Heneker and Comcare
[2008] AATA 1088
•5 December 2008
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 247REASONS 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 injury within a certain amount of time and lodge his claim within the prescribed time.
relevant legislation
8. The claim was lodged after the 1988 Act came into effect on 1 December 1988.
9. Section 14(1) of the 1988 Act provides:
“14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
10. The word “injury” was defined in s 4(1) of the 1988 Act at the time that the claim was lodged in the following terms:
“(1) In this Act, unless the contrary intention appears:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
…”
The word “impairment” was defined in s 4(1) of the 1988 Act at the time that the claim was lodged in the following terms:
“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
The word “disease” was defined in s 4(1) of the 1988 Act at the time that the claim was lodged in the following terms:
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
11. Section 7(4) of the 1988 Act makes provision for the day when an employee is taken to have suffered a disease, or an aggravation of a disease, as follows:
“7 Provisions relating to diseases
…
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
12. Section 124(1) provides that the 1988 Act applies to an injury, loss or damage suffered by an employee whether before or after the commencing day.
13. Sections 124(1A) and 124(2) of the 1988 Act provide as follows:
“124 Application of Act to pre-existing injuries
…
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.”
.
14. Section 124 provides that a person is entitled to compensation under the 1988 Act if they would have had an entitlement under the relevant legislation at the date that the injury occurred.
15. In this case it is important to determine whether the hearing loss is a disease or an injury to ascertain the date when it first occurred.
is the hearing loss an injury or a disease?
16. Counsel for both parties treated the hearing loss as an injury rather than a disease. Whether the hearing loss is an injury or a disease is relevant as if it is an injury, it falls to be considered under the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act) and if it is a disease then the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) is the legislation to apply in determining the threshold issue. It is common ground that it appears likely that Mr Heneker did not seek treatment for his hearing loss or suffer any incapacity from that loss until after the 1971 Act came into effect.
17. The Tribunal is satisfied that it is correct to characterise the hearing loss as an injury in this case.
18. In the case of Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242, the applicant sustained hearing loss as a result of exposure to military noise over a period of some years.
19. There was a useful discussion in that case with respect to the characterisation of hearing loss. Deputy President Jarvis referred to a number of cases and noted that, in some cases, hearing loss has been characterised as an injury and in other cases as a disease. He expressed the view that the appropriate characterisation of the cause of hearing loss was generally apparent from the facts of each particular case. The noise induced hearing loss in the case of Re Tralongo was held to be an injury on the basis that a series of discrete episodes, ie repetitive noises, finally led to irreversible damage. The facts of this case are similar in that it is alleged that exposure to ongoing repetitive noise from a rivet gun led to irreversible damage to Mr Heneker’s hearing.
20. In this case, Dr Frayne, an ear nose and throat surgeon (Exhibit R5/attachment D) expressed the opinion that Mr Heneker had suffered noise exposure, deafness and that some of it was as a result of working with the Railways in the 1950s. He said that the hearing loss that Mr Heneker suffered in his employment became permanent once he had been exposed to the loud noise for a period of a year or so after commencing with the Railways. This would put him with some degree of permanent hearing loss in the early 1950s that would have deteriorated further with the ongoing exposure to noise until the exposure to the loud noise ceased when he left the Railways in 1959.
21. Comcare submitted at the hearing that the relevant Act to apply when considering the threshold question was the 1930 Act. The applicant did not dispute that the 1930 Act was the correct legislation to apply. On the basis of the hearing loss being an injury, then the 1930 Act is the relevant legislation to apply to determine the threshold issue before this Tribunal.
22. Section 16 of the 1930 Act provides as follows:
“16(1)The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –
(a) within six months from the occurrence of the accident; or
(b)in case of death – within six months after advice of the death has been received by the claimant:
Provided always that –
(i)the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.”
issues for consideration by the tribunal
23. It is common ground that Mr Heneker did not serve notice of any accident or injury on the Commissioner of Employees Compensation or make a claim until 2005 and that he left his employment with the Railways first in 1959 and had a subsequent period of employment with the Railways which ended in the early 1980s.
