Hodgson and Military Rehabilitation and Compensation Commission (Compensation)
[2015] AATA 610
•19 August 2015
Hodgson and Military Rehabilitation and Compensation Commission (Compensation) [2015] AATA 610 (19 August 2015)
Division
Veterans' Appeals Division
File Number
2015/1492
Re
Noel Hodgson
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 19 August 2015 Place Perth The decision under review is affirmed.
...................[sgd].......................................
Deputy President Dr Christopher Kendall
CATCHWORDS
COMPENSATION - applicant was a soldier who was injured in a car accident when returning to military base in 1965 - no claim for compensation was made until 2014 – consideration of whether notice of the injury had been given in accordance with s 16 of the 1930 Act – consideration of whether the failure to make a claim for compensation before 2014 resulted in prejudice to the Commonwealth or resulted from ignorance, from mistake or from any other reasonable cause – consideration of whether applicant satisfies section 9A of the 1930 Act in relation to whether applicant was returning to military base for the purposes of his employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth): section 124
Compensation (Commonwealth Government Employees) Act 1930: section 9A – section 16(1)
CASES
Ernest Boothman and Military Rehabilitation and Compensation Commission [2004] AATA 1002
Commonwealth v Wright [1956] HCA 79
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
19 August 2015
BACKGROUND
Noel Hodgson served in the Australian army from 22 May 1965 to 22 February 1967.
Mr Hodgson sustained severe injuries while riding as a passenger in a motor vehicle on 27 July 1965 near Nuriootpa in South Australia. At the time, he was returning to the Army base in Kapooka.
This matter requires the Tribunal to decide whether Mr Hodgson can claim compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”) for injuries he claims arose during the course of military service on 27 July 1965.
Mr Hodgson did not lodge his claim for compensation until 3 March 2014, some 49 years after his injuries were sustained.
Mr Hodgson seeks review of a reviewable decision (the “Reviewable Decision”) of the Respondent, Military Rehabilitation and Compensation Commission (the “Commission”) dated 16 February 2015 (T16). By that reviewable decision it was decided that the Commission’s determination dated 22 September 2014 was affirmed.
The Commission’s determination dated 22 September 2014 (T8) denied liability for Mr Hodgson's claimed “osteoarthritis of cervical, thoracic, lumbar spine, pelvis and hips, fracture of lower jaw and malocclusion of teeth” conditions, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
FACTS
Mr Hodgson is 70 years old (DOB: 19 June 1944). He enlisted in the Australian Regular Army on 25 May 1965 and was discharged on 22 February 1967 (T12).
Mr Hodgson lodged a compensation claim form dated 3 March 2014 (T4) in respect of “osteoarthritis of cervical, thoracic, lumbar spine, pelvis and hips, fracture of lower jaw and malocclusion of teeth” conditions. Mr Hodgson states in his claim form that these injuries arose on 27 July 1965 as a result of his involvement in a motor vehicle accident while travelling back to Kapooka from Adelaide in a private motor vehicle on the same day. The form also says Mr Hodgson first received medical treatment for his injuries on the day of the accident.
The Injury or Disease Details Sheet dated 3 March 2014 (T4) attached to Mr Hodgson’s claim form states the journey on 27 July 1965 took place “during basic army training”.
In Mr Hodgson’s letter to Mr Steve Blair dated 29 March 2014 (T9), he explains that he attempted to seek legal advice from a lawyer in Adelaide “as a 20 year old,” but this did not eventuate as the lawyer died.
Mr Hodgson’s letter dated 24 September 2015 to his representative Mr Endrey (T9) says that the accident occurred when the car rolled off road somewhere in the Barossa Valley and he went through the back windscreen. Mr Hodgson says he was unconscious and taken to Royal Adelaide Hospital for head, shoulder and jaw injuries. Mr Hodgson also says his jaw and teeth repairs were not performed properly and that he had suffered from teeth problems, neck pain and back pain since then.
Requests for information regarding Mr Hodgson’s accident and personnel file were made to Defence Single Access Mechanism on 13 September 2014 (T7), 7 October 2014 (T10) and 18 November 2014 (T12). The results were, respectively:
a)The daily and standing orders in relation to recruits at Kapooka around the relevant time could not be located.
b)No investigations reports could be located in relation to the incident.
c)No evidence was found regarding Mr Hodgson having authority to travel. Rather, the day recruits were due to return to base.
By way of determination dated 22 September 2014 (T8), liability under the SRC Act was denied on the basis that the delegate was not satisfied that Mr Hodgson’s claimed conditions arose out of, or in the course of, his military service. The delegate noted that whilst service medical records support that medical treatment was obtained for Mr Hodgson’s claimed injuries, there was no evidence to support approval for Mr Hodgson’s travel.
In his request for reconsideration dated 8 October 2014 (T11), Mr Hodgson stated that the inability to locate the relevant daily and standing orders are insufficient grounds for concluding there was no evidence that he had approval to travel outside the base. Mr Hodgson stated that this lack of evidence actually goes to prove he had official approval to travel because, had he not had approval, there would be a record on his personnel file that he had been disciplined. Mr Hodgson also submitted that his official approval to travel establishes the necessary connection between his military service and his claimed injuries.
On 5 January 2014, Mr Endrey requested the necessary historical information from Lieutenant Colonel Ryan, 1st Recruit Training Battalion in Kapooka (T14). On 15 May 2015, Mr Endrey advised the Commission that no response to this letter had been received.
A Reviewable Decision dated 16 February 2015 (T16) affirmed the determination of 22 September 2014. In her decision, the review officer concluded that Mr Hodgson’s injuries did not fall within section 9A of the Compensation (Commonwealth Government Employees) Act 1930 (the “1930 Act”) because, at the time of the accident, Mr Hodgson was returning to his “place of abode” at Wagga Wagga from Adelaide and not for the purposes of commencing “employment duties” on the same day.
LEGISLATION
Mr Hodgson’s injuries occurred in 1965. Section 124 of the SRC Act reads:
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(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.
Section 9A of the 1930 Act, as amended, reads:
(1)Where personal injury by accident is caused to an employee while he is travelling to or from –
(a)his employment by the Commonwealth (including any school in relation to which subsection (2.) of the last preceding section applies);… the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of, or in the course of his employment.
(b)In this section, “travelling” means travelling by the shortest convenient route for the journey and does not include travelling during or after any substantial interruption of the journey or any substantial deviation from the route made for a reason unconnected with the employee’s employment, attendance at the school … as the case may be …
Section 16(1) of the 1930 Act reads:
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 the 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
It was contended by the Commission, and the Tribunal agrees, that in determining whether Mr Hodgson is entitled to compensation under the SRC, two issues need to resolved:
The Threshold Issue
Is Mr Hodgson precluded, pursuant to section 16 of the 1930 Act, from compensation because he failed, in effect, to give notice as soon as practicable after the accident happened?
The Substantive Issue
Pursuant to section 9A of the 1930 Act did Mr Hodgson’s injuries arise out of, or in the course of his employment?
ANALYSIS
The Tribunal faces a difficult situation in relation to this matter. From the date of his accident, 49 years passed before Mr Hodgson made a claim for compensation. Regrettably, it would appear that during that time, many of the records that might normally assist the Tribunal in relation to a matter of this sort have been lost. Further, while Mr Hodgson struck the Tribunal as a sincere and trustworthy witness, it was clear to the Tribunal from cross examination that Mr Hodgson’s recollection of what did and did not happen in 1965 was at times inconsistent and sometimes unclear.
The Tribunal can only work with what it has before it. Evidence of the sort that would have assisted Mr Hodgson simply was not available. As will be seen below, this negatively affected Mr Hodgson’s ability to meet the requirement needed in relation to both the threshold issue and the substantive issue.
The Threshold Issue
Section 16 of the 1930 Act required Mr Hodgson to:
· first, give notice of the accident, as soon as practicable after the accident happened and before he had voluntarily left the employment of the Commonwealth; and
· second, make a claim for compensation within six months from the occurrence of the event.
It is not disputed that Mr Hodgson himself did not “formally” advise the military that he had been treated.
Mr Hodgson contends that the fact that he was treated in the hospital for quite serious injuries and the fact that military officials would have been aware of and advised of his injuries amounts to a compliance with the obligation to give statutory notice under section 16 of the 1930 Act.
This issue has been effectively canvassed in Ernest Boothman and Military Rehabilitation and Compensation Commission [2004] AATA 1002.
In Boothman, AAT Member, Mr M J Allen, explained as follows:
53.In the original determination of September 2001 and the reconsideration decision of February 2002 the respondent made no reference to the provisions of s 53 or 54 of the 1971 Act and their requirements regarding the timely giving of notice of injury and the making of a claim for compensation. In its Statement of Facts and Contentions the respondent contended that the applicant had failed to comply with those two sections by not giving notice in writing of the injury as soon as practicable (in accordance with s 53) and not making a claim within six months of the date of the injury (in accordance with s 54); that the Commonwealth is, by reason of the applicant’s failure to do those things, prejudiced; and that the failures did not result from the death, absence from Australia, ignorance, mistake or any other reasonable cause on the part of the applicant.
54.In the case of giving notice of the injury, the obligation in s 53 (1) is to serve "... notice in writing of the injury ... as prescribed, on the Commonwealth" as soon as practicable after the occurrence of the injury or after the employee became aware of the injury. The first significant point to note about this obligation is that the notice does not need to be given by the employee. Regulation 15 of the Compensation (Commonwealth Employees) Regulations (Statutory Rule 112 of 1971) relevantly provides that, in the case of an injury, the notice that is required to be served by s 53(1) shall state the name and address of the place of residence of the employee; the place, date and time at which and on which the injury occurred; the circumstances in which the injury occurred and whether any other persons were present, and if known to the person serving the notice, the names and addresses of the places of residence of those persons. Sub-regulation 15(4) provides that a notice of injury shall be served on the employee’s "immediate superior officer" in the employment in which he was employed at the time when the injury or accident occurred, but sub-regulation (6)(a)(ii) qualifies that by providing that, in the case of an employee who is a member of the military forces, the notice may be served by leaving the notice at, or sending the notice by post to, the Office of the Secretary to the Department of the Army.
55.In the present case it is apparent from Tpp75 and 77 that by no later than 19 September 1980 the military hierarchy (including the Military District of Sydney and the Department of the Army in Canberra) was aware of the motor vehicle accident, the identity of the applicant, and the location at which the accident had occurred – although the details of the accident were not known at that stage. I have no doubt on the evidence that by the time the applicant was admitted to a military hospital in Adelaide within a matter of days the other information required by reg 15 would have been known to the military authorities – with the possible exception of the requirement to identify the names and addresses of the other persons who were present when the injury occurred.
56.As the authors of the Annotated Safety Rehabilitation and Compensation Act 1988 (Ballard & others, Federation Press, (6th ed. 2003 at pages 355 and 356 observe, there have been conflicting decisions in this Tribunal as to whether admission to a military hospital could constitute a notice of injury in the form required by section 16 (2) of the legislation that was applicable prior to the 1971 Act: see Re Muras and Department of Defence [1998] AATA 645; 52 ALD 579 per Deputy President McMahon and Re Siemsen and Comcare [1999] AATA 871 per Senior Member Dwyer. Senior Member Dwyer observed in Re Siemsen at [43]:
"...so long as notice is given the section is satisfied. It is not there to create a hurdle for applicants, but to provide that notice is given of accidents and claims are lodged "so soon as practicable" and "within six months", respectively, except in certain circumstances, where there is "reasonable cause" for the delay. That analysis is consistent with the beneficial nature of compensation legislation as explained by the Full Court of the Federal Court in Whittaker v Comcare [1998] FCA 1099; (1998) 28 AAR 55 at pages 67-68."
57.Senior Member Dwyer’s approach is, in my opinion, consistent with the views expressed by the Tribunal in Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534, in which the Tribunal said at [6]: "... where an appropriate officer of the Commonwealth or the relevant instrumentality is made aware at an appropriate time of the alleged injury or disease and the circumstances in which it was suffered or contracted, the Commissioner and the Tribunal should, we believe, be slow to hold that a claim for compensation for the incapacity resulting from that injury or disease must fail because section 53 [of the 1971 Act] has not been complied with to the letter.”
From the limited medical evidence before the Tribunal, the Tribunal is satisfied that the injuries sustained by Mr Hodgson were quite serious. In those circumstances, it is inconceivable that the military would not have been put on notice that a young recruit had been seriously injured.
In the circumstances, I am satisfied that notice of Mr Hodgson’s injury with sufficient accompanying particulars as to how the injury was suffered, had been received by the Commonwealth as soon as practicable and that, in those circumstances, section 16 of the 1930 Act was satisfied.
Mr Hodgson must also satisfy the Tribunal that pursuant to section 16, a claim for compensation was made by him or on his behalf within six months from the day of his accident.
It is not disputed that Mr Hodgson did not make a claim for compensation until 49 years after the date of his accident. As such, he must rely on provisos (i) and (ii) of section 16 to cure his failure to file a claim for compensation within the six month period. Specifically, he must show that the Commonwealth will not be prejudiced by a delay of 49 years. He can also lead evidence to show that his failure to make a claim was occasioned by mistake, absence from Australia or other reasonable cause.
In relation to prejudice, as mentioned, after 49 years, much of the evidence needed to make a determination in relation to Mr Hodgson’s claim has gone missing. Despite concerted efforts on Mr Hodgson’s part to find evidence of the sort needed, nothing has been produced.
The Commission argued that in the circumstances, the Commonwealth would indeed be prejudiced if Mr Hodgson’s claim were allowed to proceed:
The Respondent contends that it is prejudiced by the Applicant’s failure to give notice of his claim as soon as practicable and relies on the following factors to support this contention:
There is no contemporaneous evidence of the circumstances and events prior to the MVA, such as daily standing orders and authority to travel, which is directly relevant to the substantive issue.
The significant delay in the Applicant lodging a claim for compensation has resulted in the Commonwealth losing the opportunity to obtain such contemporaneous evidence and would require relying largely upon the Applicant’s history. As the Tribunal stated in Campbell and MRCC (2009) (AATA 09/0273; 23 April 2009; Kenny M), ‘that is the very history which the Respondent has been unable to adequately investigate because of the passage of time, the unavailability of contemporaneous records’.
The prejudice suffered by the Respondent is more than minimal and is ‘of such a nature as to hamper the Commonwealth unreasonably in preparing to meet the applicant’s claims’ (Re Muras referring to Re Scutts and Department of Defence (10 July 1998, unreported)).
The Tribunal agrees. The gap of 49 years is significant. In relation to this matter, the evidence shows that it has made the gathering of evidence of the sort required almost impossible.
Further, the Tribunal finds that there is no evidence before it to establish that Mr Hodgson was absent from Australia, that the circumstances gave rise to a mistake that led him to not make a claim within six months or that there was any other reasonable cause for him not doing so within the prescribed period that would justify the Commissioner admitting the claim at such a late date.
In the circumstances, the Tribunal finds that Mr Hodges does not satisfy the requirements of section 16 of the 1930 Act.
The Threshold Issue
In relation to this issue, Mr Hodgson again faces the problem of a lack of evidence to support his assertion that he satisfied the requirements of section 9A of the 1930 Act.
The Tribunal was referred to the decision of the High Court of Australia in Commonwealth v Wright [1956] HCA 79. That case sets out a number of tests in relation to a claim of compensation for personal injury by accident arising out of or in the course of a person’s employment or caused while travelling to or from his employment and certain other places. These tests, and their particular relevance to the applicant’s circumstances, were summarised by Mr Hodgson (with the Commission agreeing) as follows:
·The accident to a soldier must have arisen out of or in the course of his service, which would include travelling on that service to or from a military camp, and when going on leave from the camp or returning to the camp on expiration of leave; but not otherwise for personal reasons (Webb J. at p. 551);
·There must be a real connection between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties (Fullagar J. at p. 553);
·A man cannot be properly said to be travelling to his employment unless the purpose of his travelling is to assume the duties of his employment (Fullagar J. at p. 553);
·In the case of a permanent soldier as surely as in any other, the notion of going to the performance of his duties is essential to the concept of “travelling to his employment” (Kitto J. at p. 560).
Mr Hodgson contended before this Tribunal that the facts of his case meet the above tests in the High Court judgment because:
·The injuries occurred in a motor vehicle accident on 27 July 1965 near Nuriootpa in South Australia;
·Nuriootpa is around 873 kilometres from Kapooka, a journey of about ten hours by car at the time;
·The applicant was a passenger in the car with two fellow-recruits;
·The proposed journey along the Sturt Highway was the shortest, most convenient route to Kapooka with no planned interruption or deviation;
·He was returning to 1st Recruit Training Battalion in Kapooka, New South Wales to resume duties at the end of four days’ approved leave.
The Tribunal does not agree that this proves Mr Hodgson’s case. In particular, there is insufficient evidence before the Tribunal to demonstrate, applying Wright, a real connection between the journey in question and Mr Hodgson’s employment in the sense that the immediate purpose of the employee in making the journey must be to enter upon the duties which his employment imposes upon him. While it is a fair enough inference that Mr Hodgson was returning to his military base, this is not sufficient to satisfy the legislative test. He may have been returning to his place of employment, but it is not shown that he was in any real sense returning to his employment.
Similar to the difficulties faced by the Court in Wright, the Tribunal simply cannot determine what Mr Hodgson’s purpose was in returning to the base. Unless it is proved that his purpose was to resume the duties of his employment, compensation is not payable.
The onus lies on Mr Hodgson to establish this was the case and the onus was not discharged. There is simply no evidence, for example, regarding any daily or standing orders in relation to recruits at Kapooka around the relevant time. This evidence would go towards supporting Mr Hodgson’s argument that he was travelling to his place of employment at the time of the accident and that his leave absence was in fact authorised etc. Further, there is no evidence that, had the Applicant made a safe return to Kapooka on that journey, he was immediately required to enter upon his employment duties
Overall, it cannot be said that Mr Hodgson was travelling to or from a state of activity called “employment” as per section 9A of the 1930 Act and it cannot be found that his claimed conditions arose out of, or in the course of, his employment.
In the circumstances, the Tribunal finds that Mr Hodgson does not satisfy the requirements of section 9A of the 1930 Act.
DECISION
For the reasons outlined above, the Reviewable Decision under review is affirmed.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall. ..............[sgd D Brodie]..........................
Administrative Assistant
Dated 19 August 2015
Date of hearing 12 August 2015 Representative of Mr Hodgson Mr A Endrey
RSL of Australia, WA BranchCounsel for the Respondent Mr B Dube Solicitors for the Respondent Sparke Helmore Lawyers
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