Haberfield and Department of Veterans' Affairs

DECISION AND REASONS FOR DECISION [2002] AATA 577

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1938
) No N2000/1501

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BRIAN PETER HABERFIELD
  Applicant
           And    DEPARTMENT OF VETERANS' AFFAIRS
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date12 July 2002
PlaceSydney

Decision      The tribunal affirms the decisions under review. The applicant is entitled to no costs in respect of either application.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – attendant care services, attendant care allowance, eligibility for – epilepsy-related blackouts – whether employee reasonably required regular personal care services – services required were with bathing, shaving, dressing – whether need for wife to be present in case of blackout was need for attendant care service – relevance of wife as provider of attendant care – relevance of non-payment of wife as attendant care service provider
WORKERS COMPENSATION – extension of time for requesting reconsideration of primary decision – merits of case do not justify grant of extension of time

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) "attendant care", "household services"), 29(1) – (4), (6), 60(1) ("determination"), 61(1), 62(2) – (5).

Bailes and Comcare, Re (AAT 13183, 14 August 1998).
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Hopgood and Comcare, Re (AAT 13229, 28 August 1998)
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
O'Connor and Australian and Overseas Telecommunications Corporation (AAT 8692, 7 May 1993)
Torney and Telstra Corporation Ltd, Re (1994) 20 AAR 94.
VXJ and Comcare, Re (1990) 19 ALD 269.

REASONS FOR DECISION

12 July 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

HISTORY OF APPLICATION

In April 1979 Brian Peter Haberfield ("the applicant") lodged a report of injury with the Australian Army (T3). In it he reported an accident causing him injuries that had occurred on 2 April 1966. It was a motor vehicle accident ("MVA") involving a collision between the car in which Mr Haberfield was a passenger and a semi-trailer. The car was Mr Haberfield's but it was being driven by another soldier who died in the accident. The time of the accident was 5.30 pm. Mr Haberfield and the others in the car were proceeding on leave from a Royal Australian Air Force base. Mr Haberfield sustained a fractured skull, cerebral haemorrhage and body lacerations. He was admitted unconscious to the Royal Australian Air Force Base Hospital at Richmond (NSW). A "frontal and subfrontal haematoma and cerebral oedema" were detected. Mr Haberfield lost his memory of events four weeks either side of the MVA. He had an operation on 19 April 1966 during which burr holes were drilled into the skull.
There had been a report of injury or illness lodged on 21 June 1966 (T3/7). This contained a medical assessment predicting that Mr Haberfield would be incapacitated for six months and may have permanent ill-effects.
On 24 April 1979 the applicant lodged a claim in respect of head injuries sustained in the MVA on 2 April 1966 (T5). He claimed to be incapacitated for work.
On 18 June 1980 a "supplementary determination" was issued under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") (T23). Liability was accepted for payment of compensation in respect of the injury on 4 [sic] April 1966. This was expressed to cover incapacity, medical and other expenses. The determination was at T24. Determinations covering incapacity and medical expenses ensued in following years (eg T26, T40, T45, T46, T51, T52, T62, T63).
On 4 July 1989 Mr Haberfield wrote to the Compensation Section in the Department of Defence reporting that he had had a seizure on 20 June 1989, that it was related to the compensable injury, that he had been taken by ambulance to Wollongong Hospital, that he had missed work from 20 to 30 June 1989 and that he was seeking incapacity payments and reimbursement for other expenses (T29).
On 10 April 1991 Mr Haberfield sent a letter to the respondent (see footnote number 1) claiming assistance by way of household services for the cleaning and vacuuming of his house, the washing of dishes and clothes and assistance shopping (T57). He claimed also for assistance with cooking, gardening and attendant care services. He said he had paid for all of these since October 1990.
On 27 June 1991 a delegate determined that payments would be made to Mr Haberfield under s 29(3) of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") (T61). Payments of $58.05 a week would be made in respect of required attendant care services. This amount would be updated each year on 1 July in accordance with the CPI. Household services would be reimbursed on presentation of receipts.
On 28 October 1996 an assessor visited Mr Haberfield to review his requirements for household and attendant care services (T82). On 20 November 1996 a delegate determined that the applicant was to be paid housekeeping and attendant care compensation at 100% of the applicable rate (T86).
On 24 April 1997 Mr Haberfield wrote to query how the rate of $58.05 had been struck in 1991 for attendant care services (see paragraph 7 above) (T97). He considered he should have been paid over $200 a week. He said there had been no update increases in July each year. He relied on a statement in T61 to the effect that the rate in 1991 had been struck by reference to s 19(8) of the 1988 Act.
On 28 May 1997 a representative of the respondent responded that s 19(8) concerned incapacity payments, not attendant care allowance (T98). It was in fact said to be irrelevant in Mr Haberfield's case. The applicant was dissatisfied with this response and on 2 July 1997 asked that the matter be further considered (T100). Later, on 30 December 1997, a representative of the respondent sought to clarify why s 19(8) had been referred to (T108). While reinforcing that Mr Haberfield's attendant care allowance was properly determined under s 29(3) of the 1988 Act, the writer suggested that, in deciding on a figure that was payable at less than maximum rate in 1991, the delegate had used s 19(8) as an indicator of an appropriate amount.
On 11 July 1997 a delegate decided that the amount due to the applicant for household services and attendant care was 70% of the maximum, taking account of the assistance provided to him by Mrs Haberfield (T101).
On 15 July 1997 the applicant protested at the reduction in the allowances and requested review of the decision in T101 (T102).
On 23 September 1997 a delegate revoked the decision under review and awarded 100% of the statutory rate of compensation for attendant care services as determined annually (T107). $281.56 a week was payable for attendant care services from 1 July 1997 and it would be indexed. There was nothing payable in respect of household services Mrs Haberfield and the children would provide in any event. Reimbursement for lawnmowing, gardening, cleaning of gutters, washing of windows, pruning, painting, etc would be considered as expenses arose. There was to be nothing for household maintenance, an item not covered by the 1988 Act.
On 7 January 1998 the applicant again raised in a letter to the respondent the alleged underpayments of attendant care allowance made between 1991 and 1996 and sought arrears (T109).
On 16 April 1998 the applicant's solicitor wrote to the respondent demanding payment of arrears of attendant care benefits (T137).
On 12 July 1999 a delegate decided that the respondent was not liable to pay compensation for attendant care services to Mrs Haberfield on and from 1 July 1999 (T142). The delegate relied on a report by Professor J G McLeod, a Professor of Neurology, dated 14 November 1998 (T132), in which it was said that Mr Haberfield required help for only limited functions. He took into account that Mr Haberfield's house had been modified at the respondent's expense and that Mr Haberfield had been given an electric scooter.
On 27 July 1999 and 9 August 1999 the applicant sought reconsideration of the decision in T142 (T145, T148).
reviewable decision – N1999/1938
On 15 December 1999 a delegate reviewed the decision in T142 and decided to affirm it (T154). Within his reasons the delegate wrote:
"Essentially I agree with the reasons for decision of the Delegate in the reviewable decision. The only other point I would make is the intention of Parliament in regard to the criteria for payment of attendant care services. Attendant care services were described in the Second Reading Speech as 'feeding, bathing, supply of medication or other services of a personal nature'. From the evidence available it seems that Mr Haberfield believes his wife should be paid attendant care allowance because he says his wife needs to supervise his activities of daily living in case he suffers a loss of consciousness or balance arising from his compensable head injury. To meet this would not seem to satisfy the criteria for the payment of attendant care services as intended by Parliament when the SRCA was enacted."
On 20 December 1999 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of this reviewable decision (T1).
reviewable decision – N2000/1501
The genesis of this reviewable decision is as follows:

On 27 June 1991 the respondent decided to pay the applicant $58.05 a week as attendant care allowance in respect of Mrs Haberfield's assistance to Mr Haberfield (T61).
On 24 April 1997 the applicant queried this determination, considering the rate too low (T97). This would appear to be a request for reconsideration.
On 27 July 1999 a formal request for reconsideration of the decision in T61 was lodged.
On 29 August 2000 the applicant's solicitor lodged submissions as to why a reconsideration should be undertaken despite the request for same not having been lodged within 30 days of notification of the decision (ex TD2/T7). The submission stated that the applicant contacted the respondent many times by telephone after he was granted attendant care allowance at $58.05 a week. He queried the amount awarded and submitted that it was inadequate.
On 14 August 2000 a delegate of the respondent wrote to the applicant refusing to conduct a reconsideration (ex TD2/T8). This is the reviewable decision. In his reasons for decision the delegate wrote:
"I have considered the submission of the employee's solicitor dated 29 August 2000. I not satisfied that a 'query' in relation to the amount awarded is sufficient to amount to a 'formal' request for reconsideration. Therefore, I find that there is no evidence of formal request for reconsideration until April 1997.
"Pursuant to section 62(3)(b) of the 1988 Act, a request for reconsideration must be made within 30 days of receiving notice of the determination or within such further period as Comcare allows. I note that there are no guidelines on matters for consideration when deciding whether to allow an employee an extended period of time in which to request a reconsideration….
"I note that the employee effectively seeks and [sic] extension of time of approximately 5 and a half years. I consider on the evidence available that Comcare was entitled to presume that the employee did not intend to request a reconsideration and that entitlement had been appropriately determined by the decision of 27 June 1991….
"… I consider that Comcare would now be prejudiced in assessing entitlement to allowances for a period which commenced over five and a half years prior to the request for reconsideration. Comcare is denied the opportunity to obtain contemporaneous medical evidence which would assist it in determining whether the decision under review ought to be set aside or varied in any way.
"I now turn to the merits of the substantial application. Insofar as the request relates to attendant care services, for so long as the employee has not made any actual payments for such services, there is no entitlement to compensation. In addition, I note that it is generally the case that attendant care services are not payable where those services were provided by relative of the employee, as is the present case (see Re VXJ v Comcare (1990)
"Additionally, I note that the effect of section 29(1) of the 1988 Act provides that compensation is due where services are 'paid' or 'payable' for household services. As there is no evidence that money was paid or payable to Mrs Haberfield for her services, then this removes Comcare's liability to pay for her household services in any event (see Bailes and Comcare V97/695, AAT no 13183, per Senior Member Dwyer)."