24. The Tribunal must consider the ameliorating provisions contained in s 16(1)(i) and (ii) of the 1930 Act and address the following issues:
·is Comcare prejudiced by the want, defect or inaccuracy in the notice;
·was the want, defect or inaccuracy in the notice occasioned by mistake, absence from Australia or other reasonable cause; and
·was the failure to make a claim within the period specified occasioned by mistake, absence from Australia or other reasonable cause?
mr heneker’s explanation for failing to give notice to the commonwealth or make a claim within the prescribed time
25. Mr Heneker gave oral evidence at the hearing and also provided a statement dated 10 June 2008 which was received as Exhibit A1.
26. A number of other exhibits were received into evidence, as were the documents filed by Comcare under s 37 of the Administrative Appeals Tribunal Act 1975.
27. Mr Heneker is now 72 years of age and he had difficulty remembering events over a period of many years.
28. He said that prior to failing a hearing test which he thought (incorrectly) was in 1975, he was aware that he had a hearing loss and that it was “after the Railways” that he knew of the loss. He then somewhat complicated his evidence by referring to a boiler explosion, that may have also had an adverse affect on his hearing, which occurred in a subsequent period of employment with the Railways. He recalled that the boiler explosion occurred in 1980.
29. He told the Tribunal that he was exposed to loud noise and, in particular, excessive noise from rivet guns, hammers, grinders, saws, motors and overhead cranes during the course of his employment with the Railways between 1951 and 1959.
30. He did not wear hearing protection and the use of protective clothing or equipment was not encouraged, nor was such equipment provided.
31. He claimed that his exposure to occupational noise during this period was the most significant noise exposure that he experienced in any employment in his working life.
32. The sequence of his other jobs since leaving his employment with the Railways in 1959 was set out in his statement (Exhibit A1) at paragraphs 6 to 10. When giving evidence, he remembered also working for Australian National Railways (ANR) for a brief period in 1979 and 1980 as a laundry maintenance fitter.
33. He was self-employed running a garden centre from 1989 until his eventual retirement in 1998.
34. Independent evidence from the employment records of ANR (Exhibit A2) showed that Mr Heneker was employed from 1951 until he resigned in May 1959. He then recommenced working for them as a fitter and, contrary to his oral evidence, he worked there continuously from November 1975 until he resigned in May 1980.
35. He was initially adamant that there was no significant noise exposure in any of his other jobs, but then in the course of his evidence, he recalled being exposed to “a massive explosion” when a gas boiler exploded near to where he was working as a laundry maintenance fitter for ANR in 1980. He had not previously mentioned, or even remembered, this incident when preparing his written statement of evidence and he had not mentioned this incident to Dr Frayne, the medical specialist who had provided a report, or to his solicitor.
36. He could recall failing a hearing test when first applying for the job at Transfield Services which he thought may have been in 1975. The nurse told him at the time that it was because of hearing loss. These dates cannot be confirmed as employment records were no longer available.
37. He said that he knew of the hearing loss “after the Railways”, but that he was under the impression that once you left your employment you could not make a claim, so he did not pursue a claim for hearing loss at the time. Many of his colleagues were compensated for hearing loss as a result of working in the same conditions that he was exposed to.
38. Between 1989 and 1998 he worked in his own landscaping business with his son. This did not involve working in a noisy environment. At some stage in the 1980s, he made a claim for asbestosis, and at some stage before he retired from his business, his son died from a melanoma.
39. In his statement, he claimed to have first sought treatment for hearing loss in 2004, but when it was put to him in evidence that documents were in existence (Exhibit R2/380) which indicated that he was referred for assessment of hearing loss by his general practitioner in 1993, he acknowledged that must be correct. That first test showed a hearing loss of 40.2 percent at the time.
40. His reason for not giving notice of his injury until 2005 was that he thought that he could not make a claim as he no longer worked for the Railways. He also had many other things to worry about in the intervening years. He lost his brother to an asbestos related disease, he lost his son to melanoma, and he was involved in lengthy litigation with respect to his own claim for an asbestos related disease. He had lived with his deafness for many years.
41. Implicit in his evidence was the suggestion that he had left the Railways before he realised that he may have a hearing loss associated with that period of employment.
