JOHN BEDFORD and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2012] AATA 338
•6 June 2012
[2012] AATA 338
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3186
2011/5074
Re
JOHN BEDFORD
APPLICANT
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member Date 6 June 2012 Place Brisbane The Tribunal sets aside the decisions under review and substitutes its decisions that the Tribunal has jurisdiction to determine whether the applicant’s claims for “knees”, “back”, “right wrist” and “psychological” may be admitted for determination under s 16 of the Commonwealth Employees’ Compensation Act 1930 (Cth) and that only the claim for “psychological” may be so admitted.
.............[Sgd].....................................................
Mr R G Kenny, Senior Member
CATCHWORDS
COMPENSATION – Injury or disease (knees, wrist and psychological condition) occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 (Cth) – Transitional provisions – Failure to give notice of accident as soon as practicable under Commonwealth Employees’ Compensation Act 1930 (Cth) – Commonwealth prejudiced by want of notice – Relevance of mistake for late notice – Reasonable cause for late notice for psychological condition only – Failure to make claim within specified period – Relevance of mistake for late claim – Reasonable cause for late claim for psychological condition only –Decision under review set aside in relation to knees, wrist and psychological condition – Claim for psychological condition only admitted for determination.
COMPENSATION – Injury (back condition) occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 (Cth) – Transitional provisions – Failure to give notice of accident as soon as practicable under Commonwealth Employees’ Compensation Act 1930 (Cth) – Commonwealth not prejudiced by want of notice – Late claim not due to mistake – No Reasonable cause for late claim – Decision under review set aside – Claim for back condition not admitted for determination.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Commonwealth Employees’ Compensation Act 1930 (Cth) ss 9, 16
Migration Act 1958 (Cth) ss 501, 501ESafety, Rehabilitation and Compensation Act 1988 (Cth) ss 53, 124
CASES
Campbell and Military Rehabilitation and Compensation Commission [2009] AATA 273
Comcare v Hill (1999) 56 ALD 487.
Commonwealth v Connors (1989) 86 ALR 247
Re Frosch and Comcare [2003] AATA 1207
Re Harbutt and Department of Defence (1998) 51 ALD 159
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642
Siemsen and Comcare [1999] AATA 871
Stewart and Commonwealth of Australia [1984] AATA 548
Telstra Corporation v Roycroft [1997] FCA 774
The Australian National Airways Commission and Another v Cassidy (1964) 110 CLR 172
Tran and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 7REASONS FOR DECISION
Mr R G Kenny, Senior Member
6 June 2012
BACKGROUND
1.On 11 February 2010, John Bedford lodged a “Claim for Rehabilitation and Compensation” under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for injuries which he alleged were related to his national service in the Australian Army from 22 April 1970 until 9 December 1971. The conditions he identified were “feet, knees, back”, “psychological” and “right wrist”. Mr Bedford also referred to “foot problems” including “ingrown toenail”.
2.On 29 September 2010, the Military Rehabilitation and Compensation Commission (“the MRCC”) made a determination in relation to Mr Bedford’s knees, right wrist and psychological conditions that, as there was “no current diagnosis for the … claimed conditions” and “[no] service medical documents … [to] show [he] received treatment for injuries”, it was unable to accept liability for those conditions. In a reviewable decision, dated 7 June 2011, the MRCC affirmed the determination on the basis that there was no diagnosis of the claimed conditions and no evidence of a causal relationship between them and Mr Bedford’s service.
3.The MRCC, on 29 September 2010, in a separate decision, determined that it was unable to accept liability for Mr Bedford’s back condition. This was on the basis that Mr Bedford had not provided a diagnosis of, or any medical information in relation to treatment for, a back condition. In a reviewable decision, dated 6 June 2011, the MRCC affirmed the determination on the basis that it was unable to find that Mr Bedford suffered a back injury causally related to his military service.
4.As I read the materials in this matter, the initial determinations and the reviewable decisions made by the respondent do not give specific consideration to Mr Bedford’s claim for his “feet” or “ingrown toenail”. On 12 April 2011, the MRCC advised Mr Bedford that a decision in relation to his bilateral foot condition had been deferred. Accordingly, those matters are not included in this review.
