Greer and Comcare

[2003] AATA 492

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 492

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/369

GENERAL ADMINISTRATIVE DIVISION		)
Re		IAN GREER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date30 May 2003

PlaceBrisbane

Decision

The Tribunal varies the decisions under review in so far as it was determined that the applicant’s claims for compensation were lodged out of time, and, in substitution therefor, the Tribunal determines that the applicant’s claims for compensation comply with the requirements of section 16 of the Commonwealth Employees’ Compensation Act 1930. 

The Tribunal further directs that this matter be listed for hearing on a date to be fixed following preliminary conferencing by a Conference Registrar.

..................(Sgd).......................

Ms J Cowdroy
  Member

CATCHWORDS

WORKERS’ COMPENSATION – entitlement – whether claims for compensation filed out of time – whether failure to lodge claims or give notice of injury occasioned by mistake, absence from Australia or other reasonable cause – whether claims should be considered

Safety Compensation and Rehabilitation Act 1988  s 124

Commonwealth Employees’ Compensation Act 1930 s 16

Re Siemson and Comcare [1999] AATA 871
Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382
Comcare Australia v McGuire (1996) 68 FCR 329
Banks v Comcare [1996] FCA 382
Murray v Baxter (1914) 18 CLR 622
Telstra Corporation v Roycroft [1997] FCA 774

REASONS FOR DECISION

30 May 2003 Ms J Cowdroy, Member    

Background

1.      This decision relates to a review of a decision of 30 January 2002 which affirmed a determination dated 11 September 2001 by the Department of Veterans’ Affairs to deny liability for the applicant’s post traumatic stress disorder and depression.

2. In the decision, liability was denied on the basis that the requirements of section 16 of the Commonwealth Employees Compensation Act 1930 (“the 1930 Act”) were not met.  The applicant had not lodged a claim for acceptance of those conditions for more than 30 years after cessation of service with the Royal Australian Navy. 

Hearing

3. The matter was heard on 24 January 2003. Mr A J Harding of counsel appeared for the applicant and Mr C Clark of counsel appeared for the respondent. The applicant gave evidence. The T-documents were admitted into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1-21 marked exhibit 1 and documents T22-34 marked exhibit 2).  The following exhibits were also admitted into evidence:

§Exhibit 3            - Statement of Ian Allen Greer of 17 January 2003

§Exhibit 4  - Supplementary Statement of Ian Greer of 21 January 2003

§Exhibit 5  - Affidavit of Paul Ontong dated 15 January 2003

4.      The matter was decided on the basis of the exhibits, the oral evidence of the applicant and the submissions of the parties. 

The Legislative Framework

5.      The Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”), deals with compensation to be paid by the Commonwealth in relation to work related injuries and diseases to certain classes of Commonwealth employees, who sustained injury or disease after the commencement of the 1988 Act, namely 1 December 1988. 

6.      There are transitional provisions in that Act which relate to injuries that occurred prior to that date.  For present purposes, section 124 of the 1988 Act is relevant.  It reads:

“124  Application of Act to pre-existing injuries

(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;

(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered. …”

7.      The 1930 Act, referred to in that provision, is the Commonwealth Employees Compensation Act 1930. As the applicant claims that his psychiatric problems developed during his service between 1968 and 1970, his situation falls to be considered under the 1930 Act. Section 16(1) and (2) of the 1930 Act set out the time period for giving of notice of an injury and for making a claim for the injury. (Note: There was no definition of the term “injury” in the 1930 Act, however in the Commonwealth Employees’ Compensation Act 1948 (No 61 of 1948) a definition of injury was included, and this encompassed “any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury”).

8. Section 16 reads:

“(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 death has been received by the claimant;

Provided always that –

(i)     the want of any defect or inaccuracy in the notice shall not prevent consideration of a 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 a 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.”

9.      The issue to be determined is whether the circumstances of the applicant meet the requirements of those provisions.