42. While involved in the asbestos claim in 2004, Mr Heneker had such difficulty dealing with giving his evidence because of his poor hearing that he “finally decided” to do something about his hearing loss and he sought treatment in February 2004. A test performed in August 2005 showed a percentage hearing loss of 82.8 percent. His claim was then lodged in November 2005.
other relevant evidence
43. Mr Heneker also relied on statements of Brian James King dated 6 June 2008 (Exhibit A3) and Brian Owen Barnes dated 6 June 2008 (Exhibit A4) who had both worked with him in the Railways workshop during the 1950s. They each confirmed that the working environment in the workshop was excessively noisy, and that hearing loss was common among the workers.
44. A report of Professor Bruce Black dated 11 October 1996 was tendered to the Tribunal (Exhibit R3). In that report, which was not specific to this particular case, he made some general comments about hearing loss. He said that once a person is removed from the source of noise, further hearing damage should not occur.
45. He commented that ongoing hearing loss, once a person is removed from the source of noise, can occur due to other reasons such as age, exposure to other factors such as drugs, or a range of systemic diseases.
46. In a second report dated 22 November 1996 (Exhibit R4) he elaborated and commented as follows:
“… Once the individual is removed from the noise, the damage (ie. hearing loss) ceases and further deterioration does not occur unless the individual is exposed to further severe prolonged noise or blast effects. …”
prejudice to the commonwealth?
47. A statement of Bruno Borci of Comcare dated 10 June 2008 was received into evidence as Exhibit R5. His statement addresses the issue of prejudice to Comcare. In summary, he raised the following relevant matters:
·He has been unable to locate contemporaneous records of Mr Heneker’s work history with the Railways or with the other employers he has described because of lapse of time.
·Comcare had subpoenaed the employment records of Transfield Services and its successor John Holland Construction Pty Ltd. No records were available due to passage of time and changes to organisational structure.
·All other employers contacted advised that due to the lapse of time they do not hold any relevant records of Mr Heneker's employment.
·Comcare has been deprived of the opportunity to have Mr Heneker medically examined during the intervening period to ascertain the status of the claimed condition and the possible contribution of other employment to that condition.
·Mr Heneker’s hearing loss has continued to deteriorate since the first test in 1993 and, based on the generally accepted position that damage from noise induced hearing loss ceases when exposure to noise ceases, then it suggests that the applicant has been exposed to other substantial noise levels in other settings or that there is a different reason altogether for his hearing loss.
·Comcare has not been able to properly investigate the alleged circumstances of the injury given the lapse of time since it occurred.
48. Audiograms were produced with respect to Mr Heneker for 1993, 1997, 1999 and 2005 (Exhibit R2/ST1, 2 and 3).
49. Dr Frayne summarised the results of those audiograms in a report (Exhibit R5/attachment F). Mr Heneker's percentage hearing loss was as follows:
·16 August 2005 - 82.8%
·24 September 1999 - 58.1%
·12 June 1997 - 57.8%
·29 September 1993 - 40.2%
findings of fact
50. The Tribunal makes the following findings that are necessary to determine the preliminary issue.
·Mr Heneker first became specifically aware that he was suffering a reasonable degree of hearing loss at some stage after he had ceased his employment with the Railways in 1959.
·If Mr Heneker had some awareness of reduced hearing during his period of employment with the Railways in the 1950s, it was a minor issue to him and it is probable that he did not appreciate the significance of the loss at the time and the fact that it may be permanent.
·It is likely that his attention was first focused on his hearing loss as being permanent and causing some incapacity when his hearing was tested in the context of applying for a job with Transfied Services some years after working for the Railways in the 1950s.
·By the time he had any awareness of the possibility that his permanent hearing loss was related to the particular period of employment with the Railways, he held the belief that he could not bring a claim for hearing loss as he had left his employment.
·He is aware of other employees who were compensated for loss of hearing as a result of their work in the Railways at the same time as him, but it was not until his hearing loss had become quite pronounced and many years later that he sought treatment.