ISSUES AND LEGISLATION
5.The 1988 Act makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries where the injury occurred after the commencement date of the 1988 Act. This was 1 December 1988. The 1988 Act also contains transitional provisions which pertain to injuries that occurred prior to that date.[1] It is not in dispute that the legislation relevant to Mr Bedford’s claim is the Commonwealth Employees’ Compensation Act 1930 (Cth) (“the Act”). For liability to arise under the Act, the injury must have arisen out of or occurred in the course of employment with the Commonwealth.[2] Time-frames for giving notice of an incident and for making a claim to be admitted are set down in s 16(1) of the Act which, in so far as relevant, reads:
[1] See s 124 of the 1988 Act.
[2] See s 9 of the Act.
(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 incident; or
…
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.
6.Although the decisions under review dealt with the merits of Mr Bedford’s claim, it was agreed by the parties that the issues for determination are whether there is jurisdiction in the Tribunal to consider the threshold questions under s 16 of the Act and, if so, whether Mr Bedford satisfied the requirements of that provision.
EVIDENCE
Mr Bedford
7.Two incidents were relied on by Mr Bedford in relation to his claim. These were a motor vehicle accident (“the car incident”) en route to the Army base at Singleton and a fall from a traversing rope (“the rope incident”) during his basic infantry training. He gave the following accounts in a statement dated 1 November 2011 and a statutory declaration dated 8 February 2010.
8.In relation to the car incident, Mr Bedford wrote that he had completed ten weeks of basic training at Puckapunyal and was then posted to Singleton to complete his basic infantry training. He undertook the journey in his car with a fellow trainee, Ray Barrie. While negotiating a “shortcut” on a gravel road, he lost control of the car and ran off the road. It rolled over and stopped with the front wheels hanging over the edge of a steep drop. Other soldiers on the way to Singleton assisted in the recovery of the car and Mr Bedford and Mr Barrie continued, in the damaged car, to Singleton where Mr Bedford reported the car incident to the duty corporal. Both he and Mr Barrie appeared to be uninjured in the car incident.
9.Mr Bedford’s fall in the rope incident occurred whilst carrying a full pack and rifle across a traversing rope when he fell some three metres to the ground. He felt significant pain and soreness to his lower back and reported to the Regimental Aid Post (“RAP”) the following day. He also wrote that:[3]
Surely an examination should have been undertaken at the RAP.
[3] MCRS Appeal Request of John Bedford dated 15 December 2010.
He also reported a back injury and the rope incident at the time of his medical discharge where it is noted that it occurred “13/12 ago”. He declined an offer of physiotherapy for his back prior to his discharge because it would have delayed the discharge process. The injury has progressively worsened since that time and he first sought treatment in 1981 at Mt Gravatt in Brisbane from a chiropractor, Dr J Hobson. In 1991, he saw a specialist, Dr Ron Palmer, at the Spinal Medical Clinic at Bowen Bridge Road, Herston in Brisbane. Mr Bedford wrote that, after exhaustive attempts, he has been unable to locate either of those practitioners.
10.Mr Bedford described a total bilateral knee replacement in 2007, having suffered pain and discomfort from about 1990. He underwent surgery by Dr William Ryan from the Holy Spirit Hospital. Mr Bedford also wrote that he suffered from major depression and posttraumatic stress disorder for which he believed there was contribution from the car incident in 1970.
11.In his evidence, Mr Bedford said that he had been aware of the need to advise the army of an injury. He said it was like an event which occurred while travelling to work and had to be reported and he did so by reporting the car incident to the duty corporal at Singleton. He said that his fall in the rope incident was witnessed by the sergeant on duty who told him that “a report will be made to the medical officer”. Mr Bedford agreed that this information had not been included in his statement but he said that, at the time, he assumed that the sergeant would have reported the fall. Mr Bedford said that he had not been aware of the need to make a claim for an injury in order to initiate the compensation process. He believed at the time when he was serving that only those who served overseas were eligible to claim compensation. When asked how he formed that view, Mr Bedford replied: “Ignorance”. He learned that he was able to make a claim in 2009 after being so informed by other ex-servicemen. At that time, he had also complained of recurring nightmares about his car incident in 1970 and his doctor told him to include that in his claim. Prior to that, he was not aware that he may have been suffering from a psychiatric condition.
12.Mr Bedford agreed that there were no records of treatment for a back problem in his RAP documents and he said that his back pain had not been troubling him at the times he attended the RAP. He said that, at the time of his army discharge, he had “no real problem with his back” in that he could “manage the pain”. Nonetheless, he said that he had advised the discharge medical examiner of the rope incident and his back problem, which led to the referral to an orthopaedic surgeon. He said that, after discharge, his back condition progressively worsened and became severe in 1981.
