HINES and MILITARY REHABILITATION COMPENSATION COMMISSION
[2010] AATA 878
•9 November 2010
Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR DECISION [2010] AATA 878
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4294
VETERANS’ APPEALS DIVISION ) Re JEFFREY HINES Applicant
And
MILITARY REHABILITATION COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date9 November 2010
PlaceSydney
Decision Mr Hines did not make a proper claim in regard to any injury suffered on 8 March 1994, and cannot therefore pursue any compensation rights under the Safety Rehabilitation and Compensation Act 1988.
..................[sgd]............................
Ms G Ettinger
Senior Member
CATCHWORDS
Notification of injury – Army reservist- myelomeningitis - injury notified when compensation claim made 14 years after event – section 53 issues - Applicant did not report the injury as soon as practicable after he became aware of it - prejudice to the Respondent – records destroyed – section 53(3) issues – no mistake or reasonable excuse - discretion not exercised in Applicant’s favour.
Safety Rehabilitation and Compensation Act 1988 s 53
Comcare v Luck (1999) 29 AAR 403
Re Deveson and Comcare (1999) 53 ALD 794
REASONS FOR DECISION
9 November 2010 Ms G Ettinger, Senior Member 1. Mr Jeffrey Hines was an Army Reservist from 1985 to 1988, and 1993 to 1995. He attended a course which commenced on 5 March 1994, and told me that he felt ill when he woke up on the morning of 8 March 1994. Later, when he was on the parade ground, he presented with generalised weakness, acute lumbar pain and muscular spasm, with headache and slurred speech. He was admitted to the 1st Field Hospital at 7:20 am on 8 March 1994, and transferred to Liverpool Hospital at approximately 10:20 am the same day. Although Mr Hines, who now suffers impaired memory and other disabilities, cannot recall exactly, the records indicate he was returned to the 1st Field Hospital later the same evening. He remained in hospital until 14 March 1994, and has suffered serious consequences of his illness.
2. The diagnosis made at the time was that Mr Hines suffered myelomeningitis. The exact diagnosis is not agreed between the parties. I do not, however have to deal with the diagnosis, as this is an interlocutory hearing to determine whether a claim for compensation was properly made pursuant to section 53 of the Safety Rehabilitation and Compensation Act 1988, (the Act).
3. Mr Hines’ compensation claim was received by the Department of Veterans’ Affairs on 16 April 2008. In his Statutory Declaration dated 11 November 2009, (Exhibit A1), which was before me, Mr Hines stated that there was toilet paper and effluent on the parade ground on his first day, 5 March 1994. He stated that the entire group sat on the ground for an hour on that day, and then did PT and exercises in the same place on subsequent days. Mr Hines attributed his illness to an infection developed from contact with the ground after it had been contaminated by overflow from ablution blocks.
4. Mr Hines’ claim for compensation was refused, and the refusal affirmed by a Reconsiderations Officer of the Military Rehabilitation and Compensation Commission (the Commission) on 6 August 2009, on the basis that the Delegate was not satisfied that a probable causal link exists between Mr Hines’ military service and the development of meningo-encephalitis. Mr Hines has appealed that decision to this Tribunal.
5. However, as a preliminary issue, I have to consider whether Mr Hines made a proper claim pursuant to section 53 of the Act.
6. Section 53(1) of the Act provides as relevant:
This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury;
………….
7. Section 53(3) of the Act provides:
Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by reason of this failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
8. In considering whether Mr Hines notified the Commission as soon as practicable after he became aware of the injury, (section 53(1)(a)), I took into account both the written and oral evidence of the Applicant, Mr Clarke, his former Sergeant and his friend, and Mr Reis, the Acting Director of the Military Compensation Appeals Group in the Department of Veterans’ Affairs. There was also a medical report of Dr Gale, Director of Rehabilitation, Central Coast Area Health Service, who had examined Mr Hines on 11 April 1994, a little over a month after the incident of 8 March 1994 (Exhibit R5), and medical notes of Dr Kenny for Mr Hines’ attendances during 2000/1, (Exhibit R4).
9. I am satisfied that Mr Hines’ notification was made some 14 years after his claimed injury in 1994, as the written claim was made on 16 April 2008. However I need to consider pursuant to section 53(1) of the Act, whether the notification was as soon as practicable after Mr Hines became aware of the injury.