·The delay in giving notice of injury and the delay in lodging the claim have prejudiced both parties’ prospects of dealing reasonably with his claim.
the parties’ contentions
51. Counsel for Mr Heneker asked the Tribunal to accept that the applicant has given an explanation for failing to give notice of injury or lodge his claim until 2005. He was mistaken with respect to his right to bring a claim once he had left his employment and further, it was not until 2004 when the full extent of his hearing loss became evident to him that he considered it was time to make a claim.
52. For many years, Mr Heneker was effectively distracted by the other aspects of his life, including his pursuit of a claim resulting from exposure to asbestos and the loss of his son.
53. Counsel for Mr Heneker acknowledges prejudice to Comcare, but argues that the prejudice is the same now as it would have been 20 years ago in that it is not possible to go back to a workshop in the 1950s to establish the noise level and that the best evidence is the testimony of those who worked in the workshop, combined with Mr Heneker's evidence. That testimony is still available.
54. Comcare argues that the prejudice to them in responding to this claim is so great that the claim should not be allowed to proceed.
55. Counsel for Comcare propounded an interpretation of the 1930 Act that would exclude any consideration of mistake or reasonable cause if the Tribunal finds that there is any prejudice caused to Comcare by the delay in giving notice.
56. They point to the difficulty involved in dealing with Mr Heneker’s claim, including his obviously poor memory and his inability to recall with any accuracy or certainty many details of his prior employment history.
57. They argue that it is impossible for them to now go back and establish the degree of hearing loss that Mr Heneker may have sustained working with the Railways in the 1950s and to determine what portion of his hearing loss has resulted from ageing or other reasons and what portion may have been caused by exposure to noise.
58. Comcare contends that if there is a degree of hearing loss associated with noise exposure, then as Mr Heneker worked in a number of industrial settings as well as with the Railways prior to the first hearing test in 1993, was there other noise exposure in other workplaces that may have contributed to or actually caused the loss?
59. Mr Heneker was 57 years of age when his hearing was first formally tested in 1993 and they argue that it is impossible to ascertain the degree to which age may have contributed to the loss.
consideration and application of the law
60. There are two separate steps involved in making a claim under the 1930 Act. The first is the giving of notice of injury and the second is making a claim. The notice must be given as soon as practicable after the accident causing injury has occurred and before the employee has voluntarily left the employment of the Commonwealth and the actual claim must be made within six months from the occurrence of the accident.
61. The ameliorating provisions of s 16 of the 1930 Act provide that a claim can be considered if, despite the notice and claim being out of time, there is no prejudice to the Commonwealth by the failure to give notice within the requisite time or that the failure to make the claim or give notice was occasioned by mistake, absence from Australia or other reasonable cause.
62. Prejudice to the Commonwealth is clearly established in this case. However, that does not put an end to the matter. Section 16(1)(i) allows for a claim to be considered if either reasonable cause or mistake can be established.
can mr heneker establish mistake or other reasonable cause?
63. In Re Willis and Australian Telecommunications Commission and the Commonwealth of Australia (1989) 19 ALD 665, the Tribunal expressed the view that in considering whether a mistake or other reasonable cause exists, such that the claim can be considered, the Tribunal must have regard to only the specified period within which the claim should have been lodged, namely the period of six months after the date of injury. They relied on the High Court decision of Murray v Baxter (1914) 18 CLR 622.
64. In other words, when considering the mistake or cause put forward for the failure to lodge a claim with the prescribed period, the Tribunal is considering only the six months after the date of the injury. This interpretation is based on the inclusion in paragraph 16(1)(ii) of the 1930 Act of the words “within the period above specified”.
65. The High Court commented in Murray v Baxter:
"You cannot imply a period where one is expressly 'specified'. The 'period above specified' for the commencement of an action is expressly stated to be 'within six months from the time of death'; and 'within' does not include a period 'beyond'. The Act distinctly states and limits within fixed termini a condition precedent; it permits that condition to be excused; if it is excused its effect ceases, and if we were to extend the limits specified we should be creating a different condition."
