GREGORY KATTERNS and COMCARE
[2003] AATA 422
•9 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] 422
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1025
GENERAL ADMINISTRATIVE DIVISION ) Re GREGORY KATTERNS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date9 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................(Sgd)....................
R G Kenny
Member
CATCHWORDS
WORKER’S COMPENSATION – injury occurring travelling from military function –– whether notice of injury given as soon as practicable – whether notice deemed to have been given – whether prejudice to respondent - whether any failure to give notice due to ignorance, mistake or other reasonable cause – whether injury occurred in the course of employment – whether travelling to place of normal residence – whether selected route substantially increased the risk of sustaining an injury when compared with a more direct route
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 6, 53
Comcare v Luck (1999) 29 AAR 403
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Re Harbutt and Department of Defence (1998) 51 ALD 159
Commonwealth v Connors (1989) 86 ALR 247
Banks v Comcare [1996] FCA 382
Vetter v Lake Macquarie City Council (2001) 202 CLR 439REASONS FOR DECISION
9 May 2003 Mr R G Kenny, Member Background
1. On 15 January 2001, Gregory Katterns (the applicant) completed a “Claim for Rehabilitation and Compensation” for injuries which he described as “head, neck, (whiplash) and lower back injury from vehicle accident”.. He stated in that form that the injuries occurred on 18 August 1990 at 2300 hours when he was involved in a vehicle accident which happened after he attended a mess function associated with his service as a member of the Australian Army Reserve.
2. On 5 February 2001, a delegate with the Military Compensation and Rehabilitation Service determined, in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act), that the claim should be disallowed and, on 28 February 2001, another delegate affirmed the initial decision. On 16 March 2001, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975.
Appearances
3. The applicant was represented by Mr E Muir, solicitor. Mr C Clark of counsel appeared on behalf of Comcare (the respondent).
4. The following material was tendered and taken into evidence:
§exhibit 1: the T documents (T1-T10);
§exhibit 2: an affidavit, dated 24 May 2002, by the applicant;
§exhibit 3: a letter, received by the Tribunal on 27 June 2001, from Tony and Lesley Twigg;
§exhibit 4: a letter, dated 5 May 2001, from Hans Weiss;
§exhibit 5: a sickness benefit medical certificate dated 23 August 1990;
§exhibit 6: a map marking the route of the applicant;
§exhibit 7: a statutory declaration, dated 19 March 2003, by the applicant;
§exhibit 8: a statement, dated 29 September 2001, by the applicant with attachments;
§exhibit 9: RACQ road map of the route from Brisbane city to Ferny Hills.
Issues and Legislation
5. Both Mr Clark and Mr Muir conceded that the first issue for determination in this matter is whether or not the notice requirements as set out in section 53 of the Act have been complied with. The provision reads:
“(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death.
(2) This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death.
(3)Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.”
6. If notice has been given under section 53 of the Act, the next issue to determine is whether the applicant suffered an injury, as defined in section 4 of the Act, and whether any such injury arose out of the course of his employment in accordance with the terms of section 6 of the Act. The provisions read:
“Section 4
…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 rose 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.
…
Section 6
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment; or
(b) while the employee:
(i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;
(ii) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;
(iii) was travelling between the place where he or she normally resides and another place, being a place where he or she resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment;
(iv) was travelling between one of his or her places of work and another of his or her places of work;
(v) was travelling between his or her place of work or place of residence and a place of education for the purpose of attending that place in accordance with:
(A) a condition of his or her employment by the Commonwealth or a licensed corporation; or
(B) a request or direction of the Commonwealth or a licensed corporation; or for the purpose of attending that place with the approval of the Commonwealth or the licensed corporation, as the case may be, unless he or she was so travelling while on leave without pay;
(vi) was at a place of education, except while on leave without pay, for a purpose referred to in subparagraph (v);
(vii)was travelling between his or her place of work or place of residence and any other place for the purpose of:
(A) obtaining a medical certificate for the purposes of this Act; (B) receiving medical treatment for an injury; …
(C) undergoing a rehabilitation program provided under this Act; (D) receiving a payment of compensation under this Act; …
(E) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(F) receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensed corporation, is available, or reasonably expected by the employee to be available, for collection at that place; or …
(2) Subparagraph (1)(b)(ii), (iii), (iv), (v) or (vii) does not apply where the travel:
(a) was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route; or
(b) was interrupted in a way that substantially increased the risk of sustaining an injury.