Did Mr Hines give notification of the event of 8 March 2004 as soon as practicable after Mr Hines became aware of the injury?
10. Mr Hines made a Statutory Declaration dated 11 November 2009 which is Exhibit A1 before the Tribunal. In his oral evidence, he emphasised how ill he had been, how long his rehabilitation has taken, and he discussed his remaining problems. Mr Hines’ evidence was supported by Mr Clarke, his friend and former sergeant. However there was contradiction of some of those claims in the other evidence, particularly regarding the seriousness of Mr Hines’ illness immediately after admission to the 1st Field Hospital. Mr Clarke gave evidence that he was called to Mr Hines’ bedside on 8 March 2004 because he was dying. In that regard, and in contradiction of that evidence, I note in particular a telex sent at 8:45 am on 8 March 1994, (a little over an hour after Mr Hines had been admitted), from the Training Group Sydney to DEFARM Canberra about Mr Hines, informing as follows: Mbr is stable and out of danger. No diagnosis available at this time.
11. The exact nature of Mr Hines’ illness and diagnosis which are not agreed between the parties, does not concern me here, because I am, as a preliminary issue, assessing whether Mr Hines gave notification of the events of 8 March 1994 as soon as practicable after he became aware of any injury.
12. The answer to the question whether Mr Hines gave notification of the events of 8 March 1994 as soon as practicable after he became aware of them, must be no, because although Mr Hines was hospitalised until 14 March 1994, and suffered residual problems, I am satisfied he would have been able to give notification of the events of 8 March 1994 within a short time afterwards. He attended at his doctor and discussed his illness on 18 March 1994.
13. I am also mindful of Mr Hines statement at paragraph 7 of his Statutory Declaration being: … Subconsciously I had an idea that the polluted parade ground had been a factor, but hadn’t really made the connection.
14. I noted also from the medical notes of Dr Kenny that on 28 April 2000, the doctor recorded, presumably after discussion with Mr Hines, D/W meningoencephalitis – left leg weakness/Episodes of forgetfulness – D/W re: potential legal redress 2 (secondary) to poor sanitation at Army Reserve … I am satisfied then that by 28 April 2000, if not before, Mr Hines was aware of rights to take legal action in relation to the Army.
15. In that regard, I was also mindful of Mr Clarke’s evidence, which was that he visited Mr Hines frequently, usually weekly. Mr Clarke’s statements were in the T-documents at T5 (dated 17 March 2008), and T39 (dated 23 June 2009). He recounted that Mr Hines had been part of his unit. He said that he remembered effluent on the parade ground in March 1994.
16. When questioned about his knowledge regarding the making of claims, Mr Clarke said that he only learnt about the rights reservists had to make claims for compensation when he spoke to the Padre in 2006/7. Mr Clarke agreed that he himself knew about making claims, but that reservists were in a different position, and had difficulties in doing so. Mr Clarke agreed he had tried to raise matters with Mr Hines about his illness, and about getting assistance, but said that Jeff was very stubborn about it and didn’t want to talk about it. Mr Clarke said that it was about four years ago that he realised Mr Hines could claim for compensation. He said that it is easier now because the army is more one army concept.
17. I have considered the evidence and the application of section 53(1). Mr Hines did not provide written notice of his claim to the respondent until he lodged his claim form dated 16 April 2008, (Comcare v Luck (1999) 29 AAR 403). Giving notification of an event as soon as practicable after he became aware of the event cannot, given the circumstances I have considered above, in my view, extend to 14 years.
Consideration of section 53(3)(c) of the Act
18. Accordingly, I then moved to consider whether any of the requirements of section 53(3)(c) of the Act have been met. Section 53(3)(c) of the Act provides a discretion for the Tribunal to consider whether prejudice to the Commissioner arises if Mr Hines’ late application for compensation were treated as having been made as soon as practicable. The reasons which may be taken into account could be death, or absence from Australia, or out of ignorance, from a mistake or from any other reasonable cause. Neither death nor absence from Australia are relevant in this case, but the other grounds are explored below.
