Comcare Australia v McGuire, Alexander Kyle
[1996] FCA 683
•7 AUGUST 1996
C A T C H W O R D S
COMMONWEALTH EMPLOYEES' COMPENSATION - ear infection during swimming training in the course of army service in 1951 - infection caused perforation of ear drum - perforation destroyed most of hearing in that ear - claim made under Safety Rehabilitation & Compensation Act 1988 - application of transitional provisions - claim for lump sum for permanent impairment - whether compensation "was payable in respect of that injury" under the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act") - the 1930 Act provided for lump sum compensation for hearing loss sustained by accident arising out of or in the course of employment - whether personal injury by accident arising out of or in the course of respondent's employment - or whether "disease" - whether entitlement arose independently of such considerations simply by application of s.12 and Third Schedule of 1930 Act - admissibility of claim - failure to give notice and make claim within time - excuses for - mistake or other reasonable cause - ignorance of rights - soldier in army - applicant under impression that soldiers did not enjoy same workers' compensation rights as other Commonwealth employees - mistake of law - mistake as to legal status - whether, having found mistake and reasonable cause, Tribunal obliged to consider possible prejudice to employer.
Safety Rehabilitation & Compensation Act 1988 (Cth) ss.4(1), 14(1), 24(1), 25, 123A, 124(1), 124(1A), 124(2), 124(3), 124(4), 124(10)
Commonwealth Employees' Compensation Act 1930 (Cth) ss.9(1), 10, 12, 16(1), 16(4)
The Commonwealth v. Hornsby (1960) 103 CLR 588
Favelle Mort Ltd v. Murray (1976) 133 CLR 580
Wilson v. Wilson's Tile Works Pty Ltd (1960) 104 CLR 328
Johnston v. The Commonwealth (1982) 150 CLR 331
Bird v. The Commonwealth (1988) 165 CLR 1
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481
Brennan v. Comcare (1994) 50 FCR 555
Schlenert v. Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139
Delahunty v. The Commonwealth (1981) 53 FLR 9
Miles v. Northern Territory Fire Services (1989) 17 ALD 185
The Commonwealth v. Connors (1989) 10 AAR 395
Banks v. Comcare Australia (unreported Kiefel J, 22 May 1996, Judgment No. 382 of 1996)
Brintons Ltd v. Turvey [1905] AC 230
Miller v. J.W. Handley Pty Ltd (1948) 2 WCD (Vict.) 134
Comcare v. Miles (1995) 129 ALR 427
COMCARE AUSTRALIA v. ALEXANDER KYLE McGUIRE
No. WAG 147 of 1995
CARR J
PERTH
7 AUGUST 1996
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 147 of 1995
GENERAL DIVISION )
B E T W E E N : COMCARE AUSTRALIA
Applicant
andALEXANDER KYLE McGUIRE
Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 7 AUGUST 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The appeal be dismissed.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 147 of 1995
GENERAL DIVISION )
B E T W E E N : COMCARE AUSTRALIA
Applicant
andALEXANDER KYLE McGUIRE
Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 7 AUGUST 1996
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Administrative Appeals Tribunal made on 14 November 1995. The Tribunal set aside a review decision, made on 8 July 1994, by an employee in the Department of Defence acting as a delegate of Comcare Australia. The review delegate's decision affirmed a determination, dated 11 August 1993, by another delegate of Comcare (also employed in the Department of Defence) that the Department of Defence was not liable to pay compensation in respect of the respondent's claim for hearing loss. In his application to the Tribunal, the applicant (Mr Alexander Kyle McGuire, the respondent in these proceedings), who at all stages has been unrepresented, named the review delegate as "Delegate of Comcare Ex. Department of Defence" as the maker of the decision challenged. The application to this Court was in the name of "Department of Defence" as applicant. At the hearing of the present application, counsel for the applicant applied to substitute Comcare
Australia as the applicant. The respondent opposed that application. For the reasons which I then gave, I made an order in the terms requested by the applicant.
Factual Background
The following summary of the Tribunal's finding of facts is taken largely from its reasons for decision.
The respondent, who was born in Scotland on 19 December 1927, applied in the United Kingdom in January 1951 for enlistment in the Australian Regular Army. He was medically examined in Glasgow on 24 January 1951. That examination found, amongst other things, that the respondent's hearing in each ear was "good". The overall result of that examination was that the respondent was classified "A1". His application for enlistment was accepted and took effect in the United Kingdom from 31 July 1951.
The respondent arrived in Fremantle on 6 September 1951 and served in the Army until 30 July 1957. First, he was sent to Royal Park Barracks in Melbourne where he was "kitted out" and then sent to the School of Military Engineering at Casula, New South Wales for six weeks recruit training. During that period, on 2 November 1951, he suffered a spinal injury to his neck while undergoing swimming training in the Georges River. This resulted in the respondent being hospitalised in Concord Hospital for "a couple of months", during most of which time he was in traction.
The Tribunal asked the respondent about the first indication of hearing loss that he experienced. The Tribunal made specific findings (see paragraph 42 of its reasons) accepting the respondent's evidence in reply to this question. Those findings extended to the respondent's description of his history of problems with his left ear. The Tribunal also made a general credibility finding, stating that the respondent "impressed the Tribunal as a credible witness who gave his evidence in a genuine, forthright manner". The respondent said that shortly after his arrival at Casula, water got into his left ear while he was swimming at public baths. Subsequently, while in Concord Hospital following the neck injury sustained while swimming in the Georges River in November 1951, he developed a pain in his left ear. The respondent said that he complained about this to the nursing staff who gave him morphine, aspirin and "sulpha" tablets which he felt cleared up the problem. The respondent's evidence was that the next occasion upon which he had a problem with his left ear was during the Royal Tour in 1954. At that time he was in Canberra, stationed in a camp outside the Imperial War Museum. He sought medical treatment for his left ear at the camp and was informed by a doctor that he had "otitis media". Otitis media is inflammation of the middle ear. The respondent said that the doctor explained to him that otitis media involved an infection inside the ear which results in a blister which eventually bursts causing a discharge. He said that he was given ear drops and "sulpha" tablets and that the problem seemed to clear up a week later.
The respondent was then transferred to the Army Apprentices' School at Balcombe, Victoria where he spent the next three years as an instructor in regimental training, including training in the use of guns and rifles. His evidence was that this involved spending one day, or part of a day, on a rifle range every three months during which
60 recruits would each fire approximately 30 rounds. The respondent said that he would stand alongside - that is, a foot away from - the recruits while they were firing and that he wore no ear protection on these occasions.