On 21 September 2000 the applicant lodged with the tribunal an application for review of the reviewable decision (ex TD2/T1).
RELEVANT LEGISLATION
At the time of the injury the compensation legislation in force was the Compensation (Commonwealth Government Employees) Act 1930. At the time of the claim in 1979 the relevant Act was the 1971 Act. By the time when Mr Haberfield sought attendant care allowance and compensation for expenses incurred for household services in 1991 the 1988 Act was in force. The provisions of the 1988 Act relevant to the two applications before the tribunal are: ss 4(1) "attendant care", "household services"), 29(1) – (4), (6), 60(1) ("determination"), 61(1), 62(2) – (5).
SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
attendant care services, in relation to an employee, means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee;
…
household services, in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household;
…
Compensation for household services and attendant care services
29. (1) Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
(3) Where, as a result of an injury to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of:
(a) $200 per week; or
(b) an amount per week equal to the amount per week paid or payable by the employee for those services;
whichever is less.
(4) Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the nature of the employee's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e) any assessment made in relation to the rehabilitation of the employee;
(f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services.
…
(6) An amount of compensation payable by Comcare under subsection (1) or (3) is payable:
(a) where the employee has paid for the household services or attendant care services, as the case may be-to the employee; or
(b) in any other case-to the person who provided those services.
Interpretation
60. (1) In this Part:
…
"determination" means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B (5) (a) or under Division 3 of Part X;
…
Determinations to be notified in writing
61. (1) As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62 (2).
…
Reconsideration of determinations
62. (1) …
…
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
…
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

BACKGROUND

Mr Haberfield was born on 6 October 1945. He was brought up in the western suburbs of Sydney and attended schools in Parramatta and Blacktown. He had nine years of education before commencing as an apprentice carpenter and joiner. He enlisted in the army at age 20 and was discharged as medically unfit on 5 October 1966. He went on to work in the shop fitting industry eventually owning three businesses. He ceased work in 1989.
Mr Haberfield has been married three times His first wife left him in 1978. They had three children. She took two with her and left the third, the youngest, with Mr Haberfield. He remarried in 1983 after this but that marriage failed also. He began cohabiting with his third wife in 1990 and they married in 1994. She brought two children into the relationship.
Mr Haberfield currently reads, does some handicraft, mainly rug making, potters around and sits at home.
HEARING, APPEARANCES AND EVIDENCE
On 15 and 16 February 2001 and on 7 and 13 June 2001 the tribunal convened a hearing in Sydney to consider these applications. Mr Mark Daley of counsel represented Mr Haberfield. Mr Grant Elliott of counsel represented DVA.

Oral evidence was provided by Mr Haberfield, Mrs Elizabeth Haberfield (wife of the applicant), Mr Paul Ontong from DVA, Dr A Do, the applicant's general practitioner, Dr E Tam, a physician, Dr P Henke, rehabilitation medicine specialist, Ms P Bristow, an acquaintance of Mr Haberfield and Ms B Brigden, the applicant's stepdaughter.
The tribunal had access to the following documents which were received into evidence and marked as follows:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T157) provided by the respondent for application N1999/1938.
Exhibit TD2 – Section 37 Statement and associated documents (exhibits T1 – T8) provided by the respondent for application N2000/1501.
Exhibit A1 – Report dated 24 August 2000 by Dr Tam.
Exhibit A2 – Report by Dr J D Carey dated 26 September 1979 (also T13).
Exhibit A3 – CT scan report by Dr Ford dated 27 November 1989 relating to lower thorax and upper abdomen.
Exhibit A4 – Report by Dr J Ell, neurologist, 26 July 1995.
Exhibit A5 – Report by Dr Do dated 22 August 1997.
Exhibit A6 – Report by Dr R Joffe, physician, 16 November 1997.
Exhibit A7 – MR scan of brain, report by Dr Brazier dated 9 November 1997.
Exhibit A8 – Report by Dr Walsh, 25 August 1997.
Exhibit A9 - Statement by Mr P Walker, 24 April 2001.
Exhibit A10 – Statement by Ms K Wallis, 24 April 2001.
Exhibit A11 – Statement by Mr A Garzon, 4 May 2001.
Exhibit A12 – Statement by Ms M Train, 26 April 2001.
Exhibit A13 – Statement by Ms V Toth, 24 April 2001.
Exhibit A14 – Statement by Mr S Czernicki, 26 April 2001.
Exhibit A15 – Statement by Ms C Czernicki, 26 April 2001.
Exhibit A16 – Statement by Ms H Robinson, 20 April 2001.
Exhibit A17 – Statement by Ms R Drew, 19 April 2001.
Exhibit A18 – Statement by Ms W Chapman, 25 April 2001.
Exhibit A19 – Statement by Mr J Rose, 28 April 2001.
Exhibit A20 – Statement by Ms B Brigden, 15 April 2001.
Exhibit A21 – Statement by Mr A J Lee, 21 May 2001.
Exhibit A22 – Statement by Mr J Robar, 7 May 2001.
Exhibit A23 – Statement by Ms G Cooper, 1 May 2001.
Exhibit A24 – Statement by Ms M Train, 16 May 2001.
Exhibit A25 – Statement by Ms A Denning, 16 May 2001.
Exhibit A26 – Applicant's statement of facts and contentions, 13 September 2000.
Exhibit R1 – Report (6 pp) by Dr Henke dated 1 August 2000.
Exhibit R2 – Statement by Mr Ontong dated 7 February 2001.
Exhibit R3 – Surveillance videotape recorded 29 May, 31 May and 11 June 2000.
Exhibit R4 – Surveillance report by Brimar Investigations Pty Ltd, 26 June 2000.
Exhibit R5 – Applicant's driver's licence renewal notice for 1995-2000.
Exhibit R6 – Road Traffic Authority (NSW) medical questionnaire relating to the applicant, 14 August 1999.
Exhibit R7 - Road Traffic Authority (NSW) medical questionnaire completed by Dr A Do relating to the applicant, 12 August 2000.
Exhibit R8 - Report (2 pp) by Dr Henke dated 1 August 2000.
Exhibit R9 – Videotape of applicant in England 8 April to 27 May 1994.
Exhibit R10 –Photographs of applicant.
Exhibit R11 – Report by Dr M Moore, psychiatrist, 30 April 2001.
Exhibit R12 – Respondent's statement of facts and contentions, 14 August 2000.

EVIDENCE
medical evidence
Dr R Joffe (physician)

On 4 July 1979 Dr Joffe recorded a grand mal epilepsy attack as occurring on 6 October 1978 (T10). He wrote that Mr Haberfield had had a number of minor attacks since the MVA. He wrote that the applicant had a left temporal lobe contusion following the MVA. An EEG in October 1978 showed a temporal lobe focus on the left and a CT scan demonstrated an area of decreased density of the left frontal lobe, with slight dilation of the frontal horn of the lateral ventricle. The appearances were consistent with trauma. The diagnosis was post-trauma epilepsy reasonably well controlled.
On 24 April 1980 Dr Joffe said again that Mr Haberfield had post-traumatic epilepsy and that on balance it was due to the injury he sustained on 2 April 1966 (T18). He had sustained permanent damage and was on anti-epileptic therapy.
On 22 February 1997 Dr Joffe wrote that Mr Haberfield was still falling and banging his head on occasions (T91). His balance remained poor and worse on turning to the right and when posturing. The right arm tremor was thought to be functional. Inderal was recommended. He remained ataxic.
On 16 July 1999 Dr Joffe diagnosed Mr Haberfield as having epilepsy and with a guarded prognosis (T141). He could not imagine Mr Haberfield ever working again and saw him as 100% impaired.
Dr J Carey (general practitioner)

Dr Carey wrote on 26 September 1979 that he had treated the applicant for epilepsy since 26 October 1978 (T13). The applicant had continued to suffer from epileptic seizures from that time and had one on 21 August 1979. He had fallen down stairs and went to hospital. He could not work and had lost his driver's licence.
Dr J Ell (neurologist)

Writing on 1 August 1989 Dr Ell said that Mr Haberfield had been free from episodes of imbalance until November 1986 when he fell backwards at work without any warning (T34). He had repeated falls in the next 30 minutes. Episodes of falling had continued. In addition he had deafness in the left ear, right partial third nerve palsy and right hemiplegia. A CT scan of the brain showed old frontal contusions, more on the left than the right. His ongoing problems since 1966 were said to be attributable to the 1966 injury. The diagnosis was post-traumatic epilepsy with brain damage and imbalance. The prognosis regarding the balance was uncertain.
On 6 March 1990 Dr Ell wrote that Mr Haberfield's balance remained poor, that there was no treatment for the condition, and that he was incapacitated for all work as a tradesman, although he may be capable of clerical work with retraining (T47).
Dr Ell reported on Mr Haberfield on 19 November 1996 (T83). He recorded that Mr Haberfield presented an exaggerated performance on the examination of gait and balance. He had a functional tremor in the right upper limb. He had a complex and elaborated symptomatology. He said that Mr Haberfield continued "to have multiple difficulties and multiple symptoms. Many of the seemingly abnormal findings on physical examination I do not think have an organic basis. However one often does see unusual and bizarre behaviour in people with previous head injury."
Dr J J Byrne (general practitioner)

Dr Byrne certified on 9 April 1991 that Mr Haberfield requires assistance with showering grooming and assistance if he goes outside his house as he may fall (T53).
Mr B McGurie (psychologist)

Mr McGurie treated Mr Haberfield for the right arm tremor and speech problems opting for relaxation therapy and cognitive behaviour therapy (T90).
Dr A Do (general practitioner)