19. Mr Colborne submitted that the requirement to notify as soon as practicable after the injury arose was when the Applicant confirmed in his mind that there was a connection between the circumstances of his employment and his medical conditions, (Re Deveson and Comcare (1999) 53 ALD 794). Mr Colborne suggested that might have been when Mr Hines discussed his medical condition with Dr Kenny in 2000, or in 2006 when the compensation discussions and process commenced.
20. Mr Colborne acknowledged there was information regarding the destruction of documents before the Tribunal in a letter which was Exhibit R2 before the Tribunal. Accordingly, he conceded that if Mr Hines’ awareness of compensation rights was determined to have occurred in 2000, then there might be certain prejudice to the Respondent, in that the Respondent may not be able to obtain accurate information regarding the state of the parade ground in 1994. Should the date be found to be 2006, then there would be no prejudice, he submitted.
21. Mr Colborne also submitted that there was no prejudice regarding the medical evidence as contemporaneous evidence was available. He also indicated he had identified three witnesses who could give evidence for the Applicant.
22. Mr Kelly on the other hand, argued that there was clear prejudice to the Respondent, as raised by Mr Reis.
23. Mr Reis gave evidence by telephone. His statement dated 12 July 2010 was before the Tribunal as Exhibit R3. He emphasised that Mr Hines had made a claim 14 years after the event he claims caused his illness, and indicated that the Commission had therefore been unable to properly investigate the claim. He stated that it was virtually impossible after such a lag, to verify the details of the alleged exposure, or the circumstances in which the claimed condition was suffered. He thought many records would have been destroyed in the meantime, and that the Commission would suffer prejudice if an appeal were to be brought. Mr Reis agreed with Mr Colborne that the evidence of eyewitnesses to the alleged contamination could be sought, but also emphasised that recollections could be flawed after such a long time lag.
24. Mr Kelly submitted that the Respondent had lost the opportunity of testing the Applicant’s witnesses’ evidence in regard to any exposure, and added that any evidence now given, could be subject to problems of memory because such a long time had elapsed since 1994.
25. Mr Kelly submitted that not only had Mr Hines known about notifying the events of 8 March 1994 in 2000 and 2006, but he had known shortly after the incident in March 1994. Mr Kelly submitted that there was evidence he had discussed it with his doctor who at T36/138 verified that Mr Hines had informed me of his diagnosis …2. He referred directly, at the time of this first consultation, (March 1994), to the filthy conditions at Ingleburn barracks – including raw sewage being present on parade ground. 3. There was never any indication that his illness was suffered by ANY other family member. 4. His history of illness given to me at this time was of symptoms beginning while at Ingleburn barracks – there was never any indication of similar symptoms preceding that initial day when he presented to hospital. …
26. Mr Kelly also referred to the medical evidence which indicated that Mr Hines was not as seriously ill as he had indicated to the Tribunal, and submitted that accordingly, he could have notified sooner than the 14 years it took.
27. In coming to a decision, I cannot accept that Mr Hines was ignorant of his rights. He had Mr Clarke, a fulltime soldier who knew about the applicable duties and rights, visiting him weekly.
28. I am mindful that Mr Hines also discussed possible causes of his illness and the possible nexus with the effluent he says was on the parade ground with Dr Kenny shortly after his discharge from hospital in 1994. Dr Kenny says so at T36/138.
29. Further, Dr Kenny’s clinical notes of 28 April 2000 record a conversation about legal redress due to illness secondary to sanitation issues at Army Reserve. Then in 2006/7 both Mr Clarke and two Padres were involved in assisting to assemble information for a claim. Even then, it was only on 16 April 2008 that Mr Hines made a claim which could count as notification of the event of 8 March 1994.
30. There was no mistake. There was simply delay, and from the evidence before me I can discern no reasonable cause.
31. I am satisfied that to allow a claim pursuant to section 53(3)(c) would prejudice the Respondent, as due to the effluxion of time, there would be difficulties in obtaining information regarding the parade ground, and even if witnesses can be found, their memories of events so many years ago, could be unreliable.
32. Accordingly Mr Hines’ application must fail.
DECISION
33. Mr Hines did not make a proper claim in regard to any injury suffered on 8 March 1994, and cannot therefore pursue any compensation rights under the Safety Rehabilitation and Compensation Act 1988.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ............[sgd]...................................................................
AssociateDate of Hearing 30 September 2010
Date of Decision 9 November 2010
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent DLA Phillips Fox
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