(3) Subsection (1) does not apply where an employee sustains an injury:
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.”
7. Also of relevance is the definition of a place of residence in section 4 of the Act which reads:
“place of residence, in relation to an employee means:
(a) the place where the employee normally resides;
(b) a place, other than the place referred to in paragraph (a), where the employee resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment; or
(c) any other place where the employee stays, or intends to stay, overnight, a journey to which from the employee's place of work does not substantially increase the risk of sustaining an injury when compared with the journey from his or her place of work to the place referred to in paragraph (a).”
Applicant’s Evidence
8. The applicant said that he was born on 11 February 1954, that he served in the Australian Army Reserve from June 1984 until 11 February 2001 and that, on 18 August 1990, he attended a mess function at the Crest Hotel in Brisbane with his then wife who was also in the Army Reserve. He said that he was separated from her at the time and had been for a few months but that she agreed to attend the function. He said that he is now divorced from her. He said that they attended in her car and that, after the function at about 10.30pm, she drove the car with him as a passenger away from the Crest Hotel towards the home of his parents at 31 Kylie Avenue, Ferny Hills and did this by driving along Samford Road, turning into Dawson Parade and then into Patrick Street, where the vehicle was involved in an accident at about 11pm when it ran off the road and overturned. He said that he received various head injuries and was rendered unconscious until the ambulance arrived, was taken to Royal Brisbane Hospital where he was a patient for a few days and then went to his parents’ house for about a week to recuperate.
9. The applicant said that he was unable to recall when he advised anyone from the army of the accident and said that this may have been done when he was in hospital or when he was at Kylie Avenue afterwards. He said that he could recall that his platoon sergeant contacted him and that he had an interview with an officer on 8 or 9 September 1990 about it for the purposes of completing an incident report. Initially, in his evidence in chief, he said that he thought that the officer was Major Scanlan and, later, said that he was sure that it was Major Scanlan and that Major Scanlan had advised him that, because of the circumstances of the accident, he had no right to make a claim. In cross examination, the applicant agreed that, in his statutory declaration, dated 19 March 2003 (exhibit 7), he said it was Major Scanlan as far as he could recall. He told Mr Clark in cross examination that he was sure that it was Major Scanlan but agreed that he had not named Major Scanlan in documentation until the statutory declaration was made and that this was the day prior to the hearing. He said that he had not attempted to learn the present whereabouts of Major Scanlan and said that this had been because he had only thought about it in the 24 hours before the hearing. He agreed that Major Scanlan’s name appeared on the document which set out the program for the function on the night of the accident and that he had had that in his possession since that time (see T4/21).
10. In his evidence in chief, the applicant said that it was because of what Major Scanlan said to him that he did not make a claim until years later. In cross examination, he agreed that he had not included in his statutory declaration any reference to incorrect advice being given to him and explained this by saying that he did not think that this was an issue. He then said that Major Scanlan had “possibly” put him on the wrong track. He also said that he had “inferred” from what Major Scanlan said to him that he would not be able to make a claim and that Major Scanlan had “said as much” to him. He said that Major Scanlan wanted him to agree not to make a claim against the army. The applicant also said that he had made attempts to obtain a copy of the incident report in a visit to Victoria Barracks but had been unsuccessful. When asked by Mr Clark about his reason for not making a claim at the time of the injury, the applicant said that he did not want to “make waves” or to “rock the boat” and explained this by saying that he was concerned about both his military career and his career as a professional teacher and did not want to take any steps that would jeopardise these. He said that he had been of the belief that, if he made a claim, this might happen.
11. The applicant said that he has not made any other claims in relation to the accident, that he scaled down his duties in the army as a result of the injuries and that he was focussed on his civilian employment as a teacher. He denied any other accidents except for a problem with his Achilles heel for which he underwent physiotherapy and said that the physiotherapist had suggested to him that he had an underlying problem with his back.