On 19 March 1997 Dr Do reported that Mr Haberfield had a definite problem with balance and that this could be adversely affected by anxiety and stress (T93). A right arm tremor was controlled by Inderal. Mr Haberfield had epilepsy. He needed help with heavy work around the house such as lawnmowing and gardening. She recommended that he be given an electric scooter. He could not return to work.
On 22 August 1997 Dr Do wrote that Mr Haberfield was still unstable on his feet with a few falls and collapses (ex A5). He required almost constant supervision from his wife. It would be a great help if Mr Haberfield and his wife could receive the same level of allowances as previously.
On 24 June 1998 Dr Do wrote that Mr Haberfield had a deteriorating condition (T115). He had had more falls in the past few days. There was a problem regarding how a scooter would be transported in Mrs Haberfield's car and a dispute about back pay of attendant care allowance.
On 11 January 2000 Dr Do wrote that Mr Haberfield was growing worse with akinetic attacks, collapsing three times in the past three days (T157). Twice he collapsed without warning. He could hurt himself if his wife were not present to catch him. He needed to have someone around him for almost 24 hours.
Dr Do gave evidence at the tribunal hearing on 16 February 2001. She said that she had been a general practitioner since 1994. She became Mr Haberfield's general practitioner late in 1996. She sees the applicant about once a fortnight. Mr Haberfield consults other general practitioners only when she is absent from the practice. She described four conditions suffered by Mr Haberfield that are attributable to his 1966 MVA. These are drop attacks, balance problems, headaches, stress and anxiety.
In relation to the so-called drop attacks she said that there was no medical name for them. She said that he turns to jelly and blacks out and that the attacks are accompanied by slurred speech and headaches. As she had done in her written material, she compared these attacks to a different type of attack which involved a feeling of being drained. She said that sometimes he has no recall of having had an attack. She said that he cannot respond if called out to, however he can hear the calling. She placed the frequency of his attacks as two to three a week or sometimes two to three a day. She said that they occur more frequently when he is under stress but that this is not invariable. She said that his condition was worsening and that the drop attacks were happening more frequently without warning.
Dr Do said that she had witnessed drop attacks in her surgery. In one he evidenced slurred speech but was not quite unconscious. He was being examined at the time and his systolic blood pressure was up a little. She said that he had had drop attacks twice whilst sitting down. In the second one he had fallen asleep in a chair whilst talking to his wife.
Dr Do referred to Mr Haberfield's tendency to veer from side to side whilst walking. She related this to his middle ear problems which had been treated but were not successfully treated. She said that he has balance difficulties only when standing or walking.
She said that Mr Haberfield experienced headaches on a daily basis of varying severity. They were accompanied by blurred vision. They were related to his head injury. She said that they represented part of the brain trying to compensate for another part of the brain that was no longer working. She said that these were not migraine headaches.
She said that Mr Haberfield experienced stress and anxiety because he tried to live his life as a normal person. He tried to attain perfection, however he often cannot do something or he can do it but not to an appropriate level. He had persistent problems of a shaky hand and blurred vision coupled with concentration problems. He found this frustrating and Dr Do had observed anxiety as a consequence.
Dr Do said that she had been involved in Mr Haberfield's driver's licence renewals since 1998. She said that first she was concerned about Mr Haberfield driving at all. However she had been convinced that he does not experience drop attacks whilst seated. She warned him that his licence could be removed from him if he had a drop attack whilst seated.
Dr Do told Mr Daley that she adhered to the opinion that she had expressed in T115 (see paragraph 41 above). She had relied upon Mr Haberfield's cooperation in her investigations of his conditions and she had found his complaints were consistent. She considered that Mr Haberfield required 24-hour care because of his balance problems. She said that he is at risk whenever he gets up. He could have drop attacks at any time. Mr Daley put to Dr Do Mrs Haberfield's list of ways in which she assists Mr Haberfield (see paragraph 129 below). Dr Do agreed that Mr Haberfield needs this range of assistance.
In cross-examination Mr Elliott put to Dr Do that Dr Ell found some of Mr Haberfield's symptoms inexplicable and considered them to be functional. Dr Do said that she was now satisfied that the majority of Mr Haberfield's problems are organic. His anxiety and stress make them worse. She did agree that his balance problems cannot be explained in a textbook sense.
She told Mr Elliott more about the blackout that had occurred two months earlier in her surgery. She said the blackout was not accompanied by a rising temperature, heart rate or blood pressure. It was accompanied by the dilated pupils, slurred speech, muscle wasting, perspiration and reduced reflexes. Dr Do said that she had seen probably 15 or 20 blackouts in total. She said that they vary in severity. She said that Mrs Haberfield is usually present in the surgery. Dr Do said that if the applicant comes alone to see her she assists him into the surgery herself. Dr Do said that his walking stick is important to Mr Haberfield because she had asked him that one stage to walk down the corridor without using the stick and he had veered from left to right in doing so.
Mr Elliott told Dr Do that videotaped evidence showed Mr Haberfield standing unaided for 10 minutes. Dr Do said that this would not surprise her if he was able to use his walking stick or if he was able to lean on a wall. She said that it would surprise her if he were able to stand freely for 15 minutes as is shown in the video. Dr Do agreed that Mr Haberfield can get up out of his seat by himself, albeit with a degree of difficulty.
Dr Do considered that Mr Haberfield had bending problems. She considered that he would have a problem bending to 90 degrees. She agreed that he would be able to pick a bag up off the ground but commented that it was a matter of how quickly he would be able to do the task. The slower the task is done, the better it would be.
Dr Do said that the applicant could leave his house alone on his motorised scooter. However, she said that he should usually be accompanied by somebody when doing this unless he was using the scooter only to go to very nearby shops. It was put to Dr Do that surely Mr Haberfield entering shops and having to stand walk around would expose him to problems. However, Dr Do said that he could do those things if he had benches and walls to provide support for him. She conceded that he would be doing this at some risk.
Mr Elliott suggested that Mr Haberfield could be left alone at home because everything is set up for him there. Dr Do replied that Mr Haberfield only leaves the house at an absolute minimum.
Dr Do told tribunal member, Dr Campbell, that she has visited Mr Haberfield's house once for a child's birthday party. She had seen the house and its set up at that time. Dr Campbell also queried the symptoms allegedly attached to Mr Haberfield's middle-ear problems. This is a problem on only one side yet when he walks he deviates in both directions. Dr Do suggested that the deviation in two directions involved an overcorrection following the deviation in the direction one would expect from the middle ear disease.
In further cross-examination Mr Elliott observed that Mrs Haberfield said that the applicant had had one drop attack when seated. Dr Do described that as Mr Haberfield falling asleep whilst eating. This occurred in 1998 and was accompanied by slurred speech. She had certified Mr Haberfield as fit to drive because this occurred on only one occasion.
Ms B Liddle (neuropsychologist)

Ms Liddle conducted a neuropsychological assessment on 13 May 1998 (T112). In the course of this she noted that Mr Haberfield had headaches that were assisted by Inderal. She took a history of two kinds of blackouts afflicting Mr Haberfield. "One type sounded seizure-like with a brief aura, no memory of what happens during the blackout and poor control over his facial muscles and speech when he is coming out of it. He also described 'blanking out' when he has to undertake a task which he finds too hard. When this happens he feels 'slow nothingness' and he cannot function or process information". Ms Liddle proceeded to see Mr Haberfield for several therapy sessions until September 1998 (T124).
Professor J G McLeod (Professor of neurology)

Professor McLeod wrote two reports on 5 November 1998. He certified the applicant as permanently and totally disabled as a result of the head injury on 2 April 1966 (T128). He listed Mr Haberfield's medications as Dilantin (for epilepsy), Inderal (for tremor), Sandomigran (for headaches), Somac (for dyspepsia) and Zocor (for hypocholesterolaemia) (T129). He identified two types of blackouts suffered by Mr Haberfield:
(a)Attacks which occurred usually while standing or walking without warning in which he suddenly dropped to the ground and remained unconscious for about five minutes. There were no convulsions. Post-ietically he had headaches, stiffness of the jaw, was unable to talk or move his arms, and he then gradually recovered. These attacks were becoming more frequent since 1996 and he was now having two to three attacks a week. These were regarded as epileptic drop attacks or akinetic seizures related to his frontal lobe damage.
(b)This type occurred always while Mr Haberfield was standing. There were symptoms of greyness of premonitory vision, he felt as though the energy was ebbing from his body, his legs went week, and he fell to the ground. These attacks sounded like simple syncope, possibly due to postural hypotension.
Professor McLeod identified vertigo in the form of positional vertigo related to his left labyrinthine disturbance. He saw Mr Haberfield's headaches as a variant of migraine. He also recorded Mr Haberfield's concerns over poor short-term memory.
Professor McLeod diagnosed frequent akinetic epileptic attacks when Mr Haberfield dropped to the ground. He needed 24-hour care. He was suffering from a high level of anxiety. Professor McLeod said that the drop attacks were notoriously difficult to control. Mr Haberfield was totally incapacitated and rehabilitation would not help him.
On 24 November 1998 Professor McLeod retreated somewhat from his earlier opinion in providing in detail a description of the care required by Mr Haberfield. He needed help only with showering, toileting and walking. It was not necessary that he never be left alone.
Dr P Collett (respiratory physician)

He looked for symptoms of narcolepsy or sleep apnoea (T134). He found little evidence of a sleeping problem. Mr Haberfield's falls were not sleep attacks. His head injury was the dominant and only cause of his symptoms. The symptoms were likely to continue.
Dr I T Lorentz (physician/neurologist)

When he examined Mr Haberfield on 1 June 1999 Dr Lorentz reported that "He used a walker on wheels to get about. When walking, he was hearing from the right to the left side and from the left to the right.... During the examination, he had an episode when he collapsed on a small stool without any loss of consciousness. He appeared to be slightly shaken up." (T138) Dr Lorentz diagnosed akinetic epilepsy and uncontrollable vertigo related to the MVA and with a guarded prognosis.
On 4 August 1999 Dr Lorentz wrote that attendant care services were necessary to permit the applicant to remain at his home (T147). He needed care by a relative from 6.00 pm to 8.00 am each day. He was unfit for continued employment.
Dr E Tam (physician)

Dr Tam recorded Mr Haberfield as telling him that he was a commander of the SAS in Vietnam for 14 months and that he was a Second Lieutenant when he had the MVA (ex A1). He accepted that Mr Haberfield had had blackouts and epilepsy attacks. He listed Mr Haberfield's problems as left frontal headache, grand mal epilepsy, akinetic epilepsy, frequent blackouts (sometimes twice a day; sometimes symptom-free for two to three days), arms could not be moved and jaw went stiff. He listed also chronic dizziness, vertigo, concentration difficulty, short-term memory loss, right hand tremor, anxiety, depression, left ear deafness and instability producing falling
Dr Tam reported that Mr Haberfield had difficulty putting on his shoes. He could not bend down and stand again because of vertigo and dizziness. He could not bath himself because he could easily lose balance. He could not drive or participate in any sports. He had been unable to work since 1991.