Evidence

10.     Mr Greer enlisted in the Royal Australian Navy on 27 July 1968 and was honourably discharged on 28 August 1970.  He provided a number of written statements and gave evidence.  Essentially, he contended that an event when he was involved with the removal of a body from the scene of a motor vehicle accident in his capacity as sick bay attendant caused him to develop psychiatric symptoms.  Later in his service at HMAS Penguin, for about 8 or 9 days, he assisted a young civilian at the hospital who was being treated for a gangrenous leg..  The injured man was subsequently transferred to another hospital and the applicant was later told that the man had died. Mr Greer had behavioural and discipline problems during service including bouts of heavy drinking, going absent without leave, conflict with officers, and a suicide attempt.

11.     The daily medical record of an attendance on 26 May 1970 whilst on HMAS Penguin states that the applicant wished to consult Dr McGeorge, psychiatrist.  He channelled that request through the duty medical officer.  Although he consulted Dr McGeorge the following month, he was not happy with the consultations, commenting that the psychiatrist only asked him two questions: how long had he been in the Navy and what he thought about the service.

12.     He first saw Dr McGeorge in June of 1970.  On 3 August 1970 he was diagnosed with anxiety neurosis and prescribed Valium.  The following day he attempted suicide by overdosing on Valium.  The applicant was “pretty strung out” and he had a sense of alienation as no-one “wanted to know” about him.  The day after overdosing on Valium he was at his “wit’s end”..  He was hospitalised for 20 days and could not remember whether he received psychiatric attention.

13.     On 18 August 1970 he completed a medical statement on discharge (T20-76).  In answer to the question: “Do you suffer from any disabilities at present?”, he wrote:

“Severe headaches at regular intervals
Depression due to Naval service, and subjection to it

Nerves due to responsibility of job held in the Navy”

14.     That document was completed 14 days after he was admitted to hospital and he was taking a lot of medication at the time.  After the overdose, he was informed he was going to be discharged from the Navy.  He recalled speaking to the Surgeon Lieutenant who showed him two sets of documents, and told him that one was a medical discharge and the other an ordinary discharge.  The applicant was told that he would not be receiving a medical discharge, however if he accepted the non-medical discharge he could be out of the Navy that day.

15.     He was further advised that once he was discharged the Navy would bear no responsibility for anything arising out of his Navy service, including any medical complaints. He felt compelled to sign a form, which he was told, was a "Release", which purported to release the Navy from any responsibility.  After his discharge he received treatment from his local medical officer for about two years for “nerves”.  He was placed on Valium and sleeping tablets. 

16.     He did not lodge a claim for compensation until he had spoken to an advocate at the local RSL because he believed he was unable to lodge a claim, based on the conversation years earlier with the Surgeon Lieutenant.  He did not know he was given an honourable discharge. 

17.     In cross-examination, the applicant thought he signed the Release on the same day as the conversation with the Surgeon Lieutenant.  It is not the document which appears at T20-76.  Although he believed when he signed the document that the Navy had caused his medical conditions, he did not lodge a claim until 9 November 2000. 

18.     In his claim he stated that he first noticed the illness and he first received treatment in December 1999.  He acknowledged that the document should have referred to treatment in 1970, but he probably misread it.  He probably assumed the document required information referring to the treatment he was getting at the time and possibly the advocate helped him complete it.

19.     He said that within 8-9 months of his enlistment he made it known that he wanted to get out of the Navy.  He consulted a doctor on one occasion about the possibility of a medical discharge.  He was offered a non-medical discharge and he withdrew his request for a medical discharge when it became obvious that his reasons were insufficient.  His reason for wanting a medical discharge was that he thought he might need medical assistance later, given the condition he was in. 

20.     He perceived by the way that he was being treated that he was not going to be recommended for sea service, although he was not told this officially.  He said that going to sea was the reason he joined the Navy.  Officers told him that they were going to give him a hard time and that this was carried into effect.  He went AWOL on one occasion and after his return he was given all the menial tasks, such as toilet cleaning and message delivery.