Supporting declarations
13.In evidence were statutory declarations completed by Raymond Barrie, dated 20 September 2010; by Malcolm Brian, undated; and by Mr Bedford’s father, John James Bedford, dated 28 January 2010. Mr Barrie confirmed that he was a passenger in the car driven by Mr Bedford when it was involved in an incident ending with the wheels hanging over the edge of a cliff. He wrote that the car had rolled over, that assistance from some passing motorists enabled them to continue their journey and that neither he nor Mr Bedford appeared to have sustained any serious injuries. Mr Brian wrote that, in July 1970, he had observed Mr Bedford fall some three metres to the ground from a traversing rope while wearing battle webbing and carrying a rifle. He recalled that Mr Bedford lay prone for a short time before he was told to get up because he was delaying the exercise. He also recalled that Mr Bedford complained about hurting his back. Mr Bedford’s father wrote that he was contacted by Mr Bedford in early July 1970 and advised of the car incident. He wrote that he and a friend drove to Singleton, recovered the damaged car and returned it to Sydney.
Medical records
14.In evidence was a letter from the Regional Records Manager of the Department of Veterans’ Affairs, dated 22 April 2010, which advised that a search had been conducted of the Central Medical Record for relevant documents from Mr Bedford’s service records. The Manager advised that there were no documents relating to any knee condition. He provided the respondent with copies of RAP reports and discharge documentation. Those included Mr Bedford’s enlistment medical and discharge medical records as well as treatment records of treatments in September and December 1970, and in February, April, May, June, July, September, October and November 1971.
15.In addition to the report from the Regional Records Manager, the respondent also requested the Department of Defence provide Mr Bedford’s psychology record from his service documents. This was provided by the Director of Psychology on 13 May 2010. It was in evidence and disclosed no entries of a psychological nature.
16.In an RAP report, on 29 July 1971, gravel rash to the right knee is noted but no reference is made to the circumstances which led to that injury. On 27 September 1971, it is noted that Mr Bedford had painful feet after wearing boots. An in-patient record at 2 Military Hospital recorded treatment to Mr Bedford from 21 October 1971 until 8 November 1971 for chicken pox. At that time, he underwent a routine excision of the nail bed of the right great toe because of an infected in-grown toenail. The toe condition was also referred to in outpatient records of 11 and 12 October 1971.
17.In pre-discharge medical records[4] and Mr Bedford’s “Discharge History Questionnaire”[5], from 10 to 28 November 1971, reference is made to “[fractured] scaphoid 3 years ago, no further trouble”; “recurrent lumbar back pain following injury in Army – examination NAD”[6]; “chronic lumbar back ache radiating down back of left leg”; “lumbar strain”; complaint of “pain down left leg-worse in one position for long” – “fell from transverse ropes 1970”; and “back ache following injury 13/12 ago”. Mr Bedford was referred to an orthopaedic surgeon for his back and x-rays were taken on 10 November 1971. They revealed:[7]
No fracture or displacement was detected in the lumbar spine.
The disc spaces were not reduced.
The sacro-iliac joints were normal.
[4] Exhibit 1, T-document 4.
[5] Exhibit 1, T-document 4, p. 45.
[6] I understand the notation to mean “no abnormality detected”.
[7] Exhibit 1, T-document 4, p. 53.
A diagnosis of “soft tissue injury” was made and 5% degree of incapacity was recorded. Physiotherapy was recommended but declined by Mr Bedford in favour of a speedier discharge. His record also included a “yes” response to the question:[8]
[8] Exhibit 1, T-document 4, p. 45.
Have you ever received, applied for or do you intend to apply for a pension or compensation for an existing or prior disability?
18.Clinical notes from Mr Bedford’s treating doctors were in evidence for the period from November 2005 until November 2011. An entry, dated 10 July 2006, noted bilateral knee pain and pain in the lower back. On 10 November 2006, Mr Bedford is noted to have injured his right knee while undertaking traffic control duties on the Bruce Highway. On 9 and 18 November 2009, he is noted to have been involved in a car incident while travelling to Singleton in 1970 and to falling, in the rope incident, during his army training. In November 2009, the notes refer to nightmares and subsequent notes describe depression and anxiety. A report, dated 10 February 2012, was completed by psychologist, Emma-Kate Muir, to whom Mr Bedford was referred by his treating doctor. Ms Muir had four appointments with Mr Bedford from January 2011 to January 2012. She described symptoms of depression, anxiety and posttraumatic stress disorder which commenced shortly after the 1970 car incident and were exacerbated by a subsequent vehicle “pile up” on a freeway and a fall into a manhole in his employment as a traffic controller.