He presented walking with a stick. He had a disabling balance problem on transferring from a sitting to a standing position. He had to stand for a while to regain his balance. He walked with a "cautious gait". His lower limb reflexes were normal.
Dr Tam considered that as a result of his MVA injury he suffered from severe and substantial structural brain damage with post-traumatic epilepsy and headache, damages to the vestibulocochlear system with severe positional vertigo, and hearing loss especially in the left ear. The post-traumatic epilepsy had been difficult to control. The MVA had caused drastic deterioration in his life including severe physical disability with balance problems, instability and falls, dizziness and vertigo, headaches, social losses (his first two wives left him), vocational loss and financial loss. His psychological suffering was significant. He had no work capacity. He was dependent in activities of daily living and needed substantial personal care. His prognosis was poor. He was at high risk of falls and injuries/fractures.
Dr Tam gave oral evidence at the tribunal hearing on 16 February 2001. He said that he had been in Australia since 1992, that he is a geriatrician and has many brain damage patients.
Dr Tam said that Mr Haberfield has brain damage. And EEG had shown a pathology indicating brain damage. A MRI had shown scarring of the brain. These conditions could affect his judgments and insight but his memory appeared relatively good. Mr Haberfield's epilepsy had been a result. He had had a large number of minor seizures. Mr Haberfield suffered also from severe dizziness and vertigo. He experienced difficulty transferring between chairs or from a chair to a couch. He accepted that Mr Haberfield experienced frequent drop attacks and that he had epilepsy and ataxia resulting from his damage to his cerebellum. Dr Tam said Mr Haberfield had an absolute need for care and that he was disabled most of the time. Mr Haberfield was not fit to drive. Dr Tam said that the care Mrs Haberfield gives Mr Haberfield is what he requires. He agreed that Mr Haberfield would have some good days and some bad days.
Dr Tam gave oral evidence. His evidence amounted to:

A MRI scan on 9 November 1997 showed tissue loss and scarring of the brain, notably the left frontal temporal area. This had produced epilepsy of various types, presenting as drop attacks or kinetic attacks, dizziness, vertigo and balance problems. He commented on Mr Haberfield's difficulty transferring from chair to standing and rising from the examination couch. He had to hold on to objects when walking. He saw damage to the cochlear as contributing to the applicant's hearing problems, his balance problems, his dizziness and vertigo.
The drop attacks were related to epileptic seizures, akinetic seizures. "The other possibilities are the ataxia caused by the cerebral and cerebellar possible damage and also the pathway in-between in the mid brain damages and also he could have partial autonomic manifestations with possible hypotensions and falls" (transcript, 16.2.01, Dr E Tam, P-4).
Mr Haberfield needed quite a lot of care. "Now, if he is conscious of his - of the manifestations he would be very, very disabled because of walking, balancing, carrying out activities of living are a problem. Well, of course, a lot of people -- if his mind has taken off, he is auto piloting program may take over and he could do something which he appears quite normal but most of the time he would be disabled and producing substantial burdens of care and I understand to his wife and also he needed personal care and other people to be around him all the time because they -- the other factor is a safety factor. … He -- because of these situations such a height, crossing roads, this would put him into a life-threatening situation. Driving is also a risk. … With his manifestation he is not fit to drive." (Transcript, 16.2.01, Dr E Tam, P-4).
On a good day, Mr Haberfield would be operating in a diversional activity state such that he could forget a pain or disability because his mind had been taken off the pain or disability and he had been encouraged to concentrate on other things. He could carry out motor functions without problem so long as these activities are not "brought to his cortex", his conscious level. If brought to his conscious level the symptoms would return and be very disabling.

In cross-examination he told Mr Elliott that Mr Haberfield had entered his surgery walking on his own with a stick, without support from his wife but with a gait disorder. Dr Tam considered the gait disorder to be something only a specialist would notice. (Dr Henke, in later oral evidence, professed to see nothing notably abnormal in gait.)
Dr Tam told Mr Elliott that Mr Haberfield had reported to him that he had been a commander of the SAS in Vietnam for fourteen months. He said that if this were incorrect it would be one of the manifestations of Mr Haberfield's brain damage. He said that the memory could be deflected or "misimplanted" by virtue of brain damage.
Dr Tam agreed with Mr Elliott that MRI scans do not of themselves predict what particular functionality in a patient is going to be adversely affected by brain injury. He agreed that in assessing the level of functionality, a doctor must rely upon, amongst other things, a patient's presentation at the time of examination. Dr Tam said that he takes note of the patient's history and reports by other specialists on the patient as well.
Dr Tam agreed with Mr Elliott that when Mr Haberfield presented for examination he did so in a quite disabled fashion. Dr Tam agreed that this was likely to be his general presentation. Mr Haberfield had told Dr Tam that he was unable to drive at the time when Dr Tam examined him. Dr Tam appeared to express some surprise when told that Mr Haberfield has a drivers licence and, on the evidence of Mrs Haberfield, drove about once a week. Dr Tam responded by suggesting that, most probably, the routes being followed by Mr Haberfield in his driving would be routine routes. The driver pursuing routine routes does not need to use his or her brain. The driver is "automatic piloting".
Dr Tam told Mr Elliott that he had been told by Mr Haberfield that there were occasions when he was seated and would have a drop attack. Dr Tam said that he would have been told that Mr Haberfield can suffer dizziness and vertigo whilst seated. Mr Elliott then asked Dr Tam whether he was surprised to hear that during the tribunal hearing Mr Haberfield had said that he has no real problem with balance or blackouts when he has been seated. Dr Tam said that he was not. He saw it as a manifestation of Mr Haberfield's brain damage. Mr Haberfield still has "enough program installed to allow him to autopilot. So basically his brain is operating in automatic mode and the other one is on a conscious mode. If he's in a conscious mode and he'll have all sorts of symptoms and disability. If he's in the automatic subconscious level, you know, he could do anything he like because the mind, the conscious mind, would not be involved. … He could [walk by himself on occasions]" (transcript, 16.2.01, Dr E Tam, P-9). Dr Tam told Mr Elliott that Mr Haberfield would require aid of some sort to walk around depending on which mode he was operating within.
Mr Elliott put to Dr Tam that Mr Haberfield could have been significantly exaggerating in his presentation. Dr Tam refused to entertain this possibility. He said that the areas of the brain dealing with motor mechanism, speech and visualisation were not significantly damaged. The damaged areas were those described by Dr Tam as "his subtle parts", the frontal lobe, the deeper temporal lobes. Dr Tam saw the balance problems as a combination of Mr Haberfield's inner ear problem and his frontal lobe.
Dr Tam told Mr Elliott that Mr Haberfield had complained to him of a feeling of moving around and swirling in a room even when he was stationary. Mr Elliott asked Dr Tam if he was surprised to hear that during the tribunal hearing Mr Haberfield did not say that this was a feature of his condition. Dr Tam thought that Mr Haberfield may have a poor recollection of these symptoms because of his brain damage. Dr Tam refused to countenance that Mr Haberfield was an unreliable witness preferring to refer to the severity of the MVA as the explanation for inconsistencies.
Mr Elliott then queried why it was that the first 20 years after the MVA involved different symptoms from those as of 1986. He said that the trauma of the accident itself, if anything, did not really provide any guide as to what Mr Haberfield's current condition was. Dr Tam disagreed suggesting that Mr Haberfield had had enough brain reserve to cover the disabilities "and when years go by all the damaged brain, all they -- with this manifestation evolve when the brain reserve come in -- without the accident I do not believe such manifestation would happen in him".
Mr Elliott asked Dr Tam to comment on some of the footage from the surveillance video. Dr Tam agreed that the video showed Mr Haberfield walking without using his wife for support at the time. He agreed that it showed him turning and looking about the shop and tending to things on display without any apparent observable problems with his balance. He agreed that it showed Mr Haberfield able to get out of the chair without relying upon his wife or anything else for extra support. He agreed that it showed Mr Haberfield bending right down and retrieving an article from the floor. He agreed that this was without any apparent problem. He agreed that Mr Haberfield did not appear to be dependent on use of the stick that he was carrying at a certain point in time in the video. He agreed that the video showed Mr Haberfield getting into a motor vehicle without any obvious sign of problem. He agreed that the video showed Mr Haberfield retrieving garbage bins from the verge of his property. He put to Dr Tam, "Sir, that video footage shows somebody merely going about their day-to-day life in a relatively normal fashion, doesn't it?". Dr Tam answered, "I only say it's a sample of his day-to-day life." (Transcript, 16.2.01, Dr Tam, P-14) Dr Tam proceeded to say, "I accept this video fact and I also have to point out that, I mean, even a person with their whole frontal lobe chop off, you would expect such a behaviour to. I mean, from the lobotomy used to treat psychiatric patients, that does not affect the patient's ability to perform all his motor skills, standing, walking, shopping and also driving cars. And in fact we encourage our brain injury patients, from trauma, from stroke, to actively participate in -- this is called diversional therapy. You -- you just carry out those activities subconsciously with autopiloting. You can do it and you forget about the pain and suffering. … I will say Mr Haberfield is behaving in a bipolar way, both of which are perfectly normal for him. Indeed, he could perform well, but this is take an autopiloting mode and most of the time when he's by himself, when he's more aware of his disability, he would not be able to perform such a skilful act and all the dizzy symptoms, all the other somatic symptoms will come back." (Transcript, 16.2.01, Dr E Tam, P-14-15)
Dr Tam agreed with Mr Elliott that at no time when he saw Dr Tam did he describe the level of functionality such as that shown on the video. However, Dr Tam continued to attribute inconsistencies to his theory of "autopiloting" and refused to countenance any suggestion that Mr Haberfield had exaggerated his level of symptoms. Dr Tam said that he had to trust the history given to him by Mr Haberfield and his own judgment. He said that whilst he obtained no history of Mr Haberfield being able to perform as he had in the video he did not need to be aware of such things because it was enough for him to know of the MVA and the consistent history and physical examination derived by him from his meeting with Mr Haberfield. Dr Tam insisted that Mr Haberfield would require 24-hour, seven days a week care unless he was able to avoid acting in a conscious way.
Dr P Henke (specialist in rehabilitation medicine)