21.     From the time he was informed that a discharge was not going to be granted he was very dissatisfied with the way he was treated, and in particular he was dissatisfied with the unspoken “signal” to the effect that he would not be going to sea.  He agreed that in a undated statement, probably prepared about November 2001 (T20-57 to 60), he had not mentioned that he had been threatened and abused by the Surgeon Lieutenant and he agreed that probably he should have elaborated on that aspect.  The information which is provided in that document was written in answer to an indication by the respondent that it would extend the time before review occurred in order to give him the opportunity to produce more evidence.  Prior to 30 January 2002 it had never been asked of him why he had not put a claim in earlier.

22.     He agreed that the record produced by Dr J McGeorge at T13-27 portrays him as a very unhappy man.  He agreed that he had had a motor vehicle accident in July of 1970 and suffered from headaches after the accident.  He agreed with the tenor of Dr McGeorge's report at T13-30, which in essence records that he was disenchanted with naval life.  He said that was because the general attitude of others towards him “wasn’t a very happy one”. 

23.     AtT20-66, Dr McGeorge indicated the following reason for consultation:

“Navy life is not for him.  Cannot see any point in it.  Affecting his job, cannot get interested in it at all now.  Thinking of deserting.”

24.     He did not agree with the comment at T20-34: “does not appear to have a very sound knowledge of his job & expresses no desire to learn”.  He said that he came third in his course and that at that time he liked his job and was looking forward to going to sea.  He wanted to see the world, have mates, earn steady money and have a secure career.  After he completed the course, he expected to get a sea posting, however this did not eventuate and he was never told the reason. 

25.     He did a course as a sick berth attendant, however he disagreed with comment at T16-44 that he ”then put in for discharge”..  He stated that it was not until about nine months into his service that he wanted to get out.  By then it was obvious that those in charge had taken a dislike to him.  He knew by 1970 that he had no future, in that he was not going to sea.

Submissions

26.     Mr Harding submitted that the first stressful episode occurred in late 1969 when the applicant was required to move a body that was badly mutilated.  Up to that point in time, the applicant’s service was proceeding well, he having qualified third in his course.  A conduct record sheet (exhibit 6) records that on 25 October 1968, 10 February 1969 and 17 November 1969, his character was “VG” (very good).

27.     The first time the issue of character arose was in June 1970.  By that stage, the applicant has indicated that he no longer wished to be in the Navy and had sought discharge.  He told a doctor that he wanted to see a psychiatrist as something was wrong and he was considering deserting.  In response to that request, he consulted Dr McGeorge and the interview that took place was most unsatisfactory from the applicant’s point of view.  Instead of being able to explore and discuss his concerns, he was asked only two questions.  No genuine effort was made to diagnose his condition much less provide treatment. 

28.     Although a diagnosis of anxiety neurosis was recorded on 3 August 1970, the only treatment offered was Valium and the following day Mr Greer attempted to suicide.  Following his admission to hospital, he consulted Dr McGeorge again, who made no comment as to diagnosis and only a superficial attempt was made to determine the cause of the applicant’s symptoms. 

29.     Dr McGeorge’s comment as to the applicant’s unsuitability for service reinforced the applicant’s evidence that the Surgeon Lieutenant told him that he would be discharged as unsuitable.  It is conceivable that the applicant left the interview with the belief that the Navy had no future responsibility for him and that he had no right to make a claim for compensation.

30.     Although he was mistaken as to his ability to lodge a claim, he had reasonable cause to believe that he was prohibited from doing so.  Once he was informed that this was not the case, he lodged a claim within six months of acquiring that knowledge.

31. It was submitted that the document headed Medical Statement of an Officer or Rating on Discharge or Demobilisation or Reversion to the Royal Navy (PT20-76) constitutes notice pursuant to section 16(1) of the 1930 Act and that such notice was given within the requisite six months.