MRCC / Mr Bedford communications
19.An exchange of letters occurred between the MRCC and Mr Bedford after he lodged his claim. In its letter of 1 March 2010, the MRCC referred to s 16 of the Act and requested that Mr Bedford provide a detailed statement explaining why he did not submit his claim on, or soon after, the incident which he alleged was responsible for his claimed conditions. Mr Bedford spoke about the matter with Peter Rowse, an RSL pensions officer, who responded on behalf of Mr Bedford in an undated letter which was received by the MRCC on 10 March 2010. Mr Rowse wrote that Mr Bedford had advised him that he had not been aware that he had to lodge a claim within a certain time-frame and also that he was not informed by his superiors that a claim had to be lodged at the time.
20.In a further letter, dated 31 May 2010, the MRCC again referred to the Act and advised that it was likely that the Commonwealth had been prejudiced by Mr Bedford’s failure to give notice of an injury and to claim compensation within the prescribed period of six months. The MRCC indicated that the Commonwealth was likely to be unable to investigate Mr Bedford’s claim. It noted that certain material had been received from the Department of Defence but that no reference was contained therein to the car incident or the rope incident. The MRCC advised that, before a final decision was made, Mr Bedford had 28 days to provide further evidence that may assist his claim and that, if the requested information was not provided, his claim for compensation would be determined on the available evidence.
21.On 7 June 2010, Mr Rowse replied, indicating that Mr Bedford was in the process of obtaining witness statements which would be forwarded to the MRCC as soon as they were received. On 27 September 2010, Mr Rowse again wrote to the MRCC attaching two statutory declarations. These were stamped as having been received by the MRCC on 28 September 2010. As noted above, the MRCC rejected Mr Bedford’s claims on 29 September 2010.
SUBMISSIONS AND JURISDICTION
22.Mr Anthony Harding, for the applicant, submitted that the preliminary issue under s 16 of the Act had been conceded by the respondent because the reviewable decisions were based only on the merits of Mr Bedford’s claim. He referred to the letters exchanged between the MRCC and Mr Bedford which requested information from Mr Bedford to explain why he had not given notice of his incident or made his claim in a timely manner. Mr Harding submitted that, even though Mr Bedford provided such information to the MRCC, no reference was made to it in its decision. Rather, he submitted that, as information had been provided by Mr Bedford, the MRCC must have been satisfied of the preliminary issues under s 16 of the Act because it, in fact, determined the matter on its merits.
23.Mr Harding referred to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act) which, in part, reads:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
…
He conceded that this provision enabled the Tribunal to make any decision which the MRCC delegate could make. However, he submitted that the only decision to be made by the delegate was one based on the merits because an earlier decision must have been made to admit the claim under s 16 of the Act. He referred to the Tribunal decision in Stewart and Commonwealth of Australia[9] (Stewart) and submitted that there was no jurisdiction in the Tribunal to deal with the preliminary matter under s 16 of the Act. In the alternative, Mr Harding submitted that the requirements of s 16 of the Act were met by Mr Bedford.
[9] [1984] AATA 548 per SM Williams.
24.For the respondent, Mr Charles Clark did not accept that there had been a concession on the preliminary issue prior to the making of the decisions under review. Further, he submitted that, regardless of any such concession by the MRCC delegate, the Tribunal “stood in the shoes of the decision maker” because of s 43 of the AAT Act and was able, therefore, to consider whether or not s 16 of the Act was satisfied. He submitted that it had not been satisfied and that the merits of Mr Bedford’s claim should not be considered.
CONSIDERATION: JURISDICTION
25.In The Australian National Airways Commission and Another v Cassidy,[10] a claim by Mr Cassidy for compensation was rejected because his claim was not admitted under s 16(1) of the Act. On appeal to the District Court of New South Wales, it was determined that consideration could be given to the preliminary matter under s 16 of the Act as well as the merits of Mr Cassidy’s claim. The High Court, on further appeal, determined that the word “admit” means ‘“entertain’ not ‘grant’”.[11] It also determined that the District Court’s role was limited to determination of the preliminary matter under s 16 of the Act and did not extend to a consideration of the merits of Mr Cassidy’s compensation claim.[12] Mr Clark submitted that s 43 of the AAT Act enables a broader view of the decision under review to prevail. I accept his submission in that regard.
[10] (1964) 110 CLR 172 cited by Mr Harding.
[11] At 175.
[12] At 175.