Mr Haberfield told Dr Henke that since 1986 his balance problems had remained relatively unchanged (ex R1). If he bent or turned to the right or tried to do up his shoes he would fall forward and if he looked upwards he might fall backwards. He denied any spinning or warning and did not lose consciousness. When this happened, it often happened in slow motion effect. On other occasions he may simply black out. He may fall in almost any direction. His blackouts had continued up to the time of the consultation with between two and three of these occurring every week.
Mr Haberfield told Dr Henke that inside the house he would walk slowly and that he had a walking frame that was not helpful. He also used a stick. When walking in the house he would get balance from leaning on furniture. When outside the house he would walk with his hand on his wife. He reported difficulty in going through doors and turning. To get out of the house he would walk with his wife and there was a rail on the steps to the house. To go to the shops he would travel in a scooter and generally this was only to the chemist shop order to pick up medication. At other times he would walk in the community for brief walks being held by his wife. He generally felt unsteady like being on a boat.
He told Dr Henke that he had retained his licence but was not using it. There was apparently a restriction that he was not to drive more than 10 km from his house. His wife had driven him to see Dr Henke.
He was showering using a shower seat and rail and had to be in a seated position. His wife assisted with some aspects of drying him and also with putting on his shoes and socks and trousers as he might otherwise lose balance. At times he would attempt to go out into the garden but said that he had to get on to his knees and hold on to an object before he could do anything in the garden.
Mr Haberfield reported for the examination using the walking stick and when he entered the room he was supported by his wife. He hesitated when approaching doors and when turning.
Dr Henke noted that Mr Haberfield had reported two types of blackouts which had been described in the report of Prof McLeod. Dr Henke said that it appeared that Mr Haberfield was having epileptic drop attacks as well as possibly some postural hypotension. Dr Henke anticipated that Mr Haberfield would continue to have the drop attacks, however he thought the postural hypotension might be managed slightly better but that it was the lesser problem.
Dr Henke concluded that Mr Haberfield needed to be accompanied when walking outside of his home. The house was appropriately set up for him to move around within the house independently. Dr Henke said that he might require some assistance when showering and dressing in the mornings. He was potentially capable of preparing food and carrying out some aspects of household care but he might have difficulty with heavy tasks, especially those which require ability to bend and twist. It was unlikely that he could maintain gardens or operate machinery such as lawnmowers without being at risk. On his presentation at the consultation it was doubtful that he could drive a motor vehicle. Dr Henke wrote, "He reports that this approval [to drive] is given on a yearly basis. This would suggest that he may be presenting better to the examiners of the Department of Motor Transport than he does at this consultation."
Dr Henke felt that he might require approximately one hour of personal care each day plus three or four hours of assistance at home each week for maintenance of the home, and a further two hours a fortnight for external maintenance of the home.
There did not appear to be an indication of a need for a live-in attendant carer. Dr Henke wrote:
"It would therefore seem that his wife is functioning in a similar manner to most partners. She is providing assistance with the showering and is probably doing more than most partners would do in terms of the sharing of the housework. It does appear that he is potentially capable of preparing food and feeding himself independently and the set up with his dosage box for pills effectively removes a need for his wife's involvement in his medication.
"It would therefore seem that his total requirements for personal care are approximately four hours per week. His requirements for assistance with household work if he was living by himself would be approximately four hours per week and his requirements for assistance with care outside of a house would be approximately one hour per week."
On the same date Dr Henke wrote a report after viewing the videotape that is exhibit R3 (ex R8). His observations in relation to that evidence will be discussed below when that tape is assessed.
Dr Henke gave evidence during the tribunal hearing. As above, Dr Henke referred to the difference in presentation between the time when Mr Haberfield had seen him in his rooms and when the video surveillance was done. He said he could not reconcile the two presentations and that they appeared to be too far apart. He said that if one were to assume that Mr Haberfield had a condition which made it very difficult for him to get up and move around and made him require assistance for sitting and standing, entering or leaving rooms, one would expect that that would continue to be the case into the foreseeable future. There had been nothing that suggested a condition that changed dramatically. He said that then to be shown video that indicates that he can move around, move in people and change his posture without great difficulty would suggest that he had a condition that was reversible and, on the history given, they had not seemed to be a probability of reversibility. Mr Haberfield had not suggested that his presentation in Dr Henke's rooms was part of his experiences as on a bad day. The impression he had given was that it was a typical day. He gave no indication to Dr Henke that he experienced good days where his functionality was similar to that shown in the video.
Asked to comment on Dr Tam's theory of autopiloting and acting in a bipolar way, Dr Henke said he understood Dr Tam to be suggesting that there are periods when Mr Haberfield was just doing things without really being aware of what he was doing. He said that in his experience he had not seen anyone with frontal injuries on one day do something and then a day later not be able to do it and then, on the next day, to be able to do it again. He was not aware of such a syndrome and, to his mind, it was not typical of frontal injury. He said that people can do things and not be all that aware of what they are doing but they do not suddenly change their behaviour very dramatically from one manifestation to the other.
Mr Elliott asked Dr Henke to address the evidence given by Dr Do concerning drop attacks that she had witnessed in her own surgery. She had reported that Mr Haberfield's BP did not greatly change after such an attack, although she did say that there was a dilating of pupils and loss of muscle tone. She also said that there was no finding of incontinence related to these particular conditions. Mr Elliott also asked if there could be a problem with balance that can cause fainting and loss of consciousness. Dr Henke responded that, if balance problems stem from the vestibular system, fainting generally is not part of that syndrome. The person may fall down but would retain consciousness.
Dr Henke considered other explanations for drop attacks. He said they basically come in two forms. They can come as a source of a temporary neurological abnormality, and abnormality of the functioning of the brain, or they can come as a disturbance of the brain function caused by blood pressure in that the flow of blood to the brain is disturbed temporarily. He said that Dr Do's observations had included no change in blood pressure. He said that the attack would therefore be neurologically based rather than vascular. This could be linked to epilepsy. He went on to say that it would be unusual for somebody to experience epilepsy attacks only while standing up and not while seated. He said that the losses of consciousness could occur at any time in any posture including when a person is sitting in a chair. These attacks could last for just a few seconds or for a minute or two. He said that Dr Do's report of dilation of the pupils suggested that something was happening neurologically and that this was true also of the changes in muscle tone. However, he said that the overall picture was a very unusual presentation.

Mr Elliott proceeded to ascertain Dr Henke's views on Mr Haberfield's need for attendant care. Dr Henke considered that the carer would not be able to stop the drop attacks. He said that if it is accepted that Mr Haberfield has drop attacks then the carer cannot stop him falling unless the carer is literally by his side, within inches of him, about 24 hours a day, which is not possible. The presence of the carer does not really change the probability of potential injury. Dr Henke considered that the preferable approach would be to provide Mr Haberfield with an alarm system to enable him to seek help if injured in such a fall. There is an alarm system that a person carries with them and which allows them to press a button for assistance if they sustain injury.
Later, in re-examination, Mr Elliott put the following to Dr Henke:
"Now, if I can just go to the other issue of the level of care. Let us assume from moment that he does have drop attacks that occur about two or three times a week and the evidence is that these drop attacks only occur -- I think his evidence was that he didn't have experience of them occurring while he was seated -- and he spends, on his evidence, most of the time seated anyway, they are not a problem for him when he is lying down and his wife is present. Anyway, usually when they are they are together at night. In light of that level of symptomatology and the fact, as you have mentioned, that somebody can have an alarm, which is suggest that that person as a matter of routine have a 24-hour 7-day-a-week carer paid to watch over them, by their side?" (Transcript, 7.6.01, P Henke, P-46)
Dr Henke responded:
"As I indicated before, the management -- there's varying types of devices around which you can use. There is some which are -- the voluntary activating type which have been out probably 25 years now which are pressed. There are now also – there are electronic ones so if the person has a fall where there's acceleration you have an accelerometer in the device which actually catches out and shows and you can use that sort of device and that will trigger off a call to a monitoring person who will then -- phones the home and says, you know, 'Are you all right' and asks that question. Obviously that sort of device is the sort of device. So that device doesn't in a sense need to be activated, doesn't have to be activated by the person, it's activated by the fact that they have sudden movement and those devices are currently in usage here." (Transcript, 7.6.01, P Henke, P-46)
Dr Henke did not see the mere fact of the presence of Mrs Haberfield when Mr Haberfield is standing up as something that would routinely avoid the risk of any injury through a fall. Dr Henke said that as part of management of people with such a risk an occupational therapist would go through the house to look for ways in which to minimise risk of projecting items, sharp corners and the like. He said that the aim is to minimise the risk. The human carer, to be totally effective, would have to be virtually waiting and grabbing in anticipation to stop the person from falling. Dr Henke said that there is even some argument that you put the patient at risk of being injured if trying to hold the patient and that this is a frequent source of injury in hospitals and nursing homes where, for example, a nurse may suddenly try and grab somebody who is falling. Dr Henke said that a perfectly adequate form of care for a person having drop attacks two or three times a week when standing or moving about is to have the presence of a family member at times when he is moving about, shaving, bathing and similar sorts of things coupled with some sort of alarm system. Dr Henke thought this preferable as a form of management to having somebody present 24 hours a day. Dr Henke was of the view also that psychologically there are some concerns about requiring somebody to be in a patient's presence for 24 hours a day. That can have significant psychological disadvantages for the patient.
In response to a question from tribunal member, Dr Campbell, Dr Henke expressed doubts about providing attendant care services even for only six or seven hours a day when the drop attacks occur only once, twice or three times a week. Dr Henke was adamant that the need for attendant care services was incompatible with an ability to drive a car or ride a motor scooter. Dr Henke did accept that it would be appropriate for Mrs Haberfield to transport Mr Haberfield to the shopping mall and social events given that Mr Haberfield should not drive. Mr Elliott then suggested that it was usual for the average family to go shopping together and that it was not something requiring a paid carer. Such things were said to be done as part of and parcel of a married lifestyle. Dr Henke agreed.
Mr Elliott obtained from Dr Henke agreement with a number of propositions suggesting that, as anxious about his drop attacks as Mr Haberfield says he is, he would not be doing such things as driving on a weekly basis and he would be very cautious about what he does in his day-to-day life if that anxiety were genuine. Dr Henke agreed that the requisite degree of caution would not be exhibited by a person driving on a weekly basis.
In cross-examination Mr Henke agreed that Dr Do's observations were unlikely to have been faked. That is to say, it is difficult to fabricate changes in muscle tone or dilation of pupils. He agreed that the presence of such symptoms were suggestive that the drop attacks was genuine rather than fabricated. However, in re-examination, Dr Henke told Mr Elliott that the formation of conclusions from an observation of dilated pupils could depend on additional information such as whether the room was brightly lit at the time. He agreed that, to an extent, muscle tone could be fabricated in that people can let their limbs go limp. To this extent Dr Do's observations were not necessarily decisive of a genuine attack.
Mr Daley questioned Dr Henke about the desirability of immediate treatment being provided to Mr Haberfield in the event of an injury following a drop attack. Dr Henke thought it desirable for a person to be seen medically as soon as possible if injured. He did not agree that the part of the body most vulnerable would be the head. He saw lower limbs as the more usual source of injury in a fall. He did not think it likely that a delay in receiving treatment would be a matter of life or death.
Mr Daley raised with Dr Henke that question of Mr Haberfield possibly experiencing good days as compared to bad days. While Dr Henke agreed that epilepsy is a condition that can have symptoms that come and go with little warning, the other physical symptoms reported by Mr Haberfield are not so susceptible of variation from day-to-day. Dr Henke proceeded to say that in his experience people with brain injury are generally fairly consistent in their presentation. He said that they don't tend to be strange one day and normal next. To that extent he disagreed with one of the statements made by Dr Ell in a report.
Dr M Moore (psychiatrist)

