Leach and Comcare (Compensation)
[2018] AATA 1632
•12 June 2018
Leach and Comcare (Compensation) [2018] AATA 1632 (12 June 2018)
Division:GENERAL DIVISION
File Number(s): 2016/4119
Re:Craig Leach
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal: Deputy President Dr P McDermott RFD
Date:12 June 2018
Place:Brisbane
The decision under review is affirmed.
.........................[SGD].........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – Claim for mental injury arising out of the applicant’s employment – application of s 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the applicant failed to give notice of injury as soon as practicable after he became aware of injury – whether the respondent would be prejudiced if notice was treated as a sufficient notice – whether the failure to give notice resulted from ignorance, mistake or any other reasonable cause – notice was not given – no exceptions apply – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)CASES
Leach v Ross & Anor [2013] QSC 333
The Commonwealth vVerwayen (1990) 170 CLR 394
Re Muras and Department of Defence (1998) AATA 645REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 June 2018
BACKGROUND
The applicant was employed by the Australian Federal Police (“AFP”) between
3 February 1986 and 21 November 1997. The majority of the applicant’s work was as a detective in organised crime and drug related areas.[1] [Publication restricted pursuant to section 35(3)(b) of the Administrative Appeals Tribunal Act 1975].
[1] Exhibit D, Report of Dr Benjamin Duke dated 17 March 2017, p. 3.
As part of this investigation process, the applicant became aware in 1996 that he was the subject of surveillance and “special projects”, which included telephone intercepts, hidden cameras and listening devices.
On 23 May 1997 the applicant’s employment was suspended based on suspicions that he had committed a disciplinary offence, being threats of physical violence against members of ISA and other members of the AFP during a security interview on 8 April 1997. On 21 November 1997, the applicant’s employment was formally terminated.[2]
[2] Exhibit A, T-documents, T6.1.
The applicant lodged a workers’ compensation claim on 8 March 2016 with respect to a “mental injury” caused as a result of his employment with the AFP.[3]
[3] Exhibit A, T-documents, T8.
ISSUE
The issue before this Tribunal relates to a preliminary issue, specifically whether the respondent is entitled to rely on the defence outlined in section 53(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).
CLAIM HISTORY
On 6 May 2016, the respondent made a determination that the applicant’s claim for compensation was excluded by operation of section 53(1)(a) of the SRC Act, as the applicant had not given notice of the injury as soon as practicable after he had become aware of the injury.[4] For completeness, it was also determined that on the balance of probabilities there was insufficient medical evidence to support the applicant’s claim that his employment with the AFP was more than a mere contributing factor to his condition.[5]
[4] Exhibit A, T-documents, T16, p.49.
[5] Ibid at p.50.
The applicant requested a review of the determination of 6 May 2016.[6] On 1 July 2016 the original determination was affirmed.[7] The applicant then lodged an application for review with this Tribunal.[8]
[6] Exhibit A, T-documents, T18, p.55.
[7] Exhibit A, T-documents, T19, p.59.
[8] Exhibit A, T-documents, T1.
On 12 January 2017, a telephone conference was held between the parties. The applicant contends that at this time the respondent stated that they would not rely on section 53 of the SRC Act. Shortly after this telephone conference, the applicant attended an independent medico-legal appointment with Dr Benjamin Duke, psychiatrist. On 19 April 2017 another telephone conference was held, after the respondent received advice about the AMP insurance policy.
LEGISLATIVE FRAMEWORK
Under section 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. “Injury” is defined in section 5A(1), which relevantly provides:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment; ...
“Disease” is defined in section 5B(1), which relevantly provides:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Section 5B(3) provides that, in the SRC Act, “significant degree means a degree that is substantially more than material”.
Sections 5A and 5B were inserted into the SRC Act on 13 April 2007. The amending Act provides that the definitions in those sections apply only to injuries sustained on or after that date. The applicant claims that he sustained his injury before that date when the definition of “injury” in section 4(1) of the SRC Act corresponds to section 5A(1) and when section 4(1) provided:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
Section 53 of the SRC Act relevantly provides:
Section 53 – Notice of injury or loss of, or damage to, property
(1) 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; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.
(2) This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.
(3) 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 the 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.
EVIDENCE
Applicant’s evidence
The applicant’s statement dated 27 September 2017 outlines that he was involved in the murder investigation of the Assistant Commissioner and towards the end of his career he became the subject of an investigation which involved “round the clock physical surveillance and special projects installed in [his] home”. The applicant contends that the special projects were illegally installed in his home through false sworn affidavits. The applicant has attempted to access these affidavits but has not been successful. The applicant contends his access has been denied through the freedom of information process by ISA.
