JOHN SLADE and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2009] AATA 716

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 716

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3219

VETERANS’ APPEALS DIVISION		)
Re		JOHN SLADE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date22 September 2009

PlaceCoffs Harbour, NSW

Decision The decision under review is affirmed.

.................[sgd].........................

Mr S. Webb, Member

CATCHWORDS

Military compensation - injury claim - post traumatic stress disorder - failure to provide notice within specified time - delayed diagnosis - disputed facts - prejudice to Commonwealth - delay making claim not occasioned by mistake or other reasonable cause - decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 s 124

Commonwealth Employees Compensation Act 1930 s 16

Comcare v Luck (1999) 29 AAR 403

Commonwealth of Australia v Connors (1989) 86 ALR 247

Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534

Telstra Corporation v Roycroft (1997) 77 FCR 358

REASONS FOR DECISION

22 September 2009 Mr S. Webb, Member         

1.      John Slade served in the Royal Australian Air Force (RAAF). He worked with servicemen who were killed in the Red Sales Aerial Acrobatic Team disaster in 1962. He alleges that he was directly involved at the crash site in the immediate aftermath of the disaster.[1] Mr Slade says that he suffered from post traumatic stress disorder (PTSD) as a result of those experiences, but he made no claim for compensation or medical treatment at that time or thereafter during the remaining period of his RAAF service until 1972. Unfortunately for Mr Slade he was involved in the Granville train disaster in 1977. Subsequently in 1995 he was diagnosed with PTSD.[2] In 2006 he made a claim for compensation, asserting that his PTSD was caused by the Red Sales disaster in 1962.[3] The Military Rehabilitation and Compensation Commission determined to reject his claim by primary determination and on reconsideration.[4] Mr Slade is unhappy with this result and has applied for review.

[1] T14, T24, Exhibit A1 and Exhibit A2.

[2] T11 folios 77 to 81.

[3] T4.

[4] T13 and T28, respectively.

2.      The issue to be determined is whether Mr Slade’s PTSD is an injury in relation to which he is entitled to compensation. It is first necessary, however, to determine whether Mr Slade’s claim for compensation is precluded for want of proper notice.

3.      Mr Slade says that he was traumatised by the Red Sales disaster in 1962. His evidence is that he attended the crash site under orders to search for explosive devices from ejector seats. He says that he saw body parts and recognised the torso of a friend. He told me that the enormity of what had happened overcame him and he broke down in his car at the scene. He asserts that co-workers in his unit and his supervisors were aware that he had an adverse psychological reaction, and his nickname changed from “Slogger” to “Slobber”. Mr Slade told me that he was taunted by other servicemen and he endured sleepless nights. In his submission he was anxious, irritable, intolerant and bad-tempered thereafter. He said that he was offered no medical help or counselling and he did not seek any. Mr Slade related speaking with Warrant Officer Des Elliot several weeks later about his feelings and being told that his reaction was normal and ‘you will get used to it’. Mr Slade asserted that he was completely ignorant of the need to notify the RAAF about any alleged injury.

4.      In Mr Slade’s submission, there is no prejudice to the Commonwealth arising from the delay in making his claim for compensation – any difficulty obtaining records concerning attendees at the Red Sales crash site, for example, is of equal difficulty to both sides, in fact it may be easier for the Commonwealth than anyone else as the Commonwealth has far greater resources.

5.      Mr Slade’s claim rises for consideration under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The transitional provisions of that Act provide that if the claimed injury occurred before the commencement day, the claimant is not entitled to compensation if compensation would not be payable under the governing legislation that was in force when the alleged injury occurred.[5] In this case the alleged injury is said to have occurred in 1962, on the day of the Red Sales incident. It follows, therefore, that reference must be made to the Commonwealth Employees Compensation Act 1930 (the 1930 Act). Under the SRC Act and the 1930 Act, before a claim for compensation can be admitted proper written notice of the injury must be made. The notice provisions of the 1930 Act require that a claim will not be admitted unless it is made within six months of the accident, although such a claim may be considered in certain circumstances: if the Commonwealth is not prejudiced by the failure to make the claim within the specified time and that the failure was occasioned by mistake, absence from Australia or other reasonable cause.[6] Under subsections 16(2) and (3) of the 1930 Act proper notice of an injury requires that the person must serve written notice of the details of the injury and the alleged cause in ordinary language on an authorised person.

[5] Section 124, Safety, Rehabilitation and Compensation Act 1988.

[6] Section 16, Commonwealth Employees Compensation Act 1930.

6.      I am reasonably satisfied that Mr Slade did not provide proper notice of any alleged injury arising from the Red Sales incident in 1962 at the time or within six months thereafter. It appears that no written notice was given until Mr Slade lodged a claim for compensation on 14 March 2006. I am prepared to accept that Mr Slade’s compensation claim form, in terms and with his attached statement, is proper notice of the alleged injury that occurred in 1962.[7]

[7] Comcare v Luck (1999) 29 AAR 403 at 417.