Dr Moore examined the applicant and reported on 30 April 2001 that he had no significant psychiatric condition (ex R11). She said that he was able to distinguish fact from fiction. A "vicious circle" of interdependence had developed between Mr Haberfield and his wife. She wrote that the dynamic between Mr Haberfield and his wife seemed to be that he was quite dependent on her at home and she remained at home for that purpose. He certainly appeared to be more dependent on her when she was present than when she was absent. She concluded that she did not consider that Mr Haberfield had a psychiatric condition giving rise to the need for attendant care services. Any need for attendant care services would be related to the physical injury that he had sustained.
applicant's evidence
In his evidence in chief Mr Haberfield gave a chronology of his symptoms:

1966: This was when he had the MVA.
1967-1978: After five years he seemed to settle into experiencing good health. He was production manager and shareholder in companies where he worked doing shop fitting. On 6 October 1978 he struck his head on a metal edge of a bench when he had a grand mal seizure. He went to hospital and was in Dr Joffe's care. His wife left him. His driver's licence was suspended. He was off work for 12 months.
1979: He had a grand mal seizure in Campbelltown. He saw Dr Carey and entered a private hospital for observation. His health became stable if he took medication. He re-established a regular work pattern.
1986: He had a sudden collapse while on a tower job. He fell six times in a half-hour. His head was spinning. He went into hospital and then was under Dr Ell's care. He saw Dr Gibson about ear problems and had an operation.
1989: He ceased work on Dr Ell's advice. He had done little work since 1986. His balance and general stability had been a problem and he had had some "little blackouts".

The blackouts began in about 1988 and by 1999 had become quite frightening. He had told Dr Ell but "Dr Ell did not seem to want to know". When emerging from a blackout he could not walk, use his arms or talk. He described the two types of blackout identified above by Professor McLeod, Ms Liddle and Dr Henke but said that the syncope falls were only infrequent.
He had experienced blackouts two to four times a week in 1991-92, when he sought attendant care allowance. He was still having blackouts at the time of the first hearing day in February 2001.
When asked how much time Mrs Haberfield spent on assisting him with showering, shaving and grooming Mr Haberfield did not give a direct answer, instead saying that she had to be present all the time because he falls even when holding the safety rail.
He said that his walking frame is of little use if he has a fall. He uses the walking stick because it provides him with some stability.
Around the house Mrs Haberfield does cooking, gardening and things he would otherwise do. He used to assist with cooking, cleaning and the general care of the home but he could no longer do that. He cannot assist with cooking for fear of burning himself.
He said that he does not drive. He has a restricted licence. He drives only in an emergency. His wife does the driving.
Since 1989 Mr Haberfield's condition has deteriorated as his doctors warned him it would. He has had a generally slow decline in ability to function. He has consequently had to call on his wife for assistance more often.
In 1991 Mr Haberfield was granted attendant care allowance at a rate of $58.05 a week. This was too low, he said. He had spoken to a number of people in the Department of Defence and called attention to an apparent underpayment. He had originally thought the amount, while low, was correct. The letter advising him of the rate had not explained how it was calculated. He had first sought legal advice in 1996. That was when he first became aware that he had been incorrectly paid. His allowance was raised to $274 odd a week after an assessment was carried out at his house in November 1996.
Mr Elliott then cross-examined Mr Haberfield on behalf of the respondent. Mr Elliott sought to highlight some discrepancies in what he had told doctors. He told Mr Elliott that following the fall at work in 1986 he had done small amounts of work as a self-employed. He then worked for "Kaleidoscope" until 1989 for three days a week, seven hours a day. Mr Elliott suggested that he had not told Dr Ell he worked only part-time when he saw him in 1989 (see paragraph 35 above). [This may not be sustainable. Dr Ell simply recorded that he was working as a carpenter. He did not seem to pursue the matter.]
Mr Haberfield told Mr Elliott that his balance had slowly worsened since 1986 and was now significantly worse. If imbalance had rated 5 out of 10 as a disability in 1986-88 it rated 8.5 out of 10 in 2001. Mr Elliott indicated that Mr Haberfield told Dr Henke that his balance problems were relatively unchanged since 1986 (see paragraph 84 above).
The applicant told Mr Elliott that his third wife had a 12-months old child when he moved in with her in 1990. She had intended returning to work but stayed home to care for Mr Haberfield. Mr Elliott suggested that she did not return to work because that work had been for the father of her estranged husband.
Mr Elliott quizzed Mr Haberfield about his claim for attendant and household services. Mr Haberfield responded that Defence Department staff suggested these entitlements when he wrote asking about his compensation payments after he turned 65 years of age. [This is borne out by T54 – T56.] On 10 April 1991 Mr Haberfield wrote seeking assistance for cleaning, vacuuming, washing of dishes and clothes, shopping, cooking, gardening, etc (T57). He told Mr Elliott that at the time he was not paying anyone to perform these functions. Mr Elliott indicated T57 where Mr Haberfield represented that he was in fact paying for these services and that they cost $252. He said eventually that he had been told by Defence staff that he could be paid as much as $252, although earlier he had said that no one had mentioned a figure.
Mr Haberfield professed to be "shocked" when told that he qualified for only $58.05 a week attendant care. He thought a notice of rights was attached (T61, the letter notifying his entitlement, refers to an attached notice of rights). This would have indicated his appeal rights. He read the document in 1996 and understood that he had had 30 days in 1991 in which to seek a reconsideration. He thought he probably read it earlier too. He agreed that he did not appeal. However, he said he had made telephone calls to Defence and was told to keep quiet or he would lose the money he was receiving. He agreed he wrote no letters about the issue until 1996. He had thought he could rely on the department to give him correct advice. He agreed that he had not responded to a letter (T73) advising him of changed payment cycle arrangements. He had received a letter telling him of a review to be conducted concerning his assistance (T81). That had contained a notice of his rights. Mr Haberfield explained that he queried the rate of attendant care allowance after he bought a copy of the 1988 Act in 1996 or 1997. He saw that the rate of attendant care allowance should be higher than $58.05. However, he sought no reconsideration until 24 April 1997 (T97).
Messrs Elliott and Haberfield discussed Mr Haberfield's letter at T97. In it there was no reference to a reconsideration. Mr Haberfield agreed that it focused on ongoing entitlements, not arrears. Mr Elliott suggested that the first actual request for reconsideration was not until 1999 (T145). The tribunal considers these propositions to be dubious. Mr Haberfield's letter of 24 April 1997 sought information on how the rate of $58.05 had been derived. This, in the tribunal's view, was tantamount to seeking reconsideration. It is asking too much of an employee to use technical phraseology in order to pursue their statutory rights.
The ensuing oral evidence from Mr and Mrs Haberfield addressed various discrete issues. This evidence will be addressed through those issues. The first was Mr Haberfield's mobility outside the house. So far as shopping was concerned Mr Haberfield had told the therapists conducting a review of his assistance requirements in October 1996 that when he went shopping he was supported by a trolley. He was asked if he ever went shopping without a support agent. Mr Haberfield said that he did but he would hold onto his wife's shoulder in doing so. Mr Haberfield had also told the assessors that when outside the house he would walk against the front wall and lean against the house for stability. He said in cross-examination that, if he feels that his system will allow it, he may try to walk without support from one point to another, although this would seldom be outside the house.
In the letter dated 15 July 1997 (T102) Mr Haberfield described the assistance that he was receiving from his wife. He said, "some assistance has been given to me in the alteration of our bathroom and some railing to part of the outside of our home, paid for and installed by the Department of Housing, but this has only helped in a small way. My wife, Elizabeth, has to care for me from the time I wake up to the time I go to bed, seven days a week. Attendant Care is not 9 to 5 Monday to Friday with holidays provided; it is a full-time job. I asked for attendant care and household services in 1991 as advised then by my doctor, Dr J Byrne, and was accepted for attendant care service." Mr Haberfield said that he certainly wrote that letter and that it was accurate. He said that the situation described in the letter was generally still correct. He told the tribunal that his wife is always with him when he goes outside the house. However, he then said that he would go outside alone with his stick to the letterbox if he feels up to it. A Department of Defence file note recorded that Mr Haberfield advised that his wife never goes out without him because she cannot leave him home on his own for fear that he will fall over. However, Mr Haberfield agreed that he would very occasionally stay at home in the lounge room and read to his wife's son while his wife went out.
A rehabilitation assessment report dating from mid-1998 (T111) recorded that Mr Haberfield had a walking tolerance of 10 minutes maximum. Mr Haberfield agreed in the tribunal that he had said that and that was correct. He went so far as to sat he cannot walk at all if he is feeling unstable. If he is feeling stable he could now walk 10 minutes or slightly less as a maximum. He said that he had not tried to stand or walk outside the house without bracing himself against a third person. It was noted that this document also recorded that he had problems getting out of chairs.
Mr Elliott raised with Mr Haberfield histories taken by Drs Lorentz (T138) and Henke (ex R1) in which it was recorded that Mr Haberfield had a tendency when walking to veer from left to right. Mr Haberfield agreed that this was still the case except when he feels particularly stable.
Mrs Haberfield, in her oral evidence, said that she takes Mr Haberfield to see the doctor anything from twice a week to once a fortnight. She said that Mr Haberfield places his hand on her shoulder at all times when they are out of the house. She does not leave the applicant alone when they are out. However, she said that sometimes the applicant would take his hand off her shoulder for a while. She said that Mr Haberfield sometimes shops alone but that she will always be nearby. He might be inclined to go window-shopping. She said that she and Mr Haberfield could go shopping for up to three hours but that Mr Haberfield would not be on his feet during all of this time. They would rest and have lunch. She said that she and Mr Haberfield go out shopping for two or three hours once or twice a week. She was asked if Mr Haberfield would ever leave the house without her or without his walking stick. She said that she did not know but that maybe he would if his "body and brain allowed". She said that the applicant does not spend time doing things independently of her. She said that he tries at all times to be normal. She denied that the applicant was in fact independent for some considerable time each day, for example in his shed. Mrs Haberfield said that even when Mr Haberfield was in his shed she could still see him. She went on to say that Mr Haberfield does go to the shops in his motorised scooter alone about once a week. She says that she allows him to do this if it appears that he is feeling well. She then said that she might permit him to be out of her line of sight when he goes to a shop or if she goes into a shop for a few minutes alone when she might leave the applicant seated outside the shop, if a seat is available.