12. The applicant said that he had moved his residence from just south of Brisbane to Paradise Point on the Gold Coast about a week before the accident and that he shared his new residence with Hans Weiss. He said that he had not moved all of his things there at the time of the accident and that some of these were at his parents’ house at Ferny Hills. On the night of the accident, he had left his car at their house along with his clothing. In his evidence in chief, he said that he definitely intended to stay at his parents’ house and travel to Paradise Point on the following day, which was a Sunday. In cross examination, he first told Mr Clark that he was definitely going to stay with his parents. He said that their home was as much a home to him as was Paradise Point. He was referred to a statement he completed on 6 February 2001 (T9/47-48) where he said he was en route to his then home residence at Paradise Point by way of his parents’ house to retrieve his motor vehicle and was then going to proceed to Paradise Point at that time. In his evidence, he said that he had completed this statement quickly on receiving the letter rejecting his claim (see T8/45) and had faxed it the following day. He said that he prepared and sent it because he “thought that they had misunderstood” his claim. He said that regard should be had to the more detailed statement he made (exhibit 8) which had been prepared over a long period and after careful consideration and reflection.
13. The applicant was also referred by Mr Clark to his affidavit (exhibit 2) completed in May 2002, where he said that it was his intention to either sleep at his parents’ house or drive to Paradise Point, depending on how he felt. He also agreed that, in his claim form, in answer to the question “Where were you travelling to?”, he had responded that he was going “Home – 31 Kylie Ave Ferny Hills” (see T3/20). He agreed that there were three different versions of what his intention had been on the night of the accident and he said that he would “sit with” the version that he would have either slept at his parents’ house or driven to Paradise Point, depending on how he felt at the time.
14. The applicant said that much of his service had been at Wacol and at Enoggera and that, as there were no proper quarters at Enoggera, his parents’ home was very convenient for him to store things and to stay over from time to time. He would stay there on one or two weekends each month, sometimes for two or three nights and, because they were elderly, he would assist them with odd-jobs around the house. The applicant agreed that he cared about his parents and that there was strong motivation to see his parents quite apart from anything to do with the function that he attended. He said that he might have taken the opportunity to do some chores around the house for them that weekend if he had stayed there overnight. He agreed that he was not rostered for any specific duty on the Sunday after the accident but added that, as a Reservist, he was always on call and that he may have had to attend to some administrative matters. However, he also agreed that this reference by him constituted “basic speculation”.
15. The applicant said that there were two potential routes that he and his wife could have taken to Ferny Hills but that the one that they took was the more convenient and direct. He said that, while each of these routes involved negotiation of a railway crossing, the route they took was controlled by lights and a boom gate whereas the other did not have that protection and was also longer. The applicant agreed that the distance of the route that he followed on the night of the accident from the Crest Hotel to Kylie Avenue was about sixteen kilometres and that the journey involved traversing many intersections and negotiating many sets of traffic lights as opposed to a direct run down what was, in 1990, the Gold Coast Highway if he had gone immediately from the Crest Hotel to Paradise Point.
16. The applicant said that there were no facilities on the army base for him to change into his dress uniform before the function and had dropped this off at his parents’ place on the Friday before the accident. He said that it was convenient for him to store some of his army gear there. He changed at his parent’s house and met his wife there before travelling to the function in the city. He agreed with Mr Clark that he could have driven to and parked his car in the city and have left his equipment in the car rather than at his parents’ place. However, he also said that he did not think that parking facilities were readily available in the city or that he would have been able to conveniently change into his dress uniform there.
17. The applicant said the he had separated from his wife several months before the accident and said that he was unsure of the date of divorce from her but thought it might have been April 1991.. He said that he had maintained contact with her until the divorce but that she had then gone to live in Melbourne for about twelve months and he did not have her contact details there. He said that she then stayed with him briefly in 1992 but had never discussed the accident with him and he said that he was absolutely certain that she had not advised him that she had made a claim in relation to the accident. He said that she had also told him that she would never admit liability for the cause of the accident. He said that he now accepted that she had made a claim in 1990 but that he did not know of that at the time or until recently. He agreed that the comments made by his wife to police about his role in the cause of the accident did not place him in a very good light in that those comments attributed blame for the accident to him. He also agreed that he did not make his claim for compensation until towards the end of his army career.