The respondent sought treatment for his left ear on three occasions during his period at the Army Apprentices' School at Balcombe. On each occasion he was treated with ear drops which again "fixed the problem".
The respondent first noticed that he had difficulty hearing "a group of people speaking", when he was at Balcombe in 1952-1953. His hearing was the subject of comment and jokes among his fellow servicemen and the new recruits. They gave him the nickname "Eh?"
The respondent was then transferred to 22 Construction Squadron based at Karrakatta, Western Australia where he spent the next two years. During that period he was engaged mainly in building repair work involving the use of a large electric circular saw and a carborundum wheel which made a "high pitched screaming noise". He told the Tribunal that he never wore ear protection while doing this work. During his time with 22 Construction Squadron the respondent received explosives instruction on two occasions. This included the explosion of a "beehive" charge and the use of the explosive TNT for cutting steel. Again, the respondent said, he was not wearing ear protection at the time of these explosions. There was also an occasion when the respondent, after cutting asbestos and causing a lot of asbestos dust on a building at Swanbourne in Western Australia, had his left ear checked and cleaned out by an orderly.
The respondent's Army medical record referred to the following reported and treated injuries during his period of service:
.31 October 1951 - "traumatic paralysis both arms" as a result of falling on back of neck while wrestling in army camp;
.2 November 1951 - "injury to neck" - accident occurred in camp during swimming training in river; and
.1 April 1957 - "injury to right eye" - small piece of wood entered the eye while operating bandsaw during a manufacturing job.
On 29 May 1957, approximately two months before the respondent was due to be discharged from the Army, he was given a final medical examination. The Final Medical Board's report comprised a "Statement of Member" (Part 1) and the "Opinion of Medical Board" (Part 3). The respondent was the "Member". In the respondent's Part 1 statement the only disability referred to was an "injury to spine, result of accident, School of Engineering, Casula 1951". To the question "From what other disabilities, wounds or injuries have you suffered during your service?" the response recorded was "nil". Part 3 of the report recorded the results of the respondent's medical examination. The Board's opinion of the respondent's medical category was recorded as "Class 1". On 31 May 1957 the Board's opinion was confirmed and the applicant was given a "normal (non-medical) discharge". Before the Tribunal, the respondent conceded that at the time of his discharge he did not complain about any hearing problems. Part 1 of the Statement had been completed by an interviewing officer. The respondent said that he did not mention a hearing disability at the time because the interviewing officer was not a medical officer.
After his discharge from the Army, the respondent worked on large projects in the construction industry in Perth and Fremantle until 1960 when he moved to a country town in Western Australia. For approximately the following 20 years he was engaged in domestic gas installations and relatively light building work, including renovations, extensions, general maintenance and repairs, and making furniture.
In 1982 the respondent brought his mother-in-law from the country to the National Acoustic Laboratory in Perth for a hearing test. During that visit, his mother-in-law suggested to him that he should get a hearing aid. From that time he decided to take action in relation to his hearing problem.
The respondent's evidence (which on this matter in particular was once again accepted by the Tribunal as "entirely credible") was that, until he was advised otherwise by a Defence Department officer in 1982, he had been under the impression that members of the Army were in a different category from Commonwealth employees generally, and that he was unaware of the Commonwealth Employees Compensation Act 1930 (Cth) and his right as a member of the Army, rather than as an ordinary Commonwealth employee, to claim compensation under that Act.
The respondent told the Tribunal that after he became aware, in 1982, of his right to claim compensation, he had spent considerable time trying to obtain his Army medical and service records under the Freedom of Information Act 1982 (Cth). This was another piece of the respondent's evidence which the Tribunal specifically accepted. The Tribunal said that it regarded that as a reasonable explanation for the further
delay.
In December 1991 the respondent claimed compensation for "spine injury and hearing loss". In his claim form he provided the following information regarding the circumstances of the claimed hearing loss:
"Using weapons for instructing and recruit training without ear protection."
He also provided the following information regarding the dates of his exposure to excessive noise:
"Explosive - weapon instructing 1951-1954
Use of construction equipment 1957-58"
On 22 January 1992 the respondent completed a "Hearing Loss - Supporting Statement" form in which he stated that from 1951 to 1957 he received training in the use of explosives, was an instructor in the use of weapons, worked in a building and demolition workshop, and that at no time were protective muffs or plugs or any other form of ear protection provided.
On 6 November 1992, at the applicant's request, the respondent was examined by Mr D. Clements, an ear, nose and throat specialist. Mr Clements reported that the respondent was suffering from "noise induced hearing loss" and "left chronic otitis" and that these conditions were permanent. Mr Clements was reluctant to express a firm opinion on whether those conditions were related to the respondent's Army service because, at that stage, he did not have the respondent's Army medical file. Mr
Clements commented, however, that the respondent had mentioned to him "otitis media while in Canberra during Army service" and that, if this was substantiated by the medical file, this condition should be accepted as service-related.
In 1993 the applicant sought a further report from Mr Clements. Mr Clements had not examined the respondent further since 6 November 1992. Mr Clements' report, dated 21 May 1993, dealt with the clinical examination of 6 November 1992 and included the following observations, namely:
.that the respondent had a large dry central perforation of his left ear drum;
.that it was not possible for Mr Clements to say whether that perforation was associated with a reported ear infection many years earlier in the Army;
.however, the infection which caused the perforation did destroy most of the hearing in that left ear;
.the respondent had a sensori neural hearing loss in his right ear compatible with long exposure to excessive noise; and
.in the absence of the respondent's service medical documents it was quite impossible for Mr Clements to say when either of these two separate pathologies originated.
On 11 August 1993 a delegate of Comcare made a determination that the applicant was not liable to pay compensation in respect of the respondent's claim for hearing loss.
On 25 August 1993 the respondent requested a reconsideration of the delegate's determination and an extension of time to enable him to obtain documentary evidence relating to an "ear problem" he had reported, and for which he had received treatment, in 1954 while in Canberra. The respondent was granted an extension of time until 30
November 1993 in which to obtain this information.
By letter dated 19 October 1993 the Department of Defence Health Records Office informed the respondent that, despite a thorough search of its records and the medical records of Central Army Records Office, Department of Veterans' Affairs and Australian Archives, it was unable to locate any additional medical documentation.
By letter dated 18 April 1994 the Health Records Office advised the Department of Defence's Employee Rights and Military Compensation Section that there were no records relating to hearing loss or audiograms in respect of the respondent.