32.     The Tribunal was referred to Re Siemson and Comcare [1999] AATA 871 in which discussion ensued as to what constitutes notice of an accident and effective service of that notice. Section 16(2) provides that notice must comply with three requirements: the name and address of the person injured, a statement in ordinary language of the cause of the injury and the date of the incident.

33.     The document at T20-76 was said to comply with those requirements. As to whether it was served, under the provisions of subsection (3), this may be achieved by delivering to the head office of the department or authority or to the officer in charge of the work on which the employee was so employed. The applicant’s outpatient records at HMAS Penguin would have been under the control of the Commanding Officer.  The Commanding Officer would meet the description of “the officer in charge of the work on which (the applicant) was employed”..  It was pointed out that there is no requirement that the applicant carry out service. 

34. If the Tribunal finds that there was want of notice, then the applicant contends that the proviso contained in section 16(1)(ii) is met, in that the failure to make a claim within the specified period was occasioned by mistake or reasonable cause. Whilst recognising that ignorance is insufficient to bring the applicant within section 16(1)(ii), the failure to lodge a claim was not occasioned by ignorance, rather it was fostered by a positive act on the part of the Surgeon Lieutenant. Even if the applicant misunderstood the contents of that conversation, he had reasonable cause for holding such belief, bearing in mind also that the applicant’s mental state was compromised and that he had recently undergone a period of hospitalisation.

35. It was argued that the issue of prejudice to the Commonwealth, as provided for in section 16(1)(i), does not arise if section 16(1)(ii) is met. As subsection (ii) is silent as to prejudice, it draws a distinction between the various requirements which need to be met. Re Willisand Australian Telecommunications Commission (1989) 10 AAR 382, is authority for the proposition that subsections 16(1)(i) and (ii) are alternative provisos.

36.     Mr Clark submitted that the issue in Siemsen’s case related to constructive notice, in that a specific event was nominated as constituting an injury for the purposes of compensation.  That case is distinguishable from the present, as the document at T20-76 provides merely general details and no mention is made of a particular incident/s. 

37.     The evidence of the applicant in respect to his conversation with the Surgeon Lieutenant Surgeon and the accompanying threats is inherently improbable.  Further, it is significant that throughout the applicant’s service records, no mention is made of any contribution to his nervous problems caused by his involvement with handling a body at the roadside.  Even when the applicant presented for psychiatric treatment, no mention is made of the incident which is now said to have upset him.  The most likely scenario as gleaned from the evidence of the applicant and the documentary material is that he was unhappy with the lack of overseas travel, he did not like discipline and he was not motivated.  Although he exhibited significant attitude problems, there is no evidence that they stemmed from any particular event. 

38.     In respect to the issue of prejudice, this was said to be a relevant consideration for the Tribunal.  Referral was made to an affidavit of Paul Ernest Alfred Ontong, Director of the Military Compensation and Rehabilitation Service.  He said that the delay of the applicant in lodging a claim for compensation has prejudiced the respondent, in that the Commonwealth had been unable to investigate the specific circumstances of the injury.  He also referred to familial problems which were more likely to have caused the applicant’s psychiatric problems. 

39.     Further complicating matters is that the service personnel file of the applicant cannot be located.  If the matter proceeded to hearing, the respondent would need to trace back over 30 years of medical history without many of the documents being in existence. 

Consideration

40.     Subsection 16(1) of the 1930 Act requires, firstly, that notice of an accident be given as soon as practicable after it has happened and before the employee has voluntarily left the employment of the Commonwealth, and, secondly, for a claim for compensation to be made within six months from the occurrence of the accident. 

41.     It was said that the applicant gave notice of an injury during service, being the notation of headaches, depression and nerves on his discharge document.  Whilst no cause of headaches was given, the depression was said to be attributable to “Naval service and subjection to it”, and nerves were said to be “due to responsibility of job held in the Navy”.. Whilst that information goes some way to fulfilling the requirements of section 16(2), it lacks the degree of particularity envisaged by the provision. Viewed in the most liberal manner, it could be argued that the applicant had provided a “statement in ordinary language of the cause of the injury”, in that he contended its cause was Navy service.