7.      Mr Slade’s evidence that he informed Warrant Officer Elliot of his adverse reaction to the Red Sales incident within weeks of that incident occurring is not evidence of proper notice being given for the purposes of s 16 of the 1930 Act. There are a number of things to say about this. Mr Slade’s account is not corroborated by any material evidence. Warrant Officer Elliot was not called to give evidence. If the conversation occurred, and that is not reliably established, the content is far from clear. Mr Slade’s account is not precise; it can be accepted that there may be difficulty recalling the precise content of a conversation that allegedly occurred more than 47 years ago. Even if strict compliance with the form of notice provisions set out at s16 is not required,[8] from this distance, even if I accept that the conversation between Mr Slade and Warrant Officer Elliot occurred, I cannot determine whether the conversation was in sufficient terms to alert Warrant Officer Elliot to the existence of an alleged injury. This is not sufficient to satisfy the notice requirements of the 1930 Act.

[8] Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535.

8.      Mr Slade’s assertion that the Commonwealth is not prejudiced by his failure to give proper notice of the alleged injury is not made out. As it appears to me, the Commission has encountered difficulty obtaining evidence, including contemporaneous documents, concerning the Red Sales incident and Mr Slade’s alleged attendance at the crash site. No such documents or relevant witnesses have been identified. These difficulties are perhaps not surprising after the passage of 47 years. Nevertheless, establishing that Mr Slade was in attendance at the crash site, as he alleges, is essential to any proper assessment of his claim. Mr Slade’s evidence is not corroborated by contemporaneous records and no witnesses were called to confirm his account. I accept that obtaining such contemporaneous records and identifying relevant witnesses is attended by difficulty and uncertainty after the passage of so many years. I note the evidence concerning the unsuccessful searches conducted by the Commission for the purposes of these proceedings.[9] It is possible that documents may exist and may be identified by further investigations and searches, but that is far from certain. Considering these difficulties in relation to evidence concerning elemental aspects of Mr Slade’s claim, I am satisfied that the Commonwealth is prejudiced by Mr Slade’s delay in giving proper notice of the alleged injury. I accept that Mr Slade faces similar difficulties locating evidence to corroborate his account of events at that time, but that is not to the point of subsection 16(1)(a)(i) of the 1930 Act.

[9] T27 and Exhibit R4.

9.      By Mr Slade’s account, he was not aware of any requirement to provide notice of the alleged injury; he said that he was ignorant of any possible entitlement to compensation at that time. While mistake may excuse a failure to provide proper notice of an injury for the purposes of s 16 of the 1930 Act, ignorance of rights does not. [10] Unfortunately for Mr Slade, ignorance is not consistent with a mistake.

[10] Telstra Corporation v Roycroft (1997) 77 FCR 358 at 364-369.

10.     There is no evidence that Mr Slade’s failure to give proper notice was occasioned by his absence from Australia at any relevant time.

11.     Mr Slade asserts that the RAAF did not inform him of his compensation rights and obligations in relation to notice of any alleged injury and failed to provide him with any counselling after the Red Sales incident. These failings in his submission constitute other reasonable causes for his failure to give notice. I do not accept that submission. Ignorance of rights cannot itself constitute a ‘reasonable cause’ for the purposes of subsection 16(1)(a) of the 1930 Act.[11] I note in passing that it is not established that the RAAF failed to inform Mr Slade of his rights. Even if I proceed on the basis that the conversation with Warrant Officer Elliot occurred, as I have said, the terms of that conversation cannot clearly or reliably be discerned from this distance.

[11] Commonwealth of Australia v Connors (1989) 86 ALR 247 at 251-252.

12. Considering all of the circumstances, Mr Slade’s failure to provide proper notice of his claimed injury cannot be simply overlooked or excused in the terms provided by s 156 of the 1930 Act. It follows, that Mr Slade’s claim for compensation cannot be admitted for want of proper notice and must fail by application of s 124 of the SRC Act. The decision under review must, therefore, be affirmed.

13.     It is appropriate to observe that even if I am incorrect in relation to the question concerning notice, Mr Slade’s claim would not succeed.

14.     The documents reveal that Mr Slade was subject to periodic medical assessments during the period of his service, including assessments in October 1962, March 1965 and June 1971.[12] As can be seen, these medical assessments included psychological or psychiatric assessments. On 29 October 1962 Mr Slade’s emotional stability was recorded to be normal and his mental capacity was recorded to be “alert”.[13] Mr Slade was medically assessed prior to his discharge in 1972 and there is no record of any psychological or psychiatric complaint or injury.[14]

[12] T3 folios 44, 48 and 51 respectively.

[13] T3 folio 44.

[14] T3 folio 53.

15.     On that evidence PTSD was not present prior to 1972.

16.     There is no probative and reliable evidence that Mr Slade suffered from a diagnosable psychiatric illness prior to the Granville train disaster in which he was involved in 1977. The evidence of Dr Wade at the highest posits the possibility of PTSD being present prior to the train disaster – “There could be evidence there of the start of PTSD”; “…there is a reasonable possibility and, indeed, a likely outcome that if the Granville train disaster had not happened that symptoms would still have developed from your RAAF career that still may have developed into a Post Traumatic Stress Disorder that then reached diagnostic thresholds”.[15] Noting the evidence in Exhibits R2 and R3 and the opinion of Dr Skinner in Exhibit R1, I am reasonably satisfied that Mr Slade’s assertions concerning the existence of a delayed onset PTSD prior to the Granville train disaster in 1977 are not made out. For this reason his case must fail.

[15] Exhibit A1, pp 1-3. See also T26.

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.

Signed:  ...................[sgd]...........................................
  J. Lakin, Associate

Date of Hearing  20 August 2009
Date of Decision  22 September 2009
Applicant self-represented
Counsel for Respondent  Mr Brendan Kelly