the records department of the Victorian Police Department; that the faxed report indicates a motor vehicle accident occurring at Box Hill on 23 March 1966; that he again confirmed that the report was faxed to him from the police records section in Victoria;
·that the events concerning the accident on 22 March 1966 were relayed to him by the driver, whose name he is unable to remember; that he did not know whether he was on leave or not at the time while he believes he was told by his mother that he was on duty, she having been told by someone else;
·that in terms of alcohol consumption he has gone on binges in the past, averaging once every six months until four to five years ago; that during 2002 he was drinking eight half cups of rum per day plus two to three beers two to three days a week; that that has currently decreased to five half cups of rum per day; that this was inconsistent with what he had reported drinking in 2002 on 13 April 2002 (6 rums plus 6 beers, T39 p78); that he did not wish to discuss the matter further; that the report of Dr George of March 2003 states that he has been binge drinking since age 35 and that each binge episode may last up to 14 days has been taken out of context in part, but he did admit to using alcohol as a form of a crutch when he gets worried at times;
·that as a matter of probability he could have been told about his rights under the Commonwealth Employees Compensation Act 1930 and the Repatriation Acts, but as far as he knows he was not.
MEDICAL EVIDENCE
16. A review of the Navy medical records reveals the following information:
· episodes of low back pain in July and August 1965 requiring hospitalisation for lumbar strain;
· that he was admitted for appendicitis on 22 February 1966, underwent an appendectomy and was discharged on 9 March 1966 while still serving on HMAS Sydney;
· that he was admitted to Flinders Naval Hospital on 23 March 1966 upon transfer from Box Hill Hospital following a motor vehicle accident on 22 March 1966. His diagnosis was concussion and lacerated face. He was discharged to light duties on 29 March 1966;
· admitted to Flinders Naval Hospital on 4 April 1966 with a history of severe right parietal headaches and two episodes of vertigo, headache and loss of consciousness; discharged to light duties on 13 April 1966 nothing abnormal having been detected during his hospital stay;
· admitted to Flinders Naval Hospital on 9 May 1966, following two minor attempts of suicide. Seen by Dr Bartholomew, consultant psychiatrist on 23 May 1966 who considered the Applicant to be suffering from a gross agitated depression, recommended his transfer to a psychiatric hospital and that he was basically unsuited to any service and that finally he would have to be discharged;
· admitted to Larundel Hospital 23 May 1966 to 10 June 1966 for treatment of depression and seen by Dr Reynolds, consultant psychiatrist who considered that the Applicant’s prognosis was not good and that he should be discharged from the service;
· admitted to Flinders Naval Hospital on 10 June 1966 on transfer from Larundel Hospital with a diagnosis of depression and discharged on 21 June 1966;
· that in his medical statement on discharge on 16 June 1966 the Applicant indicated that he was suffering from depression, which was “due to an inability to adjust myself to service life and conditions” (T31);
· that in a medical survey report with a Navy officer date stamped 4 July 1966 it is noted that the Applicant is recorded as having been made aware of his rights under the CEC Act and that he had not lodged a claim at that time (T33).
17. In 1968 the Applicant was admitted to Broughton Hall Day Hospital for a two month period and diagnosed as having a personality disorder (passive aggressive) and psychoneurotic depression (Exhibit R3).
18. Documents provided by the Defence Force Retirement Benefits Board notate a continuing history of episodic short term employment by the Applicant from 1966 onwards with increasing periods of employment. His psychiatric symptoms throughout were described by the Applicant as depression, irritability, headache and loss of sleep, with a diagnosis of depression (Exhibits A3 and R10).
19. In a medical report dated 24 December 2002, Dr Duke, a consultant psychiatrist, concluded that the Applicant suffered from an amnestic disorder, a mood disorder (depression) and a personality disorder, which he considered are due to a head injury at the time of the motor crash in 1966 (Exhibit A2).
20. In a report dated 5 April 2003, Dr George, a consultant psychiatrist, concluded that the Applicant suffered a major depression in 1966 following a car accident, with a decreased level of functioning since that time. Dr George also stated that the Applicant had a mixed personality disorder related more likely to alcohol abuse and benzodiazepines abuse or possibly to the closed head injury in 1966. Dr George also reported a significant short term memory deficit and that his depressive disorder may well have been bound to his motor vehicle accident, and that this accident has contributed in a material degree to his mental state over time (Exhibit R2).