On 8 July 1994 a Comcare reconsideration delegate affirmed the determination of 11 August 1993 that the respondent's compensation claim for hearing loss be disallowed. On 8 September 1994 the respondent applied to the Administrative Appeals Tribunal for review of that determination.
The Legislative Framework
Part 10 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) ("the 1988 Act") contains transitional provisions dealing with the application of the 1988 Act to injury, loss or damage suffered by an employee before the commencing day of that Act (1 December 1988). Section 124 of the 1988 Act relevantly provides as follows:
"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)...
(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.
(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment ... being an impairment ... that occurred before the commencing date, if:
(a)...
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment ... :
(i)...
(ii)where the impairment ... occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the impairment ... occurred; or
(iii)in any other case - under the 1971 Act as in force when the impairment or death occurred."
The references to the 1930 Act and the 1971 Act are to the Commonwealth Employees' Compensation Act 1930 (Cth) and the Compensation (Commonwealth Government Employees) Act 1971 (Cth) respectively.
It is useful, at this stage, to note the separate references to "injury loss or damage" and "permanent impairment" in s.124(2) and (3) respectively. The respondent's claims were under ss.24 and 25 for whatever might be payable to him in respect of the permanent impairment to his hearing. Compensation of the type provided for by s.24 of the 1988 Act has long been an extra, in one sense separate, category of "lump sum"
compensation under Australian workers' compensation legislation, both State and Federal. Such claims were sometimes referred to, colloquially, as "Third Schedule claims".
Section 124(4) governs the amount of compensation which a person is entitled to receive under s.24 of the 1988 Act in respect of a permanent impairment which occurred before 1 December 1988. It relevantly provides as follows:
"124(4)The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment ... of an employee, being an impairment ... that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a)...
(b)where the impairment ... occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - the 1930 Act as in force when the impairment ... occurred; or
(c)in any other case - the 1971 Act as in force when the impairment or death occurred."
It is also necessary to refer to s.124(10) of the 1988 Act, which relevantly provides:
"124(10)Where:
(a)...
(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)...
that person is not entitled to compensation under this Act in respect of that injury".
Section 123A of the 1988 Act provides:
"A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force."
Relevant parts of the text of s.16 of the 1930 Act are set out later in these reasons.
Section 24(1) of the 1988 Act provides:
"Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury."
The following relevant definitions appear in s.4(1) of the 1988 Act:
""injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
"disease" means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth...;
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
"permanent" means likely to continue indefinitely;"
Sections 9(1), 10(1) and 12(1) respectively, of the 1930 Act provided:
"9(1)If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.
...
10(1)Where -
(a)an employee is suffering from a disease and is thereby incapacitated for work; or
(b)...
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.
...
12(1)Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column."
The term "injury" was defined in s.4 of the 1930 Act to mean "any physical or mental injury" and to include "the aggravation, acceleration or recurrence of a pre-existing injury".
The history of s.10(1) of the 1930 Act is described in the judgment of Taylor J in The Commonwealth v. Rutledge (1964) 111 CLR 1 at pp.5-6. Originally, the section gave a right to compensation for incapacity from earning full wages, or death, resulting from any one of a number of specified occupational or industrial diseases. The diseases were listed in the Second Schedule to that Act. Compensation was conditional on proof that such disease was caused within the preceding 12 months by the employment in which the employee was engaged by the Commonwealth. There was no definition of "disease" at that stage. Section 10(1) was introduced in its above form in 1948. At the same time the Second Schedule was repealed and a definition of
"disease" was inserted into the Act as including:
"any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease."
The purpose of this historical excursus is to demonstrate the work which ss.9, 10 and 12 of the 1930 Act were designed to do. Sections 9 and 10 were the route to the compensation entitlements listed in the First Schedule to that Act. By 1948 s.10 had gone quite a long way towards requiring the Commonwealth to pay compensation in accordance with s.9 of the 1930 Act where incapacity for work or death was caused by a disease which was "due to the nature of the employment". Those entitlements were in respect of death or total or partial incapacity for work. Typically, they took the form of weekly payments, payment of medical expenses and the like. In the case of death or redemption of weekly payments they included lump sum payments. But it was not the role of these two sections and the First Schedule to provide for entitlement to lump sum payments for specified injuries such as loss of hearing. Section 12 and the Third Schedule did that work.
The definitions in the 1988 Act are expressed in terms of "unless the contrary intention appears". The applicant contends that one of the errors of law made by the Tribunal was not to have regard to the definition of "disease" in the 1930 Act. It appears that the Tribunal did have some regard to the definitions of "injury" and "disease" in the 1988 Act - see page 11 of its reasons where those definitions are set out. However, at the next page, it also referred to the definition of "injury" in s.4 of the 1930 Act. I shall return below to that question.
The Tribunal's Findings and its Formal Decision
The Tribunal dismissed the respondent's claim in relation to the hearing loss in his right ear. In summary (see paragraph 43 of its reasons) the Tribunal noted the absence of evidence of any specific complaints or treatment or other incidents in relation to his right ear condition during his period of Army service. The Tribunal referred also to the respondent's Army medical record and his employment in the construction industry, during which he was generally exposed to excessive noise levels, immediately following his discharge from the Army. The Tribunal said that it was not satisfied that the respondent suffered, to a significant degree, hearing loss in the right ear arising out of or in the course of his employment. The respondent has made no challenge to any part of the Tribunal's determination.
In relation to the left ear, the Tribunal concluded as follows:
"The Tribunal accepts his evidence, outlined in paragraphs 21-24 above, that he developed an infection in his left ear in late 1951 in the course of his Army service and that, on a number of occasions thereafter during his service, he sought and received treatment for this infection in the way of aspirin, morphine and "sulpha" tablets, and ear drops, to relieve the pain. Accordingly, the Tribunal finds that the applicant suffered an injury - namely, chronic middle ear infection in the left ear and a patent perforation of the left ear drum - arising out of or in the course of his employment by the Commonwealth as a member of the Army during the period from 31 July 1951 to 30 July 1957. The Tribunal further finds, on the basis of the medical evidence, that this left ear condition is permanent and that the applicant's present left ear condition is a progression of his service-related left ear injury."