As Mr Elliott submitted, a large measure of accepting that the drop attacks are frequent and genuine involves accepting Mr Haberfield's own evidence. Mr Elliott pointed out how unreliable Mr Haberfield's evidence was:
"His initial evidence was that when he goes out he needs to put his arm on [Mrs Haberfield's] right shoulder, at page 24 in lines 9 to 11. He does not drive, page 26, line 37. He does not go out except with his wife, page 64, would not go into the community alone, at page 61, 13 to 14. Has not tried to walk for more than 5 minutes without his wife by his side, page 64, lines 16 to 20. Has not been in a situation where I need to go around pedestrians, page 67, words 46. Would often drive with wife as a passenger, page 69, line 5. He does not bend down to get things off shelves below eye height, page 61, lines 29 to 31.
"Does not use the scooter by himself, page 70, line 24. Does not get bins in by himself, page 71. Could not stand to try on clothes, page 71. All of those answers were false and we know that because we saw him doing all of the things contrary to that in the video. Mr Daley has said that the video showed him never far away from his wife. Well, that is just simply not true. There were occasions shown in the video when he is driving a vehicle by himself. He is also shown going out to the shops by himself on his scooter. So the video shows him with a far greater degree of independence that he was willing to admit.
"It does not show him in constant fear of falling over because he's doing things by himself and his evidence, we would submit, is just plainly contrary to what he initially set out to be his situation. There are also other examples of untruths too, such as he was telling people that he was an SAS commander in Vietnam. That was told to Dr Tam, the 1988 Actual treating doctor. We would submit that that he is clearly self asserting and just plain straight out lying that there's been no satisfactory explanation provided other than seeking to gain sympathy from others.
"The video in 1994 also shows him going to England for some 6 weeks, supposedly he had appealed and he said this between 1991 to date he has been affected by his so called drop attacks on a regular basis and the need to have his wife around yet he is away in England in fact as a carer for another person for some six weeks over there. Ms Bristow who was over there with him said that during the time he was away he underwent the realm of things, the normal sorts activities people do as a tourist, go around visiting sites and buildings, walking around the countryside and the entire time he was there, she was not aware of him having any problems with drop attacks, never witnessed these at all.
"Now, to a large extent, we would submit that that observation is clearly corroborated by what is shown on the video. He's not shown walking around with his walking stick during that period and we've not been hiding anything by not showing the full 3 hours of videotape. If the Tribunal wishes to have that, the full 3 hours, we can show the full 3 hours but the portion that was shown, we submit, clearly shows him going about his tasks in England without any effect whatsoever. The photos will show [him] at the airport without a walking stick. There's evidence from Mrs Bristow in carrying bags and so forth while he is over there.
…
"… it was suggested by him that he could not remember … details yet there's an abundance of evidence, 287, T112, and Dr Moore's, the psychiatrists reports showing that in terms of his memory functions that is not greatly affected by his condition and certainly his longer term memory is not greatly affected by his condition. The memory problem also does not explain why he would be telling people he was a member of the SAS in Vietnam either. Now, he also gave an explanation that there were good days and bad days. We would submit that if there are good days, it is an amazing coincidence that the video is seen to show him doing all of these functions on the days that were under observation.
"Also the video of him on holidays and the fact that he was away for 6 weeks suggests that during that period which was a period during which he said his condition was still affecting him, he was able to go away for 6 weeks and it does not show that he was having bad days during that period either. Finally on that, on the issue of good days and bad days, we would, according to the evidence of Dr Henke, which was to the effect that people with marked neurologist conditions generally did not have the fluctuating level of presentation that Mr Daley suggested people such as those with back injuries may." (Transcript, 13.6.01, P-23 – 25)

The tribunal sees considerable force in Mr Elliott's submissions. While the tribunal does not accept that the drop attacks are fabricated, it finds from the evidence summarised above that they occur relatively infrequently outside the house. The tribunal gives priority to Mrs Haberfield's evidence on this point. She is in the best position to know the true situation. Her interest would also not have been to minimise the attacks.
Further, the tribunal notes the evidence of a number of witnesses that the drop attacks occur overwhelmingly when Mr Haberfield is standing. Mr Elliott was on firm ground in submitting that much of Mr Haberfield's day is spent lying down or seated, thus (apparently) minimising not only the likelihood of an attack, but minimising the chances of any harm stemming from an attack.
Is essential and regular personal care required?

The tribunal notes the evidence of Dr Henke that it may be counter-productive to provide a full-time carer who would be expected to assist by catching Mr Haberfield when he has a drop attack. He credibly indicated the risks involved in such an endeavour, risks to both parties. Moreover, it would seem to the tribunal, from seeing both Mr and Mrs Haberfield, that her physique, compared to Mr Haberfield's, is such that she could provide little support for him if he did fall in her presence. More to the point, perhaps, was the suggestion that Mrs Haberfield should be present to call for aid when Mr Haberfield does have a fall that causes him injury. However, the proposition that Mrs Haberfield should attract an allowance to permit her to be present on this basis for 24 hours a day is problematic. There would appear considerable merit in Dr Henke's suggestion that it would be preferable to provide an around the clock personal alarm system, especially one that activates automatically in the event of a precipitate fall.
The tribunal therefore considers it difficult to find that personal care of an essential and regular type is required by Mr Haberfield and so finds that it is not.
Care expected from relatives

The tribunal finds that the care provided for Mr Haberfield, that he reasonably requires, is limited to that involving assistance with showering, shaving and dressing. These would appear to occupy only an hour or so of Mrs Haberfield's time each day. As was found above, these are attendant care services within the meaning of the 1988 Act. However, they are so little out of the ordinary course of physical assistance to be expected from one spouse in aid of the other that they do not, in the tribunal's view, attract an attendant care allowance. The scale of assistance provided by Mrs Haberfield that is reasonably required by reference to Mr Haberfield's compensable injuries is nowhere near that provided by Mrs Torney in the Torney case (above).
mr daley's submissions
The tribunal has had a great deal to say about Mr Elliott's submissions, in large part because they provide a useful framework for consideration of the issues. However, the tribunal also noted Mr Daley's submissions and wishes to comment on them.
Mr Daley was in agreement with Mr Elliott in identifying that the main part of Mr Haberfield's claim relates to the alleged need for Mrs Haberfield to be present on an almost full-time basis in case of a drop attack. She would be there to provide first aid and emotional support. The tribunal has already dealt with this argument.
Mr Daley referred also to the need to have someone drive Mr Haberfield to the shopping mall and elsewhere. The tribunal has already found that this is not attendant care services within the meaning of the term in the 1988 Act.
Mr Daley referred to the need to have a person ensure that Mr Haberfield takes his medications. The tribunal notes that this was not mentioned in general by medical experts as a requirement and there was a mention in exhibit R1 of this problem being resolved by use of a certain type of pill box.
Mr Daley submitted that the required amount of care was not a matter solely within the province of doctors. The tribunal accepts that this is accurate. However, as the attendant care services must be justified by, and be a function of, the employee's compensable injury, the views of a medical expert are of relevance. As Mr Daley said, different doctors have seen different amounts of attendant care as justified, but it is a matter for the tribunal to determine what is reasonable. The tribunal is, of course, in a better position than most doctors to do this if only because it is in possession of more of the relevant medical and lay material.
Mr Daley suggested that when Mr Haberfield first ceased work his falls were associated with dizziness. In more recent times they have been related to epilepsy and drop attacks. He said that they seem to have been more prominent since 1996. Mr Daley referred to the "assessment for household and attendant care services" carried out by the Commonwealth Rehabilitation Service on 28 October 1996 (T82) which resulted in Mr Haberfield's attendant care allowance being increased to 100% (T84). Mr Daley stressed that this assessment was by an agency selected by the respondent and not paid by the applicant. That assessment resulted in the following recommendations:

Home modifications affecting the bathroom, toilet and external access, largely in the form of safety rails.
Further investigation into mobility aids to be organised.
"An increase in attendant care allowance for Mrs Haberfield, as she is not able to leave Mr Haberfield alone due to the fear that he may fall. One hundred percent attendant care to be reviewed post psychological counselling" (T82/110).
Two hours respite care weekly for Mrs Haberfield.
An increase in household services support.
Neuropsychological assessment and psychological treatment in respect of stress and family therapy.
Investigation of leisure and exercise options for Mr Haberfield.