18. The applicant said that, in relation to the injuries that he had claimed for, he had not seen any medical practitioners associated with the army. He said that he had experienced pain since the accident and had attended his own doctor from time to time and that he had also seen a specialist in respect of a problem that he had with his Achilles tendon. He said that he had asked that doctor to “look into” his back problem. Initially, when asked if he had seen any other specialists in relation to his claimed injuries, he said that he had not but, later in his evidence, he said that he could recall seeing Dr M Scott-Young about his back at some stage.
Applicant’s Submission
19. Mr Muir submitted that the notice requirement in sub-section 53(1) of the Act had been met by the applicant in that notice was given to the respondent at the time of the interview that he had with Major Scanlan in September 1990 and that the notice was constituted by the incident report completed at the time. In the alternative, he submitted that the claim form lodged on 15 January 2001 should be deemed, under sub-section 53(3) of the Act, to be a notice because to do so would not prejudice the respondent, because the applicant was mistaken about his right to make a claim due to the advice given to him by Major Scanlan and because the advice of Major Scanlan also gave reasonable cause for not giving notice at an earlier time.
20. In relation to the journey during which the applicant was injured, Mr Muir conceded that the applicant gave three versions of his intentions about his destination on the night. He submitted that the reason for this uncertainty was the applicant’s inability to now recall what his intention was at the time. He referred to the version given in his affidavit (exhibit 2) as the most likely. This was that he was driving to his parents’ place which was used by him frequently as a stopover point and as a place to store some of his army equipment and that he would have decided on arrival there whether or not to continue his journey to Paradise Point.
Respondent’s Submission
21. Mr Clark submitted that the first notice of the applicant’s accident or injury to the respondent was the claim form lodged on 15 January 2001 and that this was outside of the time-frame contemplated by sub-section 53(1) of the Act. He submitted that the applicant’s evidence should not be accepted in relation to the completing of an incident report by Major Scanlan because of the inconsistencies in that evidence.
22. He also submitted that the passage of time as between the date of the accident and the lodgement of the claim meant that the respondent would inevitably be prejudiced by treating the claim as a sufficient notice under sub-section 53(3) of the Act. He submitted that this was because the applicant had lost the opportunity to have contemporaneous medical examinations done and that this was compounded by the fact that the applicant had not seen a specialist for some years after the accident and had not seen a doctor associated with the army at all. He referred to the difficulties that witnesses have in recalling matters that occurred more than ten years earlier and to the possibility of other events occurring in the applicant’s life which may have had an impact on his initial injuries.
23. In relation to the applicant being mistaken or ignorant about his right to make a claim, Mr Clark submitted that regard should not be had to the alleged conversation with Major Scanlan. Further, he submitted that there were other factors acting on the mind of the applicant in the period after the accident which were the real reasons for a claim not being made then. He submitted that the applicant made a conscious decision not to claim because he didn’t want to “make waves” or “rock the boat” because he was fearful that the making of a claim may interfere in some way with his military or civilian career.
24. In relation to the journey during which the applicant was injured, Mr Clark conceded that the applicant was travelling from a place of work but submitted that, in determining whether he was travelling to his residence at Paradise Point on the Gold Coast, it was necessary to determine what the applicant’s intention was at the time. He submitted that the applicant gave three versions of what that intention was. He submitted that the applicant was travelling to his parents’ place but that this was not his place of residence even on a temporary basis because of the irregularity and infrequency of this stays there. Further, he submitted that, when he stayed there, he did so for reasons unassociated with work. This was because he cared for his parents and did work for them around the house. In the event that the applicant’s intention was to retrieve his vehicle and continue his journey to the Gold Coast, Mr Clark submitted that to do so would involve a substantial increase in the risk of sustaining an injury compared with travelling directly to the Gold Coast.
Consideration
25. The Act makes provision for compensation to be paid by the Commonwealth in respect of work-related injuries or diseases to various categories of Commonwealth employees, including those serving in the Australian Army.
26. In accordance with paragraph 53(1)(a) of the Act, written notice of the applicant’s injury was to have been given by the applicant to the respondent "as soon as practicable" after he became aware of that injury. In the claim form lodged on 15 January 2001, he gave the date of the accident as the time when he became aware of the claimed injuries. This was 18 August 1990. He gave evidence that he completed an incident report in conjunction with Major Scanlan and relied on that as being the notice for the purposes of paragraph 53(1)(a) of the Act. The incident report was not produced in evidence and the applicant has not been able to locate any copies of it in his records.
