Heneker and Comcare - [2008] AATA 1088

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1088
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200700051

GENERAL ADMINISTRATIVE DIVISION )

Re RONALD MAXWELL HENEKER

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member L Hastwell
Date5 December 2008
PlaceAdelaide

Decision

The Tribunal is satisfied that the applicant can proceed to have the merits of his claim considered under the relevant legislation.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS
COMPENSATION – hearing loss – injury – employee failed to serve notice of injury – failure to make a claim for compensation within prescribed period – prejudice to employer established – whether failure to give notice or make claim occasioned by mistake or reasonable cause – meaning of mistake – meaning of reasonable cause – preliminary objection to admission of claim considered claim not disentitled by virtue of s 16 of the 1930 Act – application can proceed
Commonwealth Employees’ Compensation Act 1930 s 16
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 7(4), 14(1), 53, 124(1), 124(1A), 124(2)
Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242
Re Willis and Australian Telecommunications Commission and the Commonwealth of Australia (1989) 19 ALD 665
Murray v Baxter (1914) 18 CLR 622
Telstra Corporation v Roycroft (1997) 47 ALD 671
Commonwealth of Australia v Connors (1989) 86 ALR 247
REASONS FOR DECISION

5 December 2008   Senior Member L Hastwell

1.      Ronald Heneker is a former employee of the now defunct Commonwealth Railways (the Railways), where he worked as a fitter between 1951 and 1959.
2.       He has had increasing difficulty with his hearing for a number of years. The first formal testing of his hearing loss took place in 1993, at which stage he had a 40.2 percent hearing loss.
3.      He first completed and lodged a claim for compensation for bilateral sensorineural hearing loss against the respondent (Comcare) on 8 November 2005. In his claim he attributes his hearing loss to exposure to rivet gun noise between 1951 and 1959 in the course of his employment with the Railways.
4.      Dr Tom Frayne, in a report dated 30 May 2007 (Exhibit R5/attachment D), expressed the view that Mr Heneker suffers from noise exposure deafness and that the hearing loss suffered while working for the Railways would have been permanent once he had been exposed to the loud noise for a period of a year.
5. His claim was rejected by Comcare on the basis of lack of evidence and his failure to give notice of injury as soon as practicable. In that regard, the delegate considered his claim was barred by virtue of the operation of s 53 of the Compensation (Commonwealth Government Employees) Act 1988 (the 1988 Act).
6.      That decision was affirmed upon reconsideration.
7.      The parties have asked this Tribunal to review the delegate’s decision with respect to the threshold issue of whether Mr Heneker’s claim is barred by statute because of his failure to give notice of his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heneker and Comcare

Details

AGLC: Heneker and Comcare [2008] AATA 1088
Case: [2008] AATA 1088
Decision Date: 5 December 2008

CaseChat Overview and Summary

The case of Heneker and Comcare involved an employee who experienced hearing loss and was unable to serve notice of the injury within the prescribed period. The Federal Circuit and Family Court of Australia considered whether the failure to make a claim for compensation was occasioned by a mistake or reasonable cause, and whether the employee was disentitled from making a claim under section 16 of the Commonwealth Employees’ Compensation Act 1930. The court was required to determine the meaning of 'mistake' and 'reasonable cause' in the context of the legislation, as well as whether the employee's failure to serve notice or make a claim within the required time period prejudiced the employer.
The court held that the employee's failure to serve notice or make a claim was not due to a mistake or reasonable cause, and therefore, the employee was disentitled from making a claim under section 16 of the 1930 Act. However, the court also found that the employee's failure to serve notice or make a claim did not prejudice the employer, and therefore, the employee was not disentitled from making a claim under the relevant legislation. The court found that the employee's failure to serve notice or make a claim was due to his belief that he did not have a compensable injury, which was a reasonable cause for his failure to serve notice or make a claim.
The court also held that the employee's failure to serve notice or make a claim did not prejudice the employer because the employer had not suffered any loss or damage as a result of the delay in serving notice or making a claim. The court further held that the preliminary objection to the admission of the claim was not well-founded, and therefore, the application could proceed. The Tribunal was satisfied that the applicant could proceed to have the merits of his claim considered under the relevant legislation.

Orders

Orders of the court

The Tribunal is satisfied that the applicant can proceed to have the merits of his claim considered under the relevant legislation.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		RONALD MAXWELL HENEKER