The Tribunal's formal decision was in these terms:
"The decision under review is set aside. The matter is remitted to the respondent for reconsideration in accordance with the direction that the respondent assess the applicant's entitlement to compensation under the
Safety Rehabilitation and Compensation Act 1988 on the basis of the Tribunal's findings that the applicant suffered the injury of chronic middle ear infection in the left ear and a patent perforation of the left ear drum arising out of or in the course of his employment by the Commonwealth as a member of the Australian Regular Army during the period from 31 July 1951 to 30 July 1957 and that such injury constitutes a permanent impairment."The Grounds of Appeal
The applicant contends that the Tribunal erred in law in failing to consider and apply the correct test upon which to determine the respondent's entitlement to compensation under the 1988 Act when read with the 1930 Act. In particular, the applicant says that the Tribunal considered and applied only s.9 of the 1930 Act, whereas the evidence was that the respondent suffered from a disease of gradual onset. The applicant contends that s.10 of the 1930 Act is the relevant provision, having regard to the definition of "disease" found in s.4(1) of the 1930 Act. The Tribunal erred in law, so it was put, by failing to consider and apply s.10 of the 1930 Act. It is therefore necessary to examine the legal principles which the Tribunal applied, conscious of the importance of not being over-zealous in such scrutiny: Minister for Immigration & Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481.
It is quite clear that the Tribunal took the view that by virtue of ss.24, 124(1), 124(1A) and 124(2) of the 1988 Act, and subject to Part 10 of that Act, compensation was payable to the respondent under the 1988 Act in respect of an injury suffered by him during his period of Army service, if compensation was or would have been payable to him in respect of that injury under the legislation that was then in force i.e. the 1930 Act.
It seems reasonably clear also that, in applying that test, the Tribunal treated the claims in respect of both ears as claims for compensation in respect of personal injury. The Tribunal referred only to the provisions of s.9(1) of the 1930 Act and the definition of "injury" in s.4 of that Act. It made no reference to s.10 of the 1930 Act which, as mentioned above, provided compensation in respect of diseases caused by the nature of an employee's employment and resulting in death or incapacity for work. Furthermore, the Tribunal did not refer to s.12 of the 1930 Act which would have been the source of any entitlement on the respondent's part to a lump sum payment (listed in the Third Schedule to that Act) for loss of hearing. As can be seen from the text of s.9 (set out above) it provides for the compensation referred to in the First Schedule to the 1930 Act. Section 12 does the same in relation to the permanent incapacities referred to in the Third Schedule. They are different types of claims.
If, in taking this course, the Tribunal erred in law then there could have been little, if any, room for criticising the Tribunal. First, the case was fought as an "injury" case. Counsel for the respondent before the Tribunal (not the same counsel as in this Court) referred the Tribunal to s.124 of the 1988 Act, and ss.9 and 16(1) of the 1930 Act. In my view, in one sense, the case was an "injury" case and no criticism can be levelled at counsel for this. It would appear that the case was fought before the Tribunal (in my view correctly) on the basis that the applicant in those proceedings was making his claim under s.24 of the 1988 Act for a lump sum payment. Counsel was obviously under that impression because in her final address she referred to ss.24(5) and (7) of the 1988 Act. Section 24(5) provides, in effect, that in determining the degree of permanent impairment of an employee resulting from an injury, Comcare shall apply
the provisions of the "approved Guide". Section 4 of the 1988 Act explains that the approved Guide means a document prepared by Comcare (which s.28 of the Act authorises Comcare to prepare from time to time) under the title "Guide to the Assessment of the Degree of Permanent Impairment". The approved Guide can be thought of, perhaps, as a modern day "Third Schedule" substitute. Section 24(7) provides that where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under s.24. In s.24(8) there are exceptions to that limitation which do not apply to this matter. When referring to ss.24(5) and (7) of the 1988 Act and Table 7.1 of the approved Guide, counsel for the then respondent before the Tribunal related that limitation to Mr Clements' assessment. Mr Clements' assessment was that when Mr McGuire left the Army he had no more than a 10% loss of hearing. Counsel submitted that Mr Clements' evidence amounted to an assessment of binaural loss of hearing of approximately 10%. By reference to a tabular calculation (presumably contained within the approved Guide, which appears not to have been put into evidence), this amounted to a permanent impairment of 5%, which, so counsel submitted, triggered the operation of s.24(7).
It is apparent that the presiding Senior Member raised with counsel for the then respondent what the Tribunal should do if it found that the left ear infection arose during the course of Army service but was not satisfied in relation to the noise induced hearing problem in the right ear. In those circumstances, counsel agreed that the matter should be remitted for reconsideration on the basis of that finding. I return to the question whether it is fair to infer that the Tribunal decided the present
respondent's entitlement under s.9 of the 1930 Act.
My conclusion is that the Tribunal did decide the matter of entitlement under the 1930 Act by applying s.9 rather than s.10. I have already described above the sections to which the Tribunal referred. It did not refer to s.10. Furthermore, the manner in which the Tribunal stated the issues (see paragraph 38) and the general tenor of its conclusions in my view confirm that the Tribunal did not apply s.10 of the 1930 Act.
The next question is whether, in taking that course, the Tribunal erred in law? I shall test this by applying what I consider to be the established legal principles. They are as follows:-
Section 24 of the 1988 Act provides for compensation where an injury results in a permanent impairment. Einfeld J observed in Schlenert v. Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139 at p.152 that "the entry visa for this section is permanent impairment so sourced". In Brennan v. Comcare (1994) 50 FCR 555 at p.556 Burchett J said:
"It will be noticed that the compensation is paid (by virtue of subs (1) [of s.24] "in respect of the injury", not in respect of the impairment."
The expressions "permanent impairment" and "injury" as used in s.24 are to be understood in the sense in which they are defined in s.4 of the 1988 Act. This was the approach taken by the Full Court in Brennan, a differently constituted Full Court in Comcare v. Levett (1995) 131 ALR 645 and by Sheppard J in Schlenert (at p.147).
The definition of "injury" in s.4 of the 1988 Act includes a disease suffered by an employee. "Disease" is defined in s.4(1) of the 1988 Act as meaning any ailment suffered by an employee or the aggravation of any such ailment being an ailment or an aggravation that was contributed to in a material degree by the employee's employment. "Ailment" is defined as meaning any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 7(4) of the 1988 Act provides that the date on which an injury, being a disease or an aggravation of a disease, is deemed to have been sustained is the day when the employee first sought medical treatment for the disease or aggravation, or that the disease or aggravation first resulted in the incapacity for work, or impairment of the employee or death of the employee, whichever happens first. In this case, the evidence would deem that date as being at some time during the period of about two months from 2 November 1951 which the respondent spent in Concord Hospital. That was when the respondent first sought medical treatment for what was then his ear infection i.e. a disease and hence an injury under the 1988 Act. The Tribunal did not make a finding in relation to that date. It found that the injury of chronic middle ear infection in the left ear and a patent perforation of the left ear drum arose out of or in the course of the respondent's employment in the Army during the period from 31 July 1951 to 30 July 1957 and "that such injury constitutes a permanent impairment".