42. However, the word “cause” implies a degree of specificity, particularly when bearing in mind the intent of section 16(2) is to put the employer on notice that an incident relating to employment has “caused” a particular injury. If the cause of the injury was sufficiently wide to encompass merely a notation that it was due to “navy service”, then a person with 25 years service who was claiming a particular injury would not be required to state when during that service the injury occurred. Clearly, that would largely defeat the purpose of the requirement to give notice.

43. I find that there was no notice given to the naval authorities in compliance with section 16(2). No claim was made until the claim for Rehabilitation and Compensation was lodged in November 2000. Consequently, I find that the giving of notice falls outside the time limits set out in subsection 16(1) of the Act.

44.     I make similar findings in relation to the lodgment of the claim. 

45.     However, that is not the end of the matter, for the provisos set out in subsections 16(1)(i) and (ii) permit consideration of the matter if certain requirements are met.  A claim may still be considered by the Commissioner, if the Commissioner is not prejudiced by the lateness of the notice or if the lateness of the notice or claim was occasioned by mistake, absence from Australia or other reasonable cause.

46.     Counsel for the respondent submitted that the Commonwealth would be prejudiced by the lateness of the claim and in support of that contention, he referred to the evidence of Mr Ontong.  He related the difficulties that would be encountered in investigating the circumstances in which the applicant’s psychiatric problems are said to have emanated, including an absence of records.  Although there is mention of behavioural and emotional problems, there are no specific references to an incident during service which heralded their onset.  Given the long period that has elapsed since the incident said to have caused the injury and the claim, I am reasonably satisfied that the respondent would be prejudiced if the claim was to be admitted for consideration.  In making that finding, I am mindful of the comments of Senior Member Dwyer in Siemsen that “problems due to effluxion of time, inadequate records and poor memory will affect (the applicant) as well as the respondent”.

47.     Mr Harding submitted that even if there was want in the notice, then the applicant’s evidence, if accepted, would bring in subsection 16(1)(ii), in which case subsection (i) need not be considered.  In Re Willis, a case which discussed the meaning of mistake and reasonable cause in the context of section 16 of the 1930 Act, the Tribunal stated:

“Clearly the applicant neither served notice of the accident nor made a claim within six months from the occurrence of the accident(s) and his claim cannot be admitted unless he comes within the provisos to s 16 of the 1930 Act.  Although counsel for the applicant confined his arguments to the grounds of mistake or other reasonable cause and specifically disavowed the ground of prejudice, counsel for the respondent argued that the respondent had been prejudiced by the failure to give notice. … However, as the applicant did not rely on proviso (i) and did not argue that any failure to give notice to the Commissioner did not prejudice the Commonwealth in terms of proviso (i), we do not need to make any finding on the question of prejudice as a basis for applying that proviso.”

48.     The respondent contends that, if a finding of prejudice because of lack of timely notice is made, then that is sufficient to preclude consideration.  However, subsection 16(1)(i) is couched in alternative terms. To my mind, this means that the proviso comes into play if one of two things is satisfied:

(i)if the Commonwealth is not prejudiced; or

(ii)the want, defect or inaccuracy in the notice was occasioned by mistake, absence from Australia or other reasonable cause.

49.     In Comcare Australia v McGuire (1996) 68 FCR 329, one of the grounds of appeal was the failure of the Tribunal to consider prejudice to the applicant. The Court relevantly stated:

“The relevant portion of the proviso contained in s16(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 imposed in the main operative provisions of s16(1), the existence of one of the alternatives does not absolve the Commissioner from considering the matter of prejudice… As a matter of construction, I do not read the proviso in s16(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.”

50.     If I am required to consider both subsections 16(1)(i) and (ii), and I am inclined to this view by the conjunctive “and” between (i) and (ii), then I need consider whether the failure to give notice and to make a claim within the period specified was  occasioned by mistake, absence from Australia or other reasonable cause.