27. If the incident report had been prepared in the manner described by the applicant, this would constitute notice and it would have been given to the respondent within the timeframe required by paragraph 53(1)(a) of the Act. However, I do not accept the applicant’s evidence in relation to Major Scanlan. I am satisfied that the applicant was an unreliable witness who gave differing accounts of various aspects of his evidence including that relating to his dealings with Major Scanlan. Initially, in his evidence, he was uncertain whether it was Major Scanlan and that was also the case with his reference to Major Scanlan in his statutory declaration, dated 19 March 2003 (exhibit 7), where he wrote that he:
“after incurring injuries in a motor vehicle accident, that did occur on 18 August 1990 at approximately 2300 h, while travelling in military uniform as a passenger, from a designated Australian Army OCTU 1 TRG GP military mess function to my residence – did then at a later date on or around 8/9 September ’90 attend training at 1st TRG GP, where and at which time I was attended and briefed by a senior officer, a Major Scanlan (as I recall) – on completing and signing an incident report of the above mentioned motor vehicle accident.”
28. Later in his evidence, the applicant said that he was sure that it was Major Scanlan. He also admitted in his evidence that he had not thought to use the name of Major Scanlan until the day before the hearing. This was despite the long period that has elapsed since the accident and despite the completion by the applicant of the detailed statement in September 2001 (exhibit 8) which he said took him some months to complete and where the name of Major Scanlan was not included. The absence of clear recollection of and reference to Major Scanlan is particularly significant because of the importance of the role attributed by the applicant to Major Scanlan for his not making a claim for many years. In the circumstances, I am not satisfied that the applicant completed an incident report in September 1990.
29. In view of my decision, below, in relation to the giving of notice either actually or in a deemed manner, it is not necessary for me to consider the issue of whether the applicant’s circumstances are embraced by the terms of section 6 of the Act. Nevertheless, I make the following observations about the applicant’s evidence in that regard because, in assessing the overall credit-worthiness of the applicant in relation to the incident report and Major Scanlan, I have also taken into account the unreliable manner in which he gave evidence of his intention on leaving the function at the Crest Hotel. He gave differing versions of that intention.
30. In his evidence in chief, the applicant said that he definitely intended to stay at his parents’ house and travel to Paradise Point on the following day. In cross examination, he first told Mr Clark that he was definitely going to stay with his parents. He said in the statement he completed on 6 February 2001 (T9/47-48) that he was en route to his then home residence at Paradise Point by way of his parents’ house to retrieve his motor vehicle and was then going to proceed to Paradise Point at that time. By way of explanation for that inconsistency, he said that he had completed this statement quickly on receiving the letter rejecting his claim (see T8/45) and had faxed it the following day and that regard should be had to the more considered statements he has made since, for example, the affidavit (exhibit 2) which was completed in May 2002. There, he said that it was his intention to either sleep at his parents’ house or drive to Paradise Point, depending on how he felt.
31. I do not accept the applicant’s explanation. In his evidence, he said that he prepared and sent the statement in February because he “thought that they had misunderstood” his claim. In the claim form, he stated that he was travelling “from a designated unit mess function” and that he was travelling to “home – 31 Kylie Ave Ferny Hills”. The claim led to a rejection on the basis that the journey from the function to the Ferny Hills address was not covered under the Act. This means that the February statement was designed by the applicant specifically to make clear what his position was. In terms which are unequivocal, the applicant, in providing that clarification, wrote:
“…I was a passenger being driven home – en route to my vehicle parked at 31 Kylie Avenue Ferny Hills to pick up same and then proceed myself directly to my new place of residence at 21 Rouen Ave Paradise Point, Gold Coast.”
Elsewhere, in the same statement, he wrote:
“Explanation as to why I was travelling as a passenger in a motor vehicle driven by my then wife, Nindra Katterns, on the night of 19 August 1990 – heading home from a designated army military mess function – en route to my then home residence of 21 Rouen Ave Paradise Point by way of 31 Kylie Ave Ferny Hills (my then parents’ address) to retrieve my motor vehicle – to then proceed to 21 Rouen Ave Paradise Point at that time.”