The Tribunal's finding that the respondent's medical condition arose out of or in the course of his employment amounted to the application of a more stringent test than required by s.4(1) of the 1988 Act in respect of diseases. As
mentioned above, the test for compensation in relation to a "disease" requires only that it be an ailment or aggravation contributed to in a material degree by the employee's employment. There is no problem in that regard. On the Tribunal's findings, the respondent contracted his left ear infection while undergoing swimming training. I think it is implicit in that finding and the Tribunal's application of a more stringent test that the Tribunal found that the initial ailment (otitis media) was contributed to in a material degree by the respondent's employment in the Army. The application of a more stringent test with a conclusion in favour of the employee in this matter contrasts with the result in cases such as Delahunty v. The Commonwealth (1981) 53 FLR 9 (see in particular at p.14) and Miles v. Northern Territory Fire Services (1989) 17 ALD 185. In each of those cases (involving ss.27 and 29 of the 1971 Act) the Full Court set aside decisions in which the application of the more stringent test had resulted in the employee's claim being rejected.In terms of the application of s.24 of the 1988 Act to the respondent, he can thus be seen, on the Tribunal's findings of fact, to have sustained an injury being an ailment (the middle ear infection in his left ear) contributed to in a material degree by his employment and the patent perforation of his ear drum which resulted in a permanent ("likely to continue indefinitely") "impairment" ("the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function" - i.e. his left ear). I quote the language of s.4(1) of the 1988 Act. Subject to the application of the transitional provisions of Part 10 of the 1988 Act, Comcare is thus liable to pay compensation to the respondent. Comcare's obligation to pay
compensation in respect of the respondent's permanent impairment stems from s.24 of the 1988 Act: Brennan at pp.564, 566; Schlenert at pp.142, 151, 152; Comcare v. Miles (1995) 129 ALR 427 at p.430.That this is so, notwithstanding the fact that the injury was suffered before the commencement of the 1988 Act on 1 December 1988, is made clear by s.124(1).
However, the liability is restricted in at least three relevant ways. First, the amount of compensation, which the respondent is by virtue of s.24, when read with s.124(1), of the 1988 Act entitled to receive, must be the same as the amount of the compensation that would have been payable to him under the 1930 Act, if the 1988 Act had not been enacted - see s.124(4)(b). Secondly, if compensation was not payable in respect of the respondent's injury loss or damage under the 1930 Act then s.124(2) denies the respondent any entitlement to compensation under the 1988 Act. In that regard it must be borne in mind that s.123A provides in effect that a reference in Part X of the 1988 Act to an injury suffered before 1 December 1988 is a reference to (in this case) an injury within the meaning of the 1930 Act as that Act was in force when the injury was suffered. When read with s.7(4) of the 1988 Act that date, as has been discussed above, fell at some time within the two months following 2 November 1951 when the respondent was in Concord Hospital. Thirdly, if the claim was not admissible because of s.16 of the 1930 Act the respondent is not entitled to compensation under the 1988 Act - s.124(10)(b).
At this juncture there is no need to be concerned with the amount of compensation to which the respondent may be entitled. It is quite clear that
compensation of the kind provided for in s.24 of the 1988 Act (lump sums for varying degrees of permanent impairment) was payable under the 1930 Act. Section 12 of the 1930 Act, when read in conjunction with the Third Schedule to that Act, provided for lump sum compensation to be payable in a situation where an employee sustained, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of that schedule when the injury resulted in incapacity other than total and permanent incapacity for work. Section 12(5) provided for the application of percentages where there was partial and permanent loss. The entry of the pathogenic bacteria into the respondent's left ear when engaged in swimming training constituted an injury by accident within the meaning of s.12 of the 1930 Act. The cases are reviewed by Fullagar J in The Commonwealth v. Hornsby (1960) 103 CLR 588 at p.596, but see in particular Brintons Ltd v. Turvey [1905] AC 230 (anthrax), Miller v. J.W. Handley Pty Ltd (1948) 2 WCD (Vict) 134 (pulmonary tuberculosis). Furthermore, the present case falls squarely within what Fullagar J in Hornsby described as the second of the three classes of cases which his Honour considered. The second class of cases comprised cases where there was actual internal physical injury such as the rupture of an aneurism or of an oesophagus. Fullagar J (at p.597) described those as "... cases of injury within the ordinary acceptation of that word...". In the present matter, I refer to the Tribunal's finding of a "patent perforation of the left ear drum". See also Favelle Mort Ltd v. Murray (1976) 133 CLR 580. There are thus authorities at the highest level for what happened to the respondent's left ear to be characterised as the respondent having sustained an injury by accident i.e.
partial loss of hearing, arising out of or in the course of his employment. This means that the s.124(2) hurdle (the bar height of which is set by s.123A) is cleared - see also Schlenert at p.151; Comcare v. Miles at p.431 and Brennan v. Comcare at p.562.A further, and alternative, route to such entitlement is to have regard to the expressions "loss or damage" in s.124(1). As Sheppard J noted in Schlenert (at p.147) loss is only defined in the 1988 Act insofar as it may relate to property and "damage" is not defined. Einfeld J (at p.153) referred to the "damage" of permanent impairment. His Honour noted that s.39 of the 1971 Act [the equivalent of s.12 of the 1930 Act for present purposes] provided for lump sums for various forms of permanent impairment. Accordingly, the terms of s.124(1A) requiring entitlement to compensation under the 1971 Act were, so his Honour held, in respect of the "damage" of permanent impairment, met.
The applicant's complaint is that s.10 of the 1930 Act was the relevant provision upon which the Tribunal should have determined the applicant's liability to pay compensation. I disagree. In my view, the relevant section was s.12 of the 1930 Act when read with the Third Schedule to that Act. Possibly, s.9 should be added as a relevant section, but my preferred view is that s.12 and the Third Schedule of the 1930 Act operate quite effectively on their own.
The applicant relied on s.4(2) of the 1930 Act which provided:
"(2.)In the application of the provisions of this Act to and in relation to an employee to whom section ten of this Act applies, any reference in those provisions to personal injury by accident arising out of or in the
course of an employee's employment by the Commonwealth shall be read as including a reference to a disease due to the nature of the employment in which the first- mentioned employee was engaged by the Commonwealth."
I do not consider that this provision is of any assistance. The respondent was never "... an employee to whom section ten of this Act applies ...". He was neither incapacitated for work by a disease nor did he die.