26.In Re Frosch and Comcare[13] (Frosch), a reviewable decision was made, on the merits, to reject a claim for posttraumatic stress disorder without reference in the decision to the applicable notice requirements under the 1988 Act.[14] At the Tribunal hearing, Comcare raised the issue of whether the notice requirements had been met. The Tribunal held that it had jurisdiction to consider the issue of notice. Indeed, it went on to decide that there had not been compliance with those requirements. Mr Harding sought to distinguish that case from that of Mr Bedford on the basis that, in Frosch, no preliminary decision in relation to notice had been made by Comcare whereas, in Mr Bedford’s case, the exchange of letters between him and the MRCC indicated that the preliminary issue had been considered as a separate issue before the delegate made the determination of his claim on its merits.
[13] [2003] AATA 1207 following Comcare v Hill (1999) 56 ALD 487.
[14] See s 53 of the 1988 Act.
27.The MRCC letters to Mr Bedford requested further information that might assist his claim and, in the letter of 31 May 2010, it advised that, in the absence of such information, his claim for compensation would be determined on the available evidence. While declarations were received by the MRCC on 28 September 2010, the MRCC made its determination on the following day. There is no material before me which confirms that a separate preliminary determination was formally made on the issues under s 16 of the Act. Clearly, each of the MRCC delegates had the capacity to consider the application of s 16 of the Act in Mr Bedford’s circumstances and I am satisfied that they impliedly did so as part of the process of determining his claim. The same approach was adopted by the Tribunal in Tran and Minister for Immigration and Multicultural and Indigenous Affairs.[15] There, Mr Tran’s visa had been cancelled under s 501(2) of the Migration Act 1958 (Cth) (the Migration Act). Subsequently, his application for a bridging visa[16] was rejected under s 501(1) of the Migration Act by a delegate of the respondent in that case. On review of that decision, the Tribunal noted that, in his circumstances and because of s 501E of the Migration Act, Mr Tran was “not allowed to make” the application. The delegate’s decision was based on the merits of the application and made no reference to the validity of Mr Tran’s application. Referring to its power under s 43 of the AAT Act, the Tribunal said:
The power is to review a decision and having considered all material relevant to the original decision to itself arrive at a decision that is preferable or the proper decision. The original decision maker had the power in the present instance to decide as an initial step in the consideration process leading up to the grant or otherwise of a Bridging Visa whether the application was valid. By reason of the delegate proceeding to refuse the application there was inevitably an implied decision that the application was valid. It is this implied decision that the Tribunal is presently considering (see Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442; Li and Minister for Immigration and Multicultural Affairs (2000) 103 FCR 486).
[15] (2002) 36 AAR 7 per Deputy President Purvis.
[16] His claim was for a Bridging Visa E Subclass 050.
28.The Tribunal held that the implied threshold decision to treat the application as valid was wrong. Accordingly, it determined that Mr Tran’s bridging visa application was not a valid application.
29.In Stewart the preliminary issue had not been dealt with by the delegate who had determined the applicant’s claim on the merits. The Tribunal determined that it was unable to consider the threshold question and remitted the matter to the respondent. However, there, the Tribunal noted that there was no documentation or other evidence that the delegate had adverted to the question of the admissibility of the claim. That is not the situation in the instant case as evidenced by the correspondence between the MRCC and Mr Bedford or his representative.
30.In accordance with s 43 of the AAT Act, I am satisfied that I am able to exercise all the powers and discretions conferred on the MRCC delegate and that this extends to the issue of whether or not the threshold requirements of s 16 of the Act have been met by Mr Bedford.
ADMITTING THE CLAIM UNDER SECTION 16 OF THE ACT
31.For Mr Bedford’s claim to be entertained under s 16 of the Act, notice of an accident must have been given as soon as practicable after it happened and before his voluntary discharge from the army. Further, his claim for compensation must have been made within six months of the occurrence of the accident. Those requirements are subject to the provisos in the section.
Submissions
32.Mr Harding submitted that s 16 of the Act was applicable to Mr Bedford either directly or because of the provisos in the section. He submitted that Mr Bedford gave notice of the car incident in 1970 when he advised the duty corporal on his arrival at Singleton. In relation to the rope incident, he submitted that notice was given at the time by an attendance at the RAP or as soon as practicable by his reporting it at his discharge medical which resulted in his referral to an orthopaedic surgeon in November 1971. He also submitted that any non-compliance with the provision in relation to notice had not resulted in prejudice to the Commonwealth and, in any event, it was occasioned by mistake or through reasonable cause because he was not aware of his right to seek compensation. Mr Harding conceded that the claim by Mr Bedford for his injuries had not been made within six months but submitted that the delay was occasioned by the same mistaken belief which applied to his notice. Also, he submitted that Mr Bedford was not fully aware of the significance of some of the injuries, particularly his psychological condition, for many years.