51.     If this is made out, then the applicant brings himself within the provisos which will permit his claim to be admitted. 

52.     The period relevant to the Tribunal’s consideration as to whether a satisfactory explanation was given, as required by the sub-section, is the six months following the accident: according to Kiefel J in Banks vComcare [1996] FCA 382 citing Murray v Baxter(1914) 18 CLR 622.

53.     The concept of mistake and ignorance is discussed by North J in Telstra Corporation v Roycroft [1997] FCA 774. He stated relevantly:

“If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake.  If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.”

54.     In relation to reasonable cause, in Re Willis at 675, the Tribunal held that:

“The test for whether there was reasonable cause in a given situation was one not judged by reference to some hypothetical man in hypothetical circumstances: but rather, one that involved an objective test taking into account the subjective circumstances of the applicant.”

Further in Banks, Kiefel J said:

“The expression ‘reasonable cause’ has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim: see Black v City of South Melbourne (1963) VR34, 38, Quinlivan v Portland Harbour Trust (1963) VR 25, 28.”

55.     Turning first to the defective nature of the applicant’s notice, clearly it was not occasioned by mistake, nor absence from Australia.  In relation to whether the explanation constitutes “reasonable cause”, I considered it highly significant that at the time the applicant completed the medical statement on 18 August 1970, his ability to think clearly and rationally was severely compromised.  This contention is not entirely reliant on the applicant’s assertion as there is evidence of a period of hospitalisation following what was described as a “very determined attempt at suicide” (T13-27).  He was admitted on 4 August 1970 and was discharged on 28 August 1970.  If the medical records are accurate, he was discharged from hospital on the day he was discharged from the Navy.  According to the applicant, following discharge from the Navy, he suffered from low self-esteem and nervousness and his mother convinced him to seek medical treatment for those symptoms.  I find that the combination of that evidence constitutes “reasonable cause”. 

56.     In relation to the explanation for the delay in lodging a claim, this is said to be attributable to a conversation he had at about the time of his discharge with the Lieutenant Surgeon.  Although the Tribunal was asked to reject the applicant’s version of events on this aspect, I decline to do so.  His evidence was consistent with a culture that prevailed in the services at that time that non-conformity was not to be tolerated.  This is borne out, not only by the applicant’s evidence, which I accept, but is corroborated to some extent by the comments in the medical records at the time, which attest to an attitude that applicant was considered to be of little value to the Navy. 

57.     The scenario painted by the applicant is not incredulous, given that he had been treated with derision by other service personnel for some time.  I am satisfied that a conversation occurred in which the applicant was told in no uncertain terms that he was to be discharged from the Navy and that papers were put in front of him with a view to expediting this process, which he signed.  Whilst the applicant referred to a “Release”, the document to which he was referring was not in evidence.  Despite that, I find that the conversation encompassed the topic that the Navy was, to use the vernacular, “wiping its hands of him” and was absolved from further responsibility for him, including any medical problems.  Following such conversation, it was reasonable for the applicant to have understood that he could not make a claim for compensation.  The evidence is that this state of knowledge existed up until the time he was advised to the contrary.

58.     Having regard to this, it is apparent that the applicant was not ignorant of the existence, in principle, of his right to make a claim for compensation for any injury he sustained during his service.  He indicated that was the reason he included a list of his problems when completing the discharge form, as he thought he might need “help” later on.  However, the reason he did not make a claim falls squarely on the fact that he had a mistaken belief, fostered deliberately by someone in authority, that he had no status to bring a claim.  In addition to satisfying the requirements for mistake, I find also that it was reasonable for a person in the situation in which the applicant found himself not to make a claim under the 1930 Act within the requisite time frame. 

59. The Tribunal consequently varies the decisions under review and substitutes its decision that the applicant is not disentitled by reason of section 16 of the 1930 Act to claim for compensation.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  24 January 2003
Date of Decision  30 May 2003
Counsel for the Applicant         Mr A Harding
Solicitor for the Applicant          Gilshenan & Luton
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Phillips Fox