The expression of the following conclusions in relation to the applicant's first ground of appeal should be taken as being subject to the application of s.16 of the 1930 Act. Although the Tribunal, in this matter, did not refer to s.12 or the Third Schedule of the 1930 Act in reaching its conclusion, in my opinion it did not err in law when it set aside the review decision and remitted the matter to the applicant for reconsideration with a direction that it assess the respondent's entitlement to compensation under the 1988 Act. Nor did it err in law in its direction as to the basis upon which that entitlement would have to be considered i.e. that the applicant suffered the injury of chronic middle ear infection in the left ear and a patent perforation of the left ear drum arising out of or in the course of his employment by the Commonwealth in the Army during the period from 31 July 1951 to 30 July 1957 and that such injury constitutes a permanent impairment. The conclusion reached by the Tribunal, on the facts which it found, was precisely the same as that which would have resulted from the application of the above principles. The only step missing was a reference to s.12 and the Third Schedule of the 1930 Act. Consistent with the observations of the High Court of Australia in Wu Shan Liang, such an omission (if it be an omission) does not, in my opinion, amount to an error of law.
The "no evidence" ground
The material part of the applicant's next ground reads as follows:
"There was no evidence before the Tribunal sufficient for the Tribunal to find that the pain suffered in the respondent's left ear whilst swimming in the course of his employment in 1951 materially contributed to the respondent suffering from chronic left middle ear infection and patent perforation of the left ear drum in 1951."
One reading of paragraph 21 of the Tribunal's reasons would suggest that water entered the respondent's left ear while he was swimming in public baths and that this was not the same occasion as when the respondent suffered his neck injury while swimming in the Georges River in November 1951. The evidence appears at pp.10-11 and pp.29-30 of the transcript of evidence before the Tribunal. The evidence is not entirely clear, but this much emerges on the face of it:
At a time towards the end of the respondent's recruit training at the School of Military Engineering (probably about six weeks after that training commenced) the respondent was given swimming training.
On an unspecified Wednesday the respondent was taken to a public swimming pool which he thought was the Granville Swimming Pool.
While swimming in the Georges River the respondent injured his neck and as a result was hospitalised.
He spent some unspecified time in Moorebank Hospital and then was transferred to Concord Hospital. At that hospital he complained about his left ear and received treatment for the infection in that ear.
It is not clear from this evidence whether the Granville Swimming Pool was located in
the Georges River or whether there were two swimming incidents. It is also not clear whether the lapse of three or four days or "maybe a week" (described by the respondent when giving his evidence to the Tribunal) relates to the lapse of time between the incident in the Georges River and the development of a pain in his left ear, or whether that was the time which elapsed after the respondent was transferred from Moorebank Hospital to Concord Hospital. The respondent was not cross-examined on this aspect of his evidence.
I have had regard to the following further pieces of evidence:
(a)Mr Clements was asked by a member of the Tribunal:
"... what is the relationship of swimming in dirty rivers and middle ear disease? Is there any connection at all? ---"
He replied:
"It has quite often been thought that there is a connection and that if you swim in dirty water, particularly if you dive underneath it and push that water, by the increased pressure up inside your nose and along your eustachian tube to your middle ear, that you would be more likely to have an ear infection than not."
(b)That portion of Mr Clements' report dated 21 May 1993 which reads:
"Whether or not that perforation is associated with a query reported ear infection, query side, (sic) many years earlier in the Army it is not possible for me to say. However, the infection that caused that perforation did destroy most of the hearing in that left ear." (Emphasis added)
In those circumstances, there was, in my view, sufficient evidence for the Tribunal to find that the respondent developed an infection in his left ear in late 1951 when swimming, in the course of his Army service. That evidence also would support a
finding that the employment (being trained in swimming) materially contributed to the chronic left middle ear infection which in turn caused a patent perforation of the left ear drum. This ground is not made out.
Failing to take into account certain evidence
The material portion of this ground of appeal was in these terms:
"... [the Tribunal] failed to take into account evidence relevant to the resolution of issues raised for determination by section 9, in that it failed to draw appropriate inferences open to it from the fact that the medical classification of the Respondent at the time of his discharge in 1957 was "A1"; that the inference to be drawn from the absence of a record of hearing loss in medical board examination records and the medical classification of "A1" was that the Respondent could not then have suffered the injuries as determined by the Tribunal."
The Tribunal did refer to each of these matters (see paragraphs 39-42). It can be seen to have weighed them up against the applicant's sworn oral evidence and to have accepted the latter. This ground boils down to a complaint that the Tribunal gave insufficient weight to the former factors. It does not disclose any error of law.
Time limits
The fourth ground relied upon by the applicant is that the Tribunal, in considering the respondent's delay in notifying the applicant of the relevant injury and in claiming compensation in respect of that injury, tested the matter by reference to s.16(1) of the 1930 Act which, so it was submitted, applied in respect of "personal injury". The applicant submitted that, in this matter where the respondent suffered a "disease" as defined by s.4 of the 1930 Act, the test laid down by s.16(4) of the 1930 Act should have been applied.
In my opinion, it is quite clear that s.16 of the 1930 Act must be referred to for the purposes of ascertaining whether the respondent's claim "... was not admissible because of section 16 ...": see s.124(10)(b). See also the Full Court decision in The Commonwealth v. Connors (1989) 10 AAR 395 [which dealt with the predecessor of s.124(2)(b) of the 1988 Act i.e. s.104(2)(b) of the 1971 Act] and the decision of Kiefel J in Banks v. Comcare Australia (Unreported, Federal Court Judgment No. 382/96, 27 May 1996).
It may be helpful, for the purposes of understanding the applicant's submissions to set out the relevant portions of s.16 of the 1930 Act. They read as follows:
"16. (1.)The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made -
(a)within six months from the occurrence of the accident; or
(b)in case of death - within six months after advice of the death has been received by the claimant:
Provided always that -
(i)the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.
(2.)Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
(3.)The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on
which the employee was so employed, or in any other prescribed manner.