The applicant submits that no evidence was found against him as a result of the investigation however the “relentless, unwarranted ISA action” resulted in him suffering from “a chronic mental injury”. The applicant also submits he continued to be harassed after his employment was terminated with the AFP, particularly in 2001 when he noticed he was being followed by a former colleague.
Psychological injury
The applicant states that around October 1996, after attending a VIP close protection training course in Canberra, he began to feel the first signs of suffering a psychological injury, however he considered that a psychological injury would ruin his career so he remained in denial. As part of the course, the applicant underwent a mental state evaluation by Ms Sonja Jacob, psychologist, who voiced concerns regarding the applicant’s results. The applicant informed Ms Jacob that “there was nothing wrong” although told Ms Jacob at another meeting that he was the subject of an unwarranted and lengthy investigation process. The applicant submits he asked Ms Jacob to keep their discussions confidential as he was concerned about an adverse mental assessment finding which could negatively affect his career. The applicant submits that Ms Jacob continued to “check in” on the applicant over the next six months but was always reserved in their discussions.
Ms Jacobs referred the applicant for specialist treatment to Dr Peter Jones of Davidson Trahaire Psychorp.[9] The applicant stated that he interpreted this referral as being for anger management treatment and as such he was resistant to the treatment.
[9] T-Documents, T14.3, p.45.
The applicant stated that he was later asked about his wellbeing by Mr Robert McDonald. He told Mr McDonald that the investigation process was starting to affect his work but it would be fine once the investigation ceased. Two weeks later, on 3 February 1997, the applicant was advised to take two weeks sick leave, recorded as “acute reactive stress and anxiety”.[10]
[10] Supplementary T-Documents, ST3, p.72.
On 23 May 1997 the applicant was given his termination notice and was suspended on full pay. In November 1997, the applicant was made redundant and his employment was officially terminated.
Ignorance and/or any other reasonable cause
The applicant submits that as a result of the investigation process, he became angry, violent and began to abuse alcohol, which led to mistakes at work. The applicant states that prior to 1996 he was only a social drinker.
The applicant contends that the AFP were aware that he had suffered a psychological injury during his employment, particularly because a telephone conference note comments “for Comcare”.[11]
[11] T-Documents, T14.2, p.44.
The applicant states that he undertook to not mention the investigation process to anyone otherwise he would face disciplinary action.[12] The applicant contends that he avoided getting medical assistance throughout most of his life until 2014 when his wife told him that he needed help otherwise she would leave him. This prompted the applicant to seek medical assistance and he was referred to Mr Cameron Brown on a mental health plan. The applicant was subsequently diagnosed with depression.
[12] Supplementary T-Documents, ST1, p.64.
AMP insurance policy
The applicant states that in 2012 he took out a life insurance policy including income protection with AMP, to cover his income in case of a serious accident or illness. At the time, the applicant was working on a blast crew in the mining industry. In late 2014, the applicant called Mr Robert Broadley, his insurance broker, to cancel the policy as he was “sick and I can’t work, so I can’t afford to keep paying for the insurance policy”. During this conversation the applicant told Mr Broadley he had been diagnosed with depression, to which Mr Broadley advised that depression was an illness covered under his policy.
Mr Broadley provided a statement dated 20 September 2017 which confirmed this version of events.
The applicant states that in early 2016, after a period of sobriety, he analysed his mental state and realised that the investigation process was the root cause of all of his problems, including alcohol abuse. The applicant submits that he only opened up about the investigation process with Mr Brown after 18 months of seeing him.
AMP Claim
On 17 October 2014, the applicant submitted a claim to AMP for “depression” as a result of “stress,”[13] with the symptoms noted as commencing on 1 June 2014.[14] On 2 December 2014, the applicant’s claim was accepted. [15]
[13] Exhibit I, Tab 10.
[14] Exhibit I, Tab 11.
[15] Exhibit I, Tab 9.
A large majority of the AMP records indicate that the applicant’s condition had been caused from the stress and anxiety surrounding his financial situation, his court case and his inability to find suitable work. However the records also include a report from Mr Brown dated 24 March 2016 which notes that the applicant’s condition and inability to maintain employment is directly linked to the fact that his employment was terminated with the AFP.[16] In his report Mr Brown also considered that on 11 March 2016, after a period of reduced alcohol consumption, the applicant realised his issues stemmed from the ISA investigation process and his employment termination with the AFP. [17] Further, Mr Brown considered that the escalation of the applicant’s symptoms more recently was an exacerbation of the underlying issues developed after he left the AFP. [18]
[16] Exhibit I, Tab 40.
[17] Exhibit I, Tab 40.
[18] Exhibit I, Tab 40.
Dr Benjamin Duke, psychiatrist