32. When it was put to him that there were three different versions of what his intention had been on the night of the accident, he said that he would “sit with” the version that he would have either slept at his parents’ house or driven to Paradise Point, depending on how he felt at the time. That is not consistent with the version he included in his statement in February which was prepared immediately on receipt of the letter from the respondent, dated 5 February 2001, and which was prepared for the purpose of ensuring that his claim was properly understood. It is also not consistent with the terms of the statement that he made in September 2001 (exhibit 8) which he said had been prepared over a long period and after careful consideration and reflection. There, he said, speaking of both his then wife and himself, said:
“Naturally I had hoped we would stay at my parents’ home as a temporary place of residence overnight … it being late at night and both of us … at least I was … being tired! That way, we could have rested, had breakfast the next morning (I know my mum and dad would have enjoyed our company) and then I could have driven my vehicle home to my new residence at Paradise Point the next day.”
33. In this matter, the applicant has given whatever version of the facts that he perceived would advance his purposes at a given time. Clearly, he was travelling to his parents’ place and I am satisfied that it was his intention to collect his vehicle and to continue his journey to his residence at Paradise Point. That was the version he gave in February when his claim was first rejected and that version was given specifically to clarify the circumstances in which the accident happened. I do not accept the submission of Mr Muir that the applicant gave three versions of his intentions about his destination on the night because he was unable to now recall what his intention was at the time. The version he gave in the letter of 5 February was specific in its meaning and also in its purpose and reflected no degree of uncertainty in the applicant’s mind. I am also satisfied that the applicant had no military commitments on the following day and I consider his reference to being on duty because of his obligation to be available 24 hours per day to be entirely spurious. That absence of obligation to perform any military duties is consistent with his intention to return to Paradise Point. This is dealt with further below.
34. I am satisfied that the applicant did not give notice of his injuries to the respondent prior to the lodgement of his claim on 15 January 2002. It is not disputed that the claim lodged by the applicant can also constitute a notice: see Comcare v Luck (1999) 29 AAR 403 at 417. However, that document was lodged in 2001 and this was not "as soon as practicable" after the applicant became aware of his injury eleven years earlier. This means that the terms of paragraph 53(1)(a) of the Act are not met. However, subsection 53(3) of the Act provides that, where the conditions specified in paragraphs (a), (b) and (c) of that provision are satisfied, the notice shall be taken to have been given under the section. It is not disputed that the conditions specified in paragraphs 53(3)(a) and (b) are met. Under paragraph 53(3)(c), the issues which arise in this case are whether the respondent would be prejudiced if the notice were treated as sufficient notice and, if so, whether the failure to comply with the notice requirements resulted from ignorance, from a mistake or from any other reasonable cause.
35. In Re Tierney and Reserve Bank of Australia(1988) 15 ALD 534 at 535, the purpose of the notice requirement in sub-section 53(1) of the Act was referred to in the following way:
"Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act."
36. As I understand Mr Clark’s submission, I was invited to infer that there would be prejudice because of the lapse of time because no specific evidence was called to establish or point to actual prejudice to the respondent. For example, it has not been shown that any attempts have been made to contact relevant witnesses, either medically qualified or otherwise, let alone unsuccessful attempts to do so. However, that is not surprising in this case. The fact of the accident is not in dispute and a Traffic Accident Report, completed on 20 October 1980, was in evidence (T5/24). The applicant did not receive medical treatment from army personnel. The injuries claimed by him are mainly of an orthopaedic nature and the applicant has stated that he did not consult with an orthopaedic specialist until about two years ago. In exhibit 8, he stated:
“More recently during the course of the year 2001, my back did “go” suddenly on me for no apparent reason during the periods 17-7-01 up to and including 16-9-01 when I have been totally incapacitated for work due to neck and lower back pains- with numerous visits to my doctors, hospitals and orthopaedic specialists in this time frame.”