(4.)In the application of this section, in accordance with section ten, and sub-section (2.) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease -
(a)notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1.) of this section if notice of the contracting of the disease was served on the Commissioner -
(i)in the case of a claim arising out of the death of the employee caused by the disease - as soon as practicable after his death; or
(ii)in any other case - as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, as soon as practicable after his death;
(b)a claim for compensation shall be deemed to have been made within the period required by sub-section (1.) of this section if the claim was made -
(i)in the case of a claim arising out of the death of the employee caused by the disease - within six months after advice of the death was received by the claimant; or
(ii)in any other case - within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death;
(c)a notice shall, for the purposes of sub-section (2.) of this section, be deemed to contain the date at which the accident happened it if specifies the date at which, or period during which, the employee contracted the disease; and
(d)a notice shall be deemed to have been duly served in accordance with the last preceding sub-section if -
(i)it was sent in the manner specified in that sub-section to the Permanent Head or Chief Officer of the Department or authority by which the employee was employed in employment to the nature of which the disease was due or, if he was so employed in more than one Department or authority, to the Permanent Head or Chief Officer of the Department or authority by which he was last so employed;
(ii)it was delivered at the head office of the Department or authority by which he was so employed or last so employed, as the case requires; or
(iii)it was served in any other prescribed manner."
The applicant contends that the Tribunal erred in resolving this issue solely by reference to s.16(1) above. Section 16(4), so it was submitted, provided a different test upon which to determine the issue where the respondent suffered a "disease" as defined by s.4 of the 1930 Act. The applicant contends that the Tribunal erred in law "... in that it failed to consider and to apply the correct provision, namely sub-section 16(4)."
In my view there are several answers to this contention. First, s.16(4) governs the application of s.16 "in accordance with section ten ... in relation to a claim in respect of an employee who is suffering from a disease". Section 10 itself only applies where an employee is suffering from a disease and is thereby incapacitated for work or the death of an employee is caused by a disease. This is not such a case. The present claim (if it had been made under the 1930 Act) would, as I have mentioned above, have been made under s.12 when read with the Third Schedule to that Act. The relevant "injury" is loss of hearing, being the fifth item in the Third Schedule. If s.9 has any relevance, the relevant "injury" is the pierced ear drum caused by the entry of bacteria and resulting in the loss of hearing. Alternatively, if s.10 applies then its provisions when read with the definition of "disease" in s.4(1) of the 1930 Act and the provisions of s.4(2) require the word "injury" in s.16(1) to include a disease of the type suffered from by the respondent.
Secondly, as Mr J.R. Wallace, who appeared as counsel for the applicant, quite properly pointed out, s.16(4) was not inserted into the 1930 Act until 1959 (by Act
No. 98 of 1959 assented to on 4 December 1959). As already mentioned, section 123A of the 1988 Act provides that a reference in Part 10 of that Act to an injury suffered before the commencing day is a reference to an injury (relevantly) within the meaning of the 1930 Act in force when the injury was suffered, as that Act was then in force. If the respondent's condition is to be regarded, for the purposes of the 1988 Act, as a disease and hence an injury then s.7(4) of that Act deems the respondent to have sustained it when he first sought medical treatment for his left ear infection in late 1951 at the Concord Hospital. Accordingly s.16(4), in my opinion, has no application to the present matter.
Another reason for not reading s.16(4) as applying in such a manner as to exclude the operation of the proviso to s.16(1), is that s.16(4) simply does some "deeming work". When the facts do not fall within its terms, it has no operation. It is not to be read as restricting other provisions of an exculpatory nature. This legislation is beneficial in its nature. Where two constructions of such a provision are possible, that which favours the employee should be preferred: Wilson v. Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at p.335 (per Fullagar J); Johnston v. The Commonwealth (1982) 150 CLR 331 at pp.342-343 and Bird v. The Commonwealth (1988) 165 CLR 1 at pp.6, 9. Section 16(4) was obviously intended to ameliorate the circumstances of employees who were suffering from a disease, not to prevent them from relying on any exculpatory provisions which might otherwise apply. For all of those reasons I reject the applicant's fourth ground of appeal.
Alternative grounds based on s.16(1)
The applicant put forward some six matters as constituting error of law on the Tribunal's part in applying s.16(1) of the 1930 Act.
Notice of "accident"/notice of "injury"
This ground was stated as:
"The Tribunal misconstrued the provision [s.16(1) of the 1930 Act] as requiring the Respondent to give notice of "injury" to the Commissioner when the provision required the Respondent to give notice of the "accident" in respect of a claim for physical injury."
In my view there is no substance in this ground. The Tribunal (in paragraph 44 of its reasons) referred variously to notification of the relevant injury and notice of the relevant accident.
Failure to consider prejudice to the applicant
This ground was expressed in these terms:
"The Tribunal failed to consider whether the Applicant was prejudiced by the Respondent's failure to notify the Commissioner of the accident said to have caused him physical injury. The Tribunal, in error, found that once it had determined that the failure to give notice and or claim compensation within the prescribed time was due to `mistake, ignorance or other reasonable cause' then there was no statutory requirement to consider prejudice to the Applicant."
The relevant portion of the proviso contained in s.16(1)(i) is expressed in terms that the want of any notice shall not "prevent consideration" of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want or that the want was occasioned by mistake, absence from Australia or other reasonable cause. The applicant submits that even though these are alternative bases for lifting
the restriction expressed in the main operative provisions of s.16(1), the existence of one of the alternatives does not absolve the Commissioner from considering the matter of prejudice.
In my view, this submission misconceives the manner in which s.124(2) and (10) of the 1988 Act operate. In terms of s.124(2), the test is that if compensation was not payable in respect of the injury, loss or damage under the 1930 Act when the injury, loss or damage was suffered then there is no entitlement under the 1988 Act. In this matter, the Tribunal has found that the injury occurred between 31 July 1951 and 30 July 1957. When the impairment occurred, (partial permanent loss of hearing) the respondent became entitled to a lump sum payment under the 1930 Act. The Tribunal is not required to second-guess what the Commissioner might or might not have done when exercising his power under the 1930 Act. In my opinion, it was sufficient that circumstances existed which would not prevent the claim from being admitted. In terms of s.124(10) it could not, on the Tribunal's factual findings (referred to below) be said that the respondent's claim "was not admissible because of s.16 of the 1930 Act". As a matter of construction, I do not read the proviso in s.16(1)(i) as requiring the Commissioner (or the Tribunal for that matter) to have regard to the matter of prejudice to the Commonwealth once the Commissioner (or the Tribunal) finds that the circumstances fall within any of the alternatives. They should, in beneficial legislation of this type, be treated as true alternatives. If prejudice to the Commonwealth were to stand as a bar to admission of the claim, that would require, in my view, an express provision to that effect. What Parliament has provided are alternatives excusing the want of or any defect or inaccuracy in the notice.
Drawing an impermissible inference
The applicant's complaint here is that the Tribunal drew an inference that the respondent had failed to notify the Commissioner or claim compensation because he was mistaken as to the "potential seriousness of the left middle ear infection he developed in late 1951". The applicant says that such an inference was irrelevant to the issue to be determined by the Tribunal i.e. whether the respondent had so failed because of mistake, ignorance or other reasonable cause to give notice or make a claim within time.