21. In a further undated report following his assessment of the Broughton Hall clinical notes relating to the 1968 admission, Dr George changed his diagnosis to a primary diagnosis of personality disorder with any depression being related to that diagnosis, that is maladaptive responses to environmental stresses and also, ongoing difficulties in relationships (Exhibit R2).
22. In a report dated 13 October 2003, Dr Lambeth, a consultant psychiatrist, detailed the Applicant’s condition as one of chronic depression and anxiety disorder, which was almost certainly due to the motor vehicle accident in 1966 (Exhibit A1).
23. A discharge summary dated 4 March 2004 records the Applicant as having been admitted to James Fletcher Hospital for a period of two weeks prior to being transferred to Lingard Private Hospital where he remained for a further two weeks. The diagnosis was recorded “? organic PD”, and “impulsive control disorder” with major depression disorder in remission. A CT scan, a radionuclide cerebral blood flow study and an electro encephalogram investigation were reported as essentially normal (Exhibit A4/5).
24. The Applicant lodged a claim for a disability pension with the Repatriation Commission on 13 April 2002 on account of severe depression and neck pain, having earlier been granted a service pension (invalidity). This claim was denied on 22 May 2002 (T45). As a result of discussions following the claim refusal that the Applicant lodged his claim for compensation on 30 May 2002 (T48).
OTHER EVIDENTIARY MATERIAL
25. In a statement dated 13 April 2004 (Exhibit R5) Inspector Tom Rawlings of the Victorian Police, detailed his comments on the letter purported to have been sent to the Applicant on 13 June 2003 by Senior Constable Ellis of the Victorian Police. Inspector Rawlings stated that he did not believe the letter to be an authentic police document for the following reasons:
·that there are a number of differences between the official police form and the letter, namely:
a)there is no box around the Victoria Police badge/logo on the official form as there is on the letter;
b)address locations are located on official forms in the top right hand corner. All Victoria Police correspondence has a full return address to enable return enquiries. The letter does not include an address and the wording “Archived Report Unit” is not the manner in which address locations are included on official documents.
c)the 150th celebration graphic was not added to any forms in that manner;
d)the font used in official Victoria Police documents is either Times New Roman or Ariel. The font used in the letter is neither of those fonts.
e)that he has been advised that the font used at the bottom of the letter is not included in the Victorian Police suite of forms, as the graphic takes up too much computer memory;
f)that he has been advised that there is no Archived Report Unit at St Kilda , with Victorian Police Archives being located at Collingwood and Oakleigh, where they are staffed by public servants;
g)that he has been advised the Victoria Police has not retained any hard copies of reports created in 1966, and that the letter is not in Victoria police accident record format which would be generated by any enquiry about records;
h)that a search of police personnel data bases records that there is no serving member by the name of Senior Constable J Ellis; the most recent member by that name was discharged on 25 September 1999;
i)that the signature block at the bottom of the letter does not include the official registered number of the signing member, a police requirement for a police member of non-commissioned rank.
26. Inspector Rawlings confirmed his opinion that the report was not genuine in oral evidence presented to the Tribunal on 15 April 2004, adding that the report was inconsistent as to detail as regards time and date, namely 5.18pm on 23 March 1966. In so stating, Inspector Rawlings reiterated and explained further the reasons nominated in his report of 13 April 2004.
27. In a written statement dated 8 April 2004, Ms McOrist, a research officer with the Dandenong Repository of Defence Archives, concluded that following a detailed review of Mr Caulfield’s relevant service records, there was no reference to any Board of Inquiry or investigation into a motor vehicle accident in March 1966. Ms McOrist established that there was a bed ticket indicating that the Applicant was admitted to Box Hill Hospital on 22 March 1966 and transferred to Flinders Naval Hospital on 23 March 1966 (Exhibit R6).
28. In a written statement dated 8 April 2004 Mr Paul Galvin, a Defence Archives Deputy Team Leader at the Queanbeyan Repository of Defence Archives stated that following his review of the personnel cards for the Applicant and the driver of the vehicle, he was unable to find any reference to a motor vehicle accident, a Board of Inquiry, or an investigation in relation to a motor vehicle accident in 1966 (Exhibit R7).
CONSIDERATION AND FINDINGS
29. In this matter the Tribunal is aware that the Applicant’s credibility is a significant issue. The Tribunal notes that the Applicant admits to creating a series of reports from the Hunter Medical Research Institute (Professor Waring et alia) to assist him in having others understand the nature of his case. The Tribunal notes that he has admitted to the N.S.W. Police his wrong-doing in this regard and has been convicted in relation to these offences.