37. The applicant continued by stating that he had an appointment with orthopaedic specialist Dr M Scott-Young in November 2001. In his affidavit (exhibit 2), he said that, in November 1990, he had seen a specialist, Dr Dean Shurte, “for suspected spinal and neck injury” and that he could “not recall the outcome of that consultation”. His oral evidence did not confirm the fact of that consultation as he denied seeing any specialist apart from Dr Scott-Young. In the documents attached to exhibit 8 are letters from Dr Bruce Rigg, dated 9 August 2001, and Dr P Mercer, dated 16 August 2001. Dr Rigg carried out facial surgery on the applicant after the accident but made no reference to any orthopaedic matters in his letter. Dr Mercer was the applicant’s treating doctor for a period of eighteen months which ended about four months before the applicant’s accident. In the event that the applicant had made his claim at the time that he nominated as first becoming aware of his injuries, the respondent would have been in a position to have had him medically examined by appropriately qualified specialists and to thereby obtain contemporaneous evidence of the state of his injuries. In that situation, I am satisfied that the respondent would be prejudiced if the claim was treated as a sufficient notice for the purposes of section 53 of the Act. In making that finding, I also consider that the unsatisfactory and unreliable state of the applicant’s evidence is also of significance because any current examination by medical practitioners would need to depend to an extent on an account given by him to them.
38. In respect of notice, I have also considered whether the failure to comply with the notice requirements resulted from ignorance, from a mistake or from any other reasonable cause.
39. As set out above, I have rejected the evidence of the applicant in relation to Major Scanlan and, therefore, am satisfied that he was not advised that he had no right to make a claim. Also, the applicant gave another reason for not making a claim. This was that he did not want to “make waves” or to “rock the boat” and explained this by saying that he was concerned about both his military career and his career as a professional teacher and that he did not want to take any steps that would jeopardise these. He said that he believed that, if he made a claim, this might happen. It is difficult to see how the making of a claim could achieve that feared outcome except that the statement made by the applicant’s then wife, which is included in the Traffic Accident Report, was in terms that cast fault for causing the accident on him (see T5/25). The applicant gave a different account to the police but agreed in his evidence that the statement of his then wife “did not paint him in a good light”. Given the applicant’s evidence that he did not claim for the reasons given, it can not be said that he was mistaken about or ignorant of his capacity to do so. I am satisfied that it was a choice by him for the reasons given and not due to mistake or ignorance.
40. As to any other reasonable cause for the applicant’s delay in giving notice of his injuries, there must be a nexus between the “reasonable cause” and the delay: see Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at 673, 674 and Re Harbutt and Department of Defence (1998) 51 ALD 159 at 163. Also, there must be evidence of something more than mere ignorance before reasonable cause will arise: see Commonwealth v Connors (1989) 86 ALR 247 at 252 and Re Harbutt (above) at 165. In Re Willis (above) 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. In Banks v Comcare [1996] FCA 382 the decision to make no claim was made consciously because the claimant believed that he was able to manage and Kiefel J said that it was difficult to accept that the proviso was intended to encompass a position where a person might later change his mind about making a claim because it then suited him or her to do so. 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: see Black v City of Melbourne (1963) VR 34 at 38; Portland Harbour Trust (1963) VR 25 at 28.”
41. In this case, I am satisfied that the reasons given by the applicant for not giving notice of his injuries as soon as practicable after becoming aware of his injuries do not constitute reasonable cause.
42. It follows that I am satisfied that the notice requirements of section 53 of the Act have not been met and, therefore, that the applicant’s claim is not to be considered. This means that it is not necessary for me to consider whether the applicant suffered an injury, as defined in section 4 of the Act, or whether any such injury arose out of the course of his employment in accordance with the terms of section 6 of the Act. Nevertheless, having made reference, above, to the applicant’s intention in relation to his destination on the night of the accident, I make the following observations on the issue of the applicant’s journey.
43. Pursuant to subparagraph 6(1)(b)(ii) of the Act, the injuries of the applicant will be treated as having arisen out of, or in the course of, his employment if they were sustained while he was travelling between his place of work and place of residence, other than during an ordinary recess in that employment. However, pursuant to sub-section 6(2) of the Act, that provision will not apply where the travel was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route or was interrupted in a way that substantially increased the risk of sustaining an injury.