Mr Daley referred to this assessment to indicate that it was only when a delegate in 1999 intervened that the positive outcomes from this assessment were disturbed. The tribunal takes this opportunity to make several observations about this. First, in July 1997 a decision was taken to reduce household and attendant care services allowances by 30% in recognition of the contribution of Mrs Haberfield as a relative to Mr Haberfield's care (T101). This decision was revoked on 23 September 1997 (T107) and replaced by a decision awarding the 100% rate for attendant care and nil for all household services provided by Mrs Haberfield and the children. Thus it may be said that it was not entirely plain sailing for Mr and Mrs Haberfield between 1996 and 1999. Second, the occupational therapist who conducted the assessment in October 1996 did not have access to certain of the evidence this tribunal has seen and to Professor McLeod's observations in paragraph 63 above, which were the primary reason for the delegate deciding to cancel the attendant care allowance. In the tribunal's view, while the views of an occupational therapist are worthy of consideration, there is an absolutely central role for medical assessment in relation to the drop attacks. To that the tribunal would now add that the views of Dr Henke are of particular value as he has seen the videotape evidence in addition to medically examining Mr Haberfield.
Mr Daley relied on the views of various doctors:

Dr Lorentz (T147) had seen attendant care services as required from 8.00 am to 6.00 pm, the family attending beyond those hours.
Dr Tam (ex A1) considered that Mr Haberfield was dependent in his activities of daily living and needed substantial personal care. However, the tribunal notes, Dr Tam did not in his report provide any detail of this care and the daily period during which it was required. In oral evidence, however, Dr Tam effectively insisted that Mr Haberfield would require 24-hour, seven days a week care. However, as noted earlier, the tribunal had difficulty with aspects of Dr Tam's evidence.
Dr Joffe (T141) certified Mr Haberfield as 100% impaired on 6 July 1999.

In view of these assessments Mr Daley submitted that the delegate had no reason to redetermine the applicant's entitlement in 1999 and further submitted that attendant care allowance was payable at 100%.

Mr Daley referred to several authorities in addition to those cited by Mr Elliott. The first was Re O'Connor and Australian and Overseas Telecommunications Corporation (AAT 8692, 7 May 1993). This was decided by a tribunal composed of members including Senior Member Balmford, and the tribunal followed the decision in the VXJ case (above).
Mr Daley then referred to Re Hopgood and Comcare (AAT 13229, 28 August 1998) in which the tribunal elected to follow Torney (above) and pay an attendant care allowance to the employee's wife even though the employee was not paying her for her services. The tribunal said in paragraph 48 that, "[h]aving considered ss 29(4)(f) the Tribunal [was] satisfied that the attendant care services set out in the report of Ms Crouch [were] required beyond what a relative of the employee might reasonably be expected to provide" [this tribunal's emphasis].
In this regard Mr Daley said:
"Once the Tribunal accepts and the probabilities of the drop attacks, then pretty much everything that I started these submissions follows. He needs supervision, he needs it regularly, he needs somebody to help him following the attacks for both emotional reasons and for reasons of first aid, immediate first aid, he needs someone to help him drive, he needs emotional support, he needs company, he needs social and recreational services which again, even Dr Henke was prepared to concede were probably needed in this case.
"While some of those things would normally be done by wife or a spouse any event, it is clear that the applicant's wife has had to work above and beyond the call of duty, taking this case outside section 29(4)(f) she has had to get up, returning to work after the birth of the second child and it is cruel that she, on the evidence, lives a rather long-suffering life in terms of the amount of care that she has to provide for Mr Haberfield. She is unable to go out. When she does go out and taking shopping, I dare say it takes a lot longer than it would normally take if she were able to go alone and for those reasons, whilst there is no doubt to some extent, there should be discount for what a loving spouse would otherwise provide." (Transcript, 13.6.01, P-13)
The force of these submissions is undermined by several factors:

The tribunal doubts that intangible assistance in the form of emotional support and company are "attendant care services" under the 1988 Act.
The need for and utility of these services is doubtful for reasons given by Dr Henke and accepted by the tribunal (see paragraph 223 above).
Much of the assistance provided by Mrs Haberfield is, as the tribunal has found, much as would be expected from any spouse (see paragraph 225 above).

Mr Daley commended the approach in Torney (above) to the tribunal and submitted that the general trend in common law was to compensate for care. Mr Daley cited several authorities in support of this proposition but the tribunal will not refer to them at this time because they are of limited relevance to a statutory scheme such as we are dealing with here and because the tribunal, in any event, has decided that Torney (above) is the preferred authority (see paragraphs 208-209 above).
Mr Daley addressed the video evidence and submitted that it was irrelevant in respect of the drop attacks. The tribunal considers that even Mr Elliott would agree with that to the extent that no drop attacks are shown in the video. Mr Elliott would, however, submit that it was inconsistent for Mr Haberfield to be out and about in such an unaided situation if he were genuinely fearful of a drop attack. Mr Daley suggested that the video showed "a seriously disabled man". He said that for much of the video Mr Haberfield had a walking stick and "[f]or large parts of the video he had to lean on his wife for support", that generally he had to move slowly and that his wife "was always nearby, maybe not immediately adjacent to him but never too far away". Mr Haberfield also demonstrated an awkward gait in the video. Mr Daley cited Drs Tam and Henke for that last proposition but the transcript (7.6.01, Dr Henke, P-48) indicated that Dr Henke did not endorse that view.
The tribunal has considered these submissions and has difficulty accepting a good part of them on the basis of its viewing of the surveillance video. The tribunal observed that Mr Haberfield may have carried a walking stick but he did not make a great deal of use of it. The tribunal did not see Mr Haberfield leaning on Mrs Haberfield for support during large parts of the video. The tribunal did not perceive Mrs Haberfield as being always nearby during the shopping expedition or when Mr Haberfield went out on his scooter. He seemed to the tribunal to be able to spend lengthy periods without need of any physical support. As noted above, opinions differed as to whether Mr Haberfield demonstrated an awkward gait in the video.
Mr Daley submitted that inconsistencies between Mr Haberfield's evidence and what was in the video evidence are explained by Mr Haberfield's good and bad days and by Dr Tam's autopilot theory. He also referred to evidence from Dr Henke that exaggeration of symptoms by a patient can be a result of the patient's enthusiasm to get his or her point across to the doctor. It is not part of an intention to deceive.
The tribunal was impressed by Dr Henke's evidence that patients with Mr Haberfield's disability do not tend to have variable symptoms from day to day. The tribunal also considers it unlikely that the applicant would experience "good days" on the very days when the taping occurred. The tribunal has already expressed its difficulties in adopting Dr Tam's assessment.
As regards the 1994 video evidence, Mr Daley submitted that the extracts shown were highly selective and that Mr Haberfield's condition had deteriorated since that time. The tribunal has given considerably greater weight in its deliberations to the surveillance video.
Mr Daley made extended submissions on the genuine nature of the drop attacks. It is unnecessary to examine these, however, because the tribunal has accepted (paragraphs 220-222 above) that the drop attacks are genuine, if less prevalent than Mr Haberfield suggested.
Mr Daley addressed Dr Henke's suggestion that an alarm system would suffice to provide the assistance required by Mr Haberfield. He submitted that the suggestion should be disregarded for several reasons. It emerged without warning as a suggestion at the close of the respondent's case. It had never been part of any offer of assistance by the respondent. It had never been put to Mr Haberfield as an option. It has not been recommended by anyone following an on-site assessment of Mr Haberfield's requirements.
The tribunal considers that the alarm option came as something of a surprise to the respondent, as it did to the applicant's representatives, when Dr Henke suggested it. The tribunal saw Dr Henke's evidence as well considered and thoughtful when he suggested that an alarm system might best assist the applicant with his genuine disability. The tribunal considers that the respondent should give serious consideration to offering such a facility to Mr Haberfield in accordance with s 39(1)(e) of the 1988 Act.
conclusion in relation to N1999/1938

The tribunal has found that the applicant does not qualify for payment of attendant care allowance in relation to the assistance provided by Mrs Haberfield.
conclusion in relation to N2000/1501
The tribunal has decided that it should not extend the time within which Mr Haberfield could request reconsideration of the decision taken in 1991 to pay attendant care allowance at a rate of only $58.05 a week.
In considering whether to grant an extension of time the tribunal applies the principles in the Federal Court decision, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are a number of criteria that arise from that decision. These are most notably:

(a)The applicant should provide a reasonable explanation for the delay.

(b)The applicant should have taken action other than this application to make the decision-maker aware that he or she contests the finality of the decision.

(c)The respondent should not be unduly prejudiced if the time is extended.

(d)The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.

The tribunal would find in Mr Haberfield's favour in respect of all of these criteria were it not for the fact that the tribunal has already found that the merits of his claim for attendant care allowance are fundamentally weak.
In the tribunal's view there was too little information given to Mr Haberfield to allow him to appreciate how the $58.05 rate was derived. For several years he had no reason to know that he was receiving anything less than the appropriate rate. It is noteworthy that respondent's staff considering the issue (T98, T108) had difficulty explaining what the original decision-maker had done in setting a rate. Once Mr Haberfield understood that he might have been eligible for higher payments he began to agitate and did so fairly constantly from 24 April 1997 (T97). In short, the tribunal considers that Mr Haberfield had an acceptable explanation for his delay and that he agitated the matter with the respondent promptly and consistently once he became aware of the situation.
The tribunal was not convinced by Mr Ontong's evidence as to prejudice to the Commonwealth if an extension of time were granted. The essence of Mr Ontong's evidence in response to Mr Daley's questioning was that the respondent's administration was in some slight disarray between 1991 and 1996 and was not inquiring closely into medical and other matters when granting and administering attendant care allowance in that period. The tribunal considers it unlikely that the respondent has lost much, if any, of the opportunities it would have had with earlier notice of Mr Haberfield's inquiries.
As stated earlier, it is because the applicant is not at all likely to succeed in any reconsideration that the tribunal has decided not to require the respondent to conduct a reconsideration in response to a request made a number of years too late.
DECISIONS
The tribunal affirms the decisions under review. The applicant is entitled to no costs in respect of either application.
I certify that the 254 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  15, 16 February 2001, 7 and 13 June 2001.
Date of Decision  12 July 2002
Counsel for the Applicant        Mr Mark Daley
Solicitor for the Applicant         Brydens
Counsel for the Respondent    Mr Grant Elliott
Solicitor for the Respondent    Australian Government Solicitor

[2002] AATA 577

12 July 2002

Key Legal Topics

Areas of Law

Workers' Compensation

Legal Concepts

Attendant Care

Compensation for Household Services

Reconsideration of Determinations

Eligibility for Attendant Care Allowance

Implied Terms

Rehabilitation