30. The Tribunal also notes the correspondence from the Victoria Police in relation to the accident in March 1966. With the assistance of the evidence from Inspector Rawlings of the Victoria Police, the Tribunal concludes that the letter from Senior Constable Ellis of 13 June 2003 to the Applicant is not a letter written by Senior Constable Ellis, nor are the contents contained within available records from existing records of the Victorian Police Department. In short, the Tribunal considers the letter to be a work of fiction, with much evidence suggesting that the Applicant is the source of such fiction – a matter which the Applicant denies, although he does admit to talking with a Senior Constable Ellis, who faxed him the report, and twice with the records department of the Victorian Police Department.
31. The Tribunal considers it unfortunate that the Applicant has sought to construct evidence in the way he has done for the basic detail of the accident in March 1966 and his ongoing psychiatric illness has been clearly detailed in a number of reports over time. As a consequence of the Applicant’s activities in relation to construction of evidence, the Tribunal, in recognising that the psychiatrists have all detailed the Applicant’s difficulty with memory, must be careful in accepting the Applicant’s account of issues, unless corroborated by written documentation pertinent to an event/issue and written at a time relatively congruent with the issue/event being considered.
32. As indicated earlier the Tribunal concludes that the Applicant was involved in a motor vehicle accident in the evening of 22 March 1966. As a consequence he was admitted to the Box Hill Hospital and transferred to the Flinders Naval Hospital on 23 March 1966. The Tribunal observes that the Applicant was treated for concussion and facial laceration on that occasion.
33. The Tribunal acknowledges that the Applicant is unable to remember whether he was on duty at the time of the accident. His only knowledge of such an event is that someone told his mother at the time that he was. Contrary material before the Tribunal suggesting that he was not on duty at the time of the accident includes:
·no record that he was on duty
·no record of any enquiry/investigation by the Navy that a Navy vehicle was involved in an accident on 22 March 1966 (Exhibit R 6, 7, 8)
·no record in the medical notes that he was on duty at the time of the accident (report of Ms Breakwall – Exhibit R8)
·that the accident occurred at Box Hill, when the Applicant stated that they were travelling from HMAS Cerberus (Flinders) to HMAS Lonsdale (Port Melbourne), with the consequence that the accident occurred at a place removed from the direct route between the two navy establishments
·that Dr Slaughter records in his report of 24 September 1982 that the Applicant was on night leave at the time of the accident.
34. With this being the sum total of evidence on this issue, the Tribunal concludes that there is insufficient evidence to find, on the balance of probabilities that the Applicant was on duty at the time of the accident, and accordingly finds that the Applicant was on leave at the time of the accident in the evening of 22 March 1966.
35. In turning to the diagnosis of the Applicant’s conditions, the Tribunal is satisfied again on the balance of probabilities, that the Applicant suffers from neck pain, not yet diagnosed and a psychiatric condition best described as primarily:
·a personality disorder with secondary related diagnosis of:
·a depressive disorder
·an amnestic disorder
·alcohol abuse/dependency.
36. The Tribunal is mindful that the Applicant has been subject to serial psychiatric review as part of the pension process and that many of the psychiatric reports refer to his continuing mental health symptomatology of poor concentration, depression, irritability, tension headaches, explosive nature, difficulty sleeping (Drs Slaughter, Murphy). The Tribunal also notes the opinions of Dr Greenberg and Dr Lambeth that raise the issue of a relationship between the depression and a closed head injury suffered in March 1966.
37. The Tribunal also notes the opinion of Dr Duke, who said that the Applicant’s depression is related to the closed head injury of March 1966. More importantly in the Tribunal’s view is the opinion of Dr George, who initially was inclined to a similar opinion to Dr Duke, but who after reading the clinical notes from Broughton Hall, which included results of particular diagnostic tests, altered his opinion to the effect that the Applicant did not suffer any significant brain damage as a result of his motor vehicle accident in 1966. Dr George also considered that any cognitive impairment to the present day probably relates to abuse of alcohol over time. Dr George concluded that the primary diagnosis was one of personality disorder, with any subsequent depression relating to that diagnosis. Further, Dr George believes “that much of Mr Caulfield’s behaviour over time relates to the presence of a significant personalty disorder which has tended to colour his presentations to psychiatrists over time”.
38. The Tribunal, in preferring the opinion of Dr George, observes that Dr Duke in his report laments the absence of current psychiatric reports, apparently having access only to the reports of Drs Slaughter and Murphy and not to the clinical notes from Broughton Hall. Further, the opinion of Dr George is given with the knowledge of the investigations undertaken at Broughton Hall, and which allowed him to conclude that the Applicant had not suffered any significant brain damage in the March 1966 accident – an issue which had been raised by Dr Greenberg and never apparently followed through at that time. Finally the Tribunal expresses its disappointment at having not received a detailed opinion from Dr Lambeth, which would have allowed the Tribunal to understand the basis of his opinion.
39. In summary the Tribunal concludes that the Applicant’s psychiatric diagnosis is primarily that of a personality disorder with other DSM IV diagnoses of depression, alcohol abuse/dependence and memory deficits arising as a consequence of the primary disorder.
40. In addressing issues of neck pain, the Tribunal notes that the Applicant did not wish to pursue his claim in relation to what has been stated by the Repatriation Commission to be cervical spondylosis, because it was not worrying him (Transcript page 22). As indicated earlier there is insufficient material before the Tribunal for the Tribunal to make a diagnosis other than that of neck pain yet to be diagnosed. While the diagnosis may well turn out to be cervical spondylosis, the only material before the Tribunal is the brief comments of Dr Kirkpatrick (T39/71). In the light of the Applicant’s statement above, a diagnosis of cervical spondylosis would need radiological confirmation.
41. In considering the issue of compensation for the psychiatric disorder diagnosed, the Tribunal notes that section 124(2) of “the 1988 Act” requires that for compensation to be payable under the Act, compensation must have been payable under “the 1930 Act” (section 124 (2) (b) of “the 1988 Act”).
42. Section 16 of “the 1930 Act” provides:
“16 Time for taking proceedings
(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 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.”
43. The Tribunal, in noting the deeming of notice having been served and a claim having deemed to having been made provisions in section 16(4) of “the 1930 Act” as regards a disease, as is the condition in this matter, concludes that neither notice or deemed notice of the accident nor the claim or deemed claim for compensation were served within the nominated time frame.
44. As regards prejudice to the Commonwealth there is much evidence in the Tribunal’s view to support the contention that both parties are subject to evidentiary difficulties as a consequence of the delay in the Applicant serving of notice and making a claim for compensation. A delay in both giving the notice of the accident and making a claim for compensation of some 36 years has made enquiry by the Commonwealth as to the nature and circumstances of the accident and the leave status of the Applicant an impossible task as evidenced by the absence of police records (destroyed 1996) and the absence of any Navy records indicating the nature and circumstances of the accident and the leave status of the Applicant. While the Tribunal is satisfied that an accident did occur on 22 March 1966 at Box Hill, the Tribunal finds that there is an absence of evidence to further resolve important issues surrounding the accident (eg whether the Applicant was on duty). Further, the Tribunal observes that while clearly the Applicant suffered a physical injury as a consequence of that accident, the Commonwealth is clearly in difficulty in exploring the nature of the Applicant’s mental health disorder, in that supervisors reports of the Applicant’s progress during his truncated Navy career would be important in considering and determining the nature of the personality disorder both before and after the accident in March 1966, that is in the context of his Navy service. In substance the Tribunal concludes that both the Applicant and the Commonwealth have suffered detriment as a consequence of the Applicant’s failure to give notice and make a claim, with the Applicant’s detriment being his inability to remember anything about the accident and having to rely upon limited records to pursue his claim. In summary the Tribunal concludes that the Commonwealth is prejudiced by the delay of 36 years in the Applicant giving notice and making a claim for compensation for the reasons outlined.
45. In turning to a consideration of whether the Applicant’s failure to notify or make a claim was occasioned by mistake or other reasonable cause, the Tribunal is mindful that mistake includes mistake of law as well as of fact, but ignorance of the law in the sense of a failure to advert to the existence of right to claim does not constitute by itself, a mistake, and cannot, by itself, constitute other reasonable cause (Commonwealth of Australia v Connors (1989) 86 ALR 247)
46. The Tribunal, in noting the Applicant’s evidence, would conclude that the Applicant at first glance would appear to rely upon the fact that he was not made aware that he had a duty to notify and a right to claim compensation for his injury/disease. However, later on in his evidence he agrees that he probably was made aware of the right to claim compensation, as suggested by the documentary evidence contained at paragraph 14(b) T33 p54, and that his failure to do so was occasioned by his mental condition, depression, and the treatment thereof (tryptanol). His continued failure to notify or make a claim was in turn occasioned by his memory loss, his continuing depression and treatment and it was not until his claim for his depression to be recognised under the Veterans’ Entitlement Act that he was advised and reminded of his rights to claim compensation, which he then did.
47. In assessing the Applicant’s evidence, the Tribunal is reminded that on two occasions the Applicant was made aware of his rights to claim compensation (the item in his medical survey report of 4 July 1966 referred to above and item 11 in his final medical board report on 16 July 1966 (T31 p52). His failure to do so until advised to do so some 36 years later does not in the Tribunal’s view arise from either ignorance or mistake. The Tribunal in noting the Applicant’s continuing and extensive psychiatric history after his discharge and for a condition that related to his reason for discharge, is satisfied that the psychiatric condition for which he was discharged and the treatment thereof plus the subsequent deterioration in his condition which clearly relates to memory loss as a consequence of both his initial condition and the effects of alcohol and drug abuse constitutes a reasonable cause for the Applicant failing to notify and lodge a claim for compensation within the nominated time constraints (Black v City of South Melbourne [1963] VR 34 at p38 and Quinlivan v Portland Harbour Trust [1963] VR 25 at p28 considered and applied).
48. In continuing with the analysis and on the premise that the claim is open to consideration the Tribunal notes that section 9 of “the 1930 Act” defines that compensation for personal injuries by accident must arise out of or in the course of his employment by the Commonwealth. The Applicant’s case at best is that his continuing depression is a consequence of his motor vehicle accident on 22 March 1966. As the Tribunal has earlier found that the Applicant was not on duty at the time of the motor vehicle accident on 22 March 1966, and that the condition claimed, depression, is both a consequence and a disease the Tribunal concludes that in such circumstances the Applicant’s claim for depression as a consequence of personal injury pursuant to section 9 must fail as the injury did not arise out or in the course of his Navy service employment.
49. In addressing a further and final aspect of the Applicant’s claim for compensation, namely that his depression “was due to inability to adjust myself to service life and conditions”, that is his depression was a disease due to the nature of his employment as per section 10 of “the 1930 Act”, the Tribunal would make the following observations:
·the depressive disorder was associated with the Applicant’s personality disorder as defined by Dr George and accepted by the Tribunal;
·that the personality disorder was a pre-existing condition with the depressive disorder being a consequence of the Applicant’s pre-existing condition interacting with environmental influences, which included the nature of his Navy employment, and the motor vehicle accident in March 1966;
·that there was no evidence before the Tribunal to suggest that the employment in which the Applicant was engaged was of a kind that has been found or is likely to aggravate, accelerate or to cause exacerbation of the pre-existing disease in a significant proportion of persons with that pre-existing disease engaged in that employment to any greater extent than a significant proportion of such persons in employment generally;
·that the Applicant’s depressive disorder cannot be said to have arisen as a consequence of altered Navy duties, the pre-existing disorder being a personality disorder (Commonwealth v Rutledge (1964) 111 CLR 1 considered and distinguished);
·that there is evidence suggesting that the depressive disorder arose after the motor vehicle accident of March 1966 and that the accident may have a part to play in the clinical onset of the depressive disorder;
·that there is no evidence before the Tribunal that aggravation and/or acceleration of the Applicant’s personality disorder and/or the associated depressive disorder which demonstrates that the nature of his Navy employment gives rise to an increased incidence of those conditions as opposed to that which occurs with employment generally;
·that the Tribunal is mindful that “there is no room for a partial attribution of cause. The notion of contribution is absent from the definition of disease and from section 10. A mere contribution is not sufficient for this purpose”. (In Re Wright and Commonwealth of Australia (1983) 14 ALD 567).
50. In summary there is an absence of material before the Tribunal which would allow the Tribunal to be satisfied that the Applicant’s depressive disorder was due to the nature of his employment. Indeed there is material which would suggest that his motor vehicle accident in March 1966 may have made a contribution to the depressive disorder, with the Tribunal having already concluded that the accident did not arise out of or in the cause of the Applicant’s employment. As a consequence the Tribunal concludes that the Applicant is not entitled to compensation under “the 1930 Act” and hence no entitlement under section 124 (2) of “the 1988 Act”.
DETERMINATION
51. The decision under review is affirmed in respect of the depressive disorder, with the Tribunal varying the decision to exclude consideration of cervical spondylosis, as there was insufficient evidence for the Tribunal to make such a diagnosis.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: Neil Glaser
AssociateDate/s of Hearing 14, 15 January 2004, 15 April 2004
Date of Decision 17 August 2004
Representative for the Applicant Self-represented
Counsel for the Respondent Mr J Johnson
Solicitor for the Respondent Ms L Rieper
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