44. The respondent has conceded and I am satisfied that the applicant was travelling from his place of work when he was injured. The definition of the term “place of residence” is provided in section 4 of the Act and is set out above (see paragraph 7). I am satisfied that the applicant was not residing temporarily at his parents’ place at Ferny Hills on the night of the accident and, as indicated above (see paragraph 33), that he was not intending to stay overnight at their place. The applicant normally resided at 21 Rouen Avenue, Paradise Point at that time and I am satisfied that this was his place of residence for the purposes of the definition of “place of residence” in section 4 of the Act.
45. I am satisfied that sub-paragraph 6(1)(b)(ii) of the Act is potentially applicable to the applicant. However, it applies subject to the qualifications imposed by sub-section 6(2) of the Act. Therefore, the provision will not be applicable, in accordance with paragraph 6(2)(a) of the Act, where the travel was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route or, in accordance with paragraph 6(2)(b) of the Act, if the travel was interrupted in a way that substantially increased the risk of sustaining an injury.
46. Not every variation in route will disqualify a claimant under paragraph 6(2)(a) of the Act. In Vetter v Lake Macquarie City Council(2001) 202 CLR 439, the High Court was dealing with section 10 of the Workers’ Compensation Act 1987 (NSW) which has a similar purpose to that of section 6 of the Act but which is differently worded. It makes reference to the worker being on a journey and to material increase in risk because of an interruption or deviation. Gleeson CJ, Gummow and Callinan JJ said (at 452):
“There is no obligation upon a worker to take the shortest and most direct route from the worker's place of work to the worker's abode so long as the journey can be said to be a journey between the worker's place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker's residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in risk during or after any deviation or interruption. That is what the Act requires. Any question whether that requirement has been satisfied is not to be answered by posing and answering a different question altogether and of the kind posed by the Court of Appeal, was the appellant engaged in one or more journeys.”
47. In this case, the applicant’s place of residence was south of Brisbane at Paradise Point on the Gold Coast which was directly accessible by utilising the Gold Coast Highway. At the time of the accident, the applicant was travelling in a direction which was virtually opposite to that of Paradise Point and which would have required him to travel a distance of some 32 kilometres further than would have been the case if he had driven directly to Paradise Point. The applicant conceded in his evidence that the route that he and his then wife took involved traversing many intersections and negotiating many sets of traffic lights as opposed to a direct run down the Gold Coast Highway if he had gone immediately from the Crest Hotel to Paradise Point. The applicant said that he was concerned that parking facilities were not readily available in the city. However, they clearly were available because he travelled by car with his wife and was able to leave that car in the city during the function. In the statement that he made on 29 September 2001 (exhibit 8), which he said was completed after a careful consideration of his position, the applicant stated that he was tired and he recognised that it was late at night. Because of the additional distance involved in the journey that he undertook, the additional intersections and traffic lights that needed to be negotiated and his tiredness at the time, I am satisfied that the route taken by the applicant substantially increased the risk of sustaining an injury when compared with the more direct route of travelling to the Gold Coast on the highway.
48. Further, I am also satisfied that the deviation that he took to Ferny Hills constituted an interruption to his travel towards his ultimate destination at Paradise Point. The applicant depended, for the first half of the additional journey from the city to Ferny Hills, on his wife’s driving abilities rather than on his own. In his statement of 29 September 2001 (exhibit 8), he made reference to his wife and her driving. He expressed the opinion that she was tired and he described her as undergoing, during the journey, a change of mood from one of “bubbly disposition” at the function to one of “sullen and moody anger” when driving. He also said that his wife was speeding at the time of accident, that he had asked her to “slow down”, to “pull over” and to “stop the car” so that he could “catch a cab”. I am satisfied that this exposure to these behavioural traits represented a substantial increase to the risk of his sustaining an injury when compared with a situation where he drove himself, without the interruption, directly to Paradise Point.
49. For the reasons set out above, I am satisfied that, even if the notice requirements were met, sub-paragraph 6(1)(b)(ii) of the Act would not be applicable to the applicant because of the terms of subsection 6(2) of the Act.
Decision
50. The decision under review is affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 20 March 2003 (at Southport)
Date of Decision 9 May 2003Solicitor for the Applicant Mr E Muir, Solicitor
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Dibbs Barker Gosling
0
4
1