33.Mr Clark submitted that the terms of s 16 of the Act were not met in Mr Bedford’s case and that his claim should not be admitted under that provision. He submitted that Mr Bedford did not give notice of the car incident or of any resultant injury therefrom until he lodged his claim in 2010. He conceded that reference was made by Mr Bedford to the rope incident during his service but only at the time of his discharge in November 1971. He submitted that this delay of many years in giving notice for the car incident, and some 13 months for the rope incident, prejudiced the Commonwealth’s capacity to investigate the matters. He also submitted that the delays in giving notice and in making a claim were due to ignorance of the requirements on Mr Bedford’s part, and not mistake or reasonable cause.
Notice
34.Unlike later compensation legislation,[17] s 16(1) of the Act requires notice of the “accident” rather than a specific injury. However, in addition to the requirement that the notice be given as soon as practicable after the accident, the notice must set out the matters in s 16(2) of the Act. This requires particulars of the person to be included in the notice as well as particulars, in ordinary language, of the cause of the injury and the time when it happened. Accordingly, the focus of the notice requirements in s 16 is the injury which is alleged to have been caused in the accident as well as the accident itself.
[17] See s 53 of the 1988 Act.
35.In Siemsen and Comcare[18] (Siemsen), the Tribunal held that an entry in service medical records could constitute notice of an injury under the Act. In that case, the Tribunal found that the records disclosed the information required by s 16(2) of the Act. Mr Bedford’s RAP records include a complaint for gravel rash to his right knee. However, unlike the situation in Siemsen, no further information is provided in that record. The RAP reference does not constitute notice as at it does not comply with the terms of s 16(2) of the Act.[19] Mr Bedford’s RAP records do not refer to treatment or complaint of any matter psychological, his left knee, back or right wrist.
[18] (1999) AATA 871.
[19] For a similar outcome, see Campbell and Military Rehabilitation and Compensation Commission [2009] AATA 273.
36.There is no record in Mr Bedford’s service documents of the car incident report resulting from his advice to the duty corporal at Singleton. In any event, it was not suggested by him that he advised the duty corporal of “the injury” because, on his and Mr Barrie’s evidence, there were no apparent injuries at that time. Any reference to the car incident to the duty corporal does not constitute notice by Mr Bedford as it does not comply with the requirements in s 16(2) of the Act.
37.Mr Bedford’s reference to the rope incident in his discharge medical documentation constitutes notice of that event. However, given the requirements in s 16(2) of the Act, this comprises notice of the back injury only as no reference is made to the other conditions. His description of the right wrist predating service with “no further trouble” is notice of a denial of injury at that time for that condition. Mr Bedford’s claim form is the first notice given by him in relation to knees, right wrist or psychological condition and it does not distinguish between the car incident and the rope incident for causation. This was lodged almost 40 years after his service and I am satisfied that notice of those conditions was not made as soon as practicable and before leaving his service with the Commonwealth in accordance with the first part of s 16(1) of the Act.
38.Although Mr Bedford said he attended the RAP for his back condition after the rope incident, this is not supported by his RAP records. Also, his doing so is not consistent with his statement that “surely an examination should have been undertaken at the RAP”. This leaves me satisfied that he did not attend the RAP immediately after the rope incident. There was also inconsistency in the evidence of the timing of the rope incident. Mr Bedford referred in his discharge medical examination to a back injury which occurred 13 months previously and he described the rope incident. This would place the injury as occurring in October 1970. Mr Brian described it as happening in July 1970.
39.Mr Bedford’s explanation for the absence of reference to his back condition in his RAP records was its intermittent nature such that it was not troubling him at the times that he attended the RAP. I do not accept that explanation by him for a condition which he described as troubling him throughout his service. On the several occasions[20] he attended the RAP he had the opportunity to refer to his back condition. I am satisfied that Mr Bedford’s first notice of the back condition was in November 1971 in his discharge documentation and I am satisfied that notice of that condition was not made as soon as practicable in accordance with the first part of s 16(1) of the Act.
[20] See paragraph 14 (above).
The proviso in s 16 of the Act
40.The absence of timely notice by Mr Bedford for the alleged “accident” and claimed conditions, alone, does not preclude him from meeting the notice requirements under s 16(1) of the Act. His claim for those matters may still be considered if the want of timely notice does not prejudice the respondent or if it was occasioned by mistake or other reasonable cause.[21]
[21] The “absence from Australia” factor does not arise in this matter.