66. In Re Tralongo, Deputy President Jarvis found that the words “within the period above specified”, although not included specifically in paragraph (i) of the proviso, should also be read into that paragraph and he commented as follows:
“… However, the operative words of s 16(1) require the notice to be served as soon as practicable after the accident happened and before the employee has voluntarily left the employment of the Commonwealth. In my opinion, where paragraph (i) refers to the ‘want’ of notice having been occasioned by a mistake, absence from Australia or other reasonable cause, the paragraph is also referring to the period in which the notice should have been given. …”
67. If that interpretation is correct, and accepting the medical evidence that the hearing loss would have become permanent after exposure for one year, then in determining the issue of mistake or reasonable cause, the Tribunal is looking at the period in the 1950s when the loss would have first occurred.
68. Hearing loss is a condition that a person may not appreciate the seriousness of when it first occurs. When caused by prolonged noise exposure, it is a condition that can slowly develop. Dr Frayne’s view is that the hearing loss, if caused as alleged by continuous exposure to noise while working for the Railways, would have been permanent within one year. The Tribunal assumes that it would incrementally worsen as the exposure continues. A difficulty with the evidence is that Dr Frayne was not given an accurate history as to Mr Heneker’s work history and was not advised of his exposure to a loud explosion in 1980. Nevertheless, there is no dispute on the evidence that there was exposure to loud noise in the 1950s.
69. If Mr Heneker’s noise induced hearing loss caused by his work at the Railways in the 1950s was at its highest when he left his employment and moved away from the source of damage, then even had he realised at that point that he had a permanent loss he also believed mistakenly that once he left his employment he could not make a claim.
70. Mr Heneker’s evidence is that he was aware of hearing loss “after” he left the Railways. It was not possible to discern from his evidence at exactly what point in time after he left his employment that he became aware of the loss. It appears that when he applied to Transfield Services for a job, his attention was first specifically focused on his hearing deficit and this was many years later.
71. The concept of “mistake” has been considered in a number of cases. In the case of Telstra Corporation v Roycroft (1997) 47 ALD 671, North J commented at page 679 as follows:
“As these authorities show, there is a thin line between ‘mistake’ and ‘ignorance’. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence …”
72. It is generally accepted that ignorance of a requirement of the law or a mistake about its content can constitute a mistake and is not treated as ignorance (Commonwealth of Australia v Connors (1989) 86 ALR 247).
73. The Tribunal is satisfied that the failure to give notice and to make a claim within the time prescribed was caused by two mistakes. Mr Heneker had not realised the seriousness of his hearing loss or its permanence and further he believed that once he left his employment with the Railways he could not bring a claim. He therefore comes within the ameliorating provision in s 16 of the 1930 Act and his claim can be considered.
74. If I am wrong in that analysis of the case as presented, then I must consider whether there was there a reasonable cause for Mr Heneker not giving notice during the six month period and for not lodging a claim.
75. In Re Willis, after a review of the authorities, the Tribunal commented as follows:
"An examination of the principles adopted by the Full Court of the Supreme Court of Victoria in Black’s case and in the later case of Melbourne and Metropolitan Tramways Board v Witton, supra, and by single judges of the Supreme Court in Quinlivan v Portland Harbour Trust, supra, and Cowie v State Electricity Commission of Victoria and Pryse v State Electricity Commission of Victoria, supra, and the consideration of the facts in each case against those principles shows that each has applied the test by looking at what was a reasonable course of conduct for the plaintiff in the circumstances in which he found himself. They have not judged the plaintiff by reference to some hypothetical man in hypothetical circumstances. It is an objective test taking into account the subjective circumstances of the plaintiff in each of those cases. Where previous decisions of this Tribunal have adopted a different interpretation, this Tribunal takes the view that they are not supported by these authorities."
76. The Tribunal finds that Mr Heneker did not become aware of the significance and permanence of his hearing loss until well after leaving the Railways and that, combined with his belief that he could do nothing about bringing a claim once he had left his employment, presents a reasonable excuse in the circumstances.
77. In all the circumstances, the Tribunal is satisfied that the applicant can proceed to have the merits of his claim considered under the relevant legislation.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .............J Coulthard.........................................
AssociateDate of Hearing 29 July 2008
Date of Decision 5 December 2008
Counsel for the Applicant Mr N Kernahan
Solicitor for the Applicant Johnston Withers
Counsel for the Respondent Mr M Roder
Solicitor for the Respondent Sparke Helmore
0
5
0