In my view this ground is not made out. The Tribunal was obliged to consider whether the want of notice was occasioned by mistake, absence from Australia or other reasonable cause. As part of its findings on the matter of mistake it said (in paragraph 46) that it was:
"... furthermore, prepared to infer that the applicant was mistaken regarding the potential seriousness of the left middle ear infection which he developed in late 1951. His evidence was that on each occasion when he sought treatment for it and was given tablets and ear drops, this treatment seemed to clear up the problem. The likelihood is, therefore, that even if the applicant had been aware of his right to claim compensation under the 1930 Act, he would not have done so in respect of his left middle ear infection because of his apparently mistaken belief that it was not a serious condition."
I consider that drawing that inference was completely appropriate when deciding whether the want of notice was occasioned by mistake.
No probative material on logical grounds
This ground was put forward in the alternative, on the assumption that the inference
referred to immediately above was not supported by probative material on logical grounds. It fails because there was evidence along the lines summarised in the Tribunal's assessment referred to and set out above. The medical evidence shows that the respondent was mistaken in his assessment of the seriousness of his left ear condition and the inference of fact was fairly open to the Tribunal.
Failing to take into account relevant considerations
The following matters were put forward as relevant considerations which the Tribunal had failed to take into account:
.that the respondent was not ignorant or mistaken as to the requirement to give notice to the Commissioner as there was evidence before the Tribunal that the Respondent had provided such notice in respect of other injuries to his body sustained at the relevant time;
.that the respondent had obtained treatment for his chronic left middle ear infection on five occasions; and
.that the respondent had been diagnosed in 1954 as then suffering from left "otitis media" (left middle ear infection).
This ground was put forward as error of law through failure to afford the applicant procedural fairness.
I was not taken to the evidence that the respondent had provided notice in respect of other injuries to his body sustained at the relevant time. Even if there were such evidence, the weight to be given to it was a matter for the Tribunal. The question whether there was evidence that the respondent had provided such notice in respect of other injuries was not a matter which the Tribunal was obliged to take into account. There was certainly no such express requirement in any of the legislation and no such requirement is necessarily to be implied: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24. The submission confuses taking into account relevant considerations with taking into account particular pieces of evidence. In any event, the Tribunal's reasons show that it closely examined the treatment received by the respondent in respect of his left middle ear infection. The Tribunal was, in my opinion, entitled to accept the respondent's evidence that the treatment seemed to clear up the problem.
No evidence that the respondent was mistaken or ignorant as to law or fact concerning the requirement to give notice or his right to claim compensation
The Tribunal's conclusion on this was based squarely on its acceptance of the respondent's evidence to that effect.
The applicant relied upon the decision of the Full Court of this Court in Connors. As mentioned above, that case was concerned with the application of s.104(2)(b) of the 1971 Act which was in relevantly identical terms to s.124(2)(b) of the 1988 Act. The question was whether Mr Connors had served notice of injury and made a claim for compensation within time. The questions of law raised by the appeal were expressly confined in their terms to the application of s.16(1) of that Act. The joint judgment of Northrop and Ryan JJ referred to the matter of whether the condition "severe heart attack" (being the condition involved in that case) was an "injury" or a "disease". Their honours (see p.397) considered that for the purposes of answering the amended questions of law, the condition could be considered either as an injury or a disease.
The fact that the Full Court made no reference to s.16(4) of the 1930 Act tends to support the conclusions which I have drawn above that that subsection has no application in the present matter. In Connors the Full Court held that the word "mistake" included a mistake of law as well as of fact. However, so the Court held, ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, did not constitute by itself a mistake and could not by itself constitute other "reasonable cause" (emphasis added).
The Tribunal considered the reasons for judgment in Connors in some detail. In particular the Tribunal referred to Keely J's observation (at pp.401-403) that there is a distinction between complete ignorance of the right to claim compensation and a mistake of law as to one's right to claim compensation in particular circumstances. A mistake of the latter kind, so the Tribunal noted, may satisfy the proviso to s.16(1) of the 1930 Act. At paragraph 46 of its reasons, the Tribunal referred to and accepted the respondent's evidence as being entirely credible. This included a mistake of law that members of the Army were in a different category from Commonwealth employees generally so far as having the right to claim compensation was concerned. In my view, the Tribunal correctly categorised this as a mistake coupled with ignorance. In the same paragraph the Tribunal found a further mistake concerning the seriousness of the condition of his left ear (see the passage which I have set out above).
In my view, these findings of fact distinguish the present matter from the circumstances in Connors. The Tribunal was entitled to find, as it did, that the failure
to give notice and the failure to claim were both occasioned by mistake. This ground also fails.
A Supplementary Matter
During the course of submissions, Mr Wallace raised what he referred to as "another point". In summary, that point was that the Tribunal had not made a finding on the matter of the time at which the respondent's deafness became "a permanent impairment". The Tribunal had simply remitted the matter for assessment. Mr Wallace said that he did not think an assessment could be made that would be "in any way fair to Mr McGuire". Counsel suggested that, on that basis alone, this matter might be remitted to resolve that question with appropriate medical evidence. I do not think that there is any need to take that course. The Tribunal's decision remits the matter to the applicant for reconsideration in accordance with the Tribunal's direction (set out above) concerning the basis upon which the applicant is to assess the respondent's entitlement to compensation under the 1988 Act. It is true that the Tribunal did not find the date upon which permanent impairment occurred. That is something which the applicant will have to decide, either upon the material before it or upon such further material which the respondent may place before it or which the applicant may choose to obtain. For example, the applicant may choose to obtain a further medical certificate. As was held in Comcare v. Levett (1995) 131 ALR 645 at p.651 the words "permanent impairment" play a "pivotal role" in the operation of s.124(3). The date upon which permanent impairment occurs is the relevant date for assessment in monetary terms of entitlement for such permanent impairment.
Conclusion
For the above reasons, I have come to the conclusion that the Tribunal did not make any errors of law. Accordingly the application will be dismissed.
I certify that this and the preceding forty-four
(44) pages are a true copy of the Reasons for
Judgment of Justice Carr.
Associate:
Date: 7 August 1996
Counsel for the Applicant: Mr J.R.Wallace
Solicitors for the Applicant: Australian Government
Solicitor
The Respondent appeared in person
Date of Hearing: 25 July 1996
Date of Judgment: 7 August 1996
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