Prejudice
41.In relation to the issue of prejudice to the respondent, I note the decision of the Tribunal in Re Tierney and Reserve Bank of Australia[22]. There, the following reference is made to the purpose of the notice requirement as it appears in s 53(1) of the 1988 Act, which is not materially different from the provision under consideration in the Act:
Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act.
[22] (1988) 15 ALD 534 at 535.
42.I am satisfied that the respondent would be prejudiced if it were required to consider the claims in relation to Mr Bedford’s knees, right wrist and psychological condition. This is on the basis of the absence in Mr Bedford’s records of a complaint for those conditions, apart from a gravel rash to the right knee, until 2010.[23] Mr Bedford has not provided a basis for these to be related causally to his service and there are no witness statements of support. The respondent’s endeavours to locate material contemporaneous with Mr Bedford’s service have been unsuccessful. In that regard, Mr Bedford’s documents in the Central Medical Record were examined by the Regional Records Manager of the Department of Veterans’ Affairs and this yielded only limited documentation from its search and none of these related to the knees or right wrist. Also, the Director of Psychology’s search of Mr Bedford’s service records revealed no entries of any psychological condition. Those avenues having been explored by the respondent, it is more probable than not that any further enquiries by the respondent would achieve the same results. The respondent was not given the opportunity to investigate those matters in a timely manner and I am satisfied that it would be prejudiced if it were required to do so almost 40 years after the incidents of causation are alleged to have occurred. Despite that prejudice, consideration must still be given to the alternative component of the proviso in s 16 of the Act as to whether the delay was occasioned by mistake or other reasonable cause.[24]
[23] The reference to the right wrist in his discharge documents is to an absence of complaint for such a condition.
[24] See Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642 at [11].
43.In relation to his back condition, Mr Bedford identified both this and its causal connection to the rope incident in his discharge documentation. That documentation also includes a reference by him to compensation. Indeed, there is an assessment of incapacity of 5%. There is supportive material from Mr Brian as to the fall in the rope incident even though there are inconsistent accounts of the timing of the incident. There is a report from an orthopaedic surgeon in relation to Mr Bedford’s back as at the time of his discharge. Mr Bedford has identified practitioners who treated him for his back condition in 1981 and 1991 though, in his statement, he wrote that his exhaustive searches have been unable to locate them. Nonetheless, the circumstances relating to Mr Bedford’s back condition are not the same as for his knees, right wrist and psychological condition. I am unable to find that the respondent would be prejudiced by his giving of notice in November 1971 in relation to his back condition and, accordingly, the notice requirements are met in relation to his back condition.
Mistake or other reasonable cause
44.Mr Harding submitted that any late notice by Mr Bedford in relation to his knees, wrist and psychological condition was due to mistake on his part or other reasonable cause.
45.As noted above, the focus of the notice component of ss 16(1) and (2) of the Act is the “accident” and the injury. The only events relied on by Mr Bedford were the car incident and the rope incident.[25] Mr Bedford’s evidence was that he knew he had to advise Army authorities of the car incident because it was like being in the workplace. He gave this as the reason for informing the duty corporal of the car incident. He did not advise the corporal of an injury but this was not due to mistake because his evidence was that he was not aware of any injury at that time. In relation to the rope incident, Mr Bedford believed that timely notice had been given because of the comment by the sergeant on duty that a report would be made to the medical officer. There is no evidence of any such report but Mr Bedford was of the belief that the report would be made and, accordingly, he was not mistaken about the need for Army authorities to be advised. More significantly, there is no evidence that, in the rope incident, he experienced injury to any part of his body apart from his back. In that situation, failure to give notice is not due to mistake on his part.
[25] Additionally, he referred to the wearing of boots as being causally associated with his feet and ingrown toe nail problems but these conditions are not for consideration in this matter.
Mr Harding submitted that there was a long delay before Mr Bedford became aware that his conditions were related to his service and that this constituted reasonable cause for late notice. Mr Bedford gave no time-frame within which he experienced problems with his wrist. His evidence was that he experienced knee problems from before 1990. That does not constitute reasonable cause for delaying a further 20 years before giving notice in his claim form in February 2010. Mr Bedford’s evidence was that he became aware of a psychological problem in 2009 after a consultation with his treating doctor. I am satisfied that such a delay in learning that he suffered a psychological condition amounts to reasonable cause for not giving notice until February 2010. Accordingly, the notice requirements are met in relation to his psychological condition.
The claim
Because of the notice issues, Mr Bedford’s claim for compensation may be considered in relation to his back and psychological conditions. The claim must have been made within six months from the occurrence of the accident. Mr Bedford’s claim was made almost 40 years after whatever aspect of his service was causally associated with those conditions. However, failure to make a timely claim will not prevent its consideration if the failure was occasioned by “mistake” or “other reasonable cause”.[26] Mr Harding submitted that Mr Bedford was mistaken about his understanding of the right to make a claim under the Act. Mr Clark submitted that Mr Bedford’s failure to make a timely claim was not due to any mistake by him but to his ignorance of the relevant time-frame.
[26] See s 16((1)(ii) of the Act.
The Act distinguishes between ignorance and mistake with only the latter being of relevance under the Act. The distinction between the two concepts was referred to in Telstra Corporation v Roycroft[27] by North J who described the relevant authority as establishing the following propositions:
[27] [1997] FCA 774
1. A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.
2. A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.
3. A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.
4. It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.
His Honour went on to point out that there was a thin line between mistake and ignorance, but said:
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.
There is conflicting evidence in relation to Mr Bedford’s knowledge of the claim process under the Act. His “Discharge History Questionnaire” alerted him to compensation issues and he completed the “yes” response to the question about compensation. Some knowledge of the claim process is also reflected in the letter[28] written to the respondent by Mr Rowse after Mr Bedford had discussed the matter with him. Mr Rowse did not advise that Mr Bedford knew nothing about the claim process or that he believed it did not apply to him. Rather, he advised the respondent that Mr Bedford had advised him that he had not been aware that he had to lodge a claim within a certain time-frame and also that he was not informed by his superiors that a claim had to be lodged at the time. Despite those clear indications that Mr Bedford knew of the right to make a claim, his evidence was that he incorrectly understood that only returned service-men could do so. I do not accept his evidence in that regard and I am satisfied that Mr Bedford knew of the right to make a claim but had no knowledge of the time-frame within which a claim was to be lodged. He was not mistaken about those limits. He simply was unaware of them. I am satisfied that this constitutes ignorance on his part which is not embraced by the proviso in s 16 of the Act.
[28] The letter is undated but received by the respondent on 10 March 2010.
No submission was made by Mr Harding concerning reasonable cause for Mr Bedford’s back claim being late. Mr Bedford had problems with his back since service and was treated from 1981. I am satisfied that there is no reasonable cause for delaying his claim for that condition until 2010, some 40 years after he described symptoms of his back problem at the time of his Army discharge.
Mr Bedford was noted by his treating doctor to have psychological problems from 2009. Mr Harding submitted that this provided justification for delaying his claim until 2010. For “other reasonable cause” to provide justification for a late claim, there must be a nexus between the “reasonable cause” and the delay.[29] Further, there must be evidence of something more than mere ignorance of the law before reasonable cause will arise.[30] I am satisfied there is a nexus between Mr Bedford’s claim in 2010 and his late understanding that he had a psychological problem. The late claim was not due to ignorance of the law concerning claims but to his lack of knowledge of his psychological status.
[29] See Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at 673, 674 and Re Harbutt and Department of Defence (1998) 51 ALD 159 at 163.
[30] See Commonwealth v Connors (1989) 86 ALR 247 at 252 per Northrop and Ryan JJ.
I am satisfied that the requirements under section 16 of the Act have been met by Mr Bedford, but only in relation to his claim for “psychological” matters. This means that the claims for back, knees and right wrist are not to be admitted by the respondent; but that the claim for “psychological” may be admitted.
COSTS
At the request of both parties, the issue of costs in this matter is reserved.
DECISION
The Tribunal sets aside the decisions under review and substitutes its decisions that the Tribunal has jurisdiction to determine whether the applicant’s claims for “knees”, “back”, “right wrist” and “psychological” may be admitted for determination under s 16 of the Commonwealth Employees’ Compensation Act 1930 (Cth) and that only the claim for “psychological” may be so admitted.
I certify that the preceding 55 (fifty five) paragraphs are a true copy of the reasons for the decision herein of MR R G Kenny, Senior Member.
.............[Sgd]...........................................
Associate
Dated 6 June 2012
Date(s) of hearing 24 April 2012 Counsel for the Applicant Mr A Harding Solicitors for the Applicant Terence O'Connor Counsel for the Respondent Mr C Clarke Solicitors for the Respondent Australian Government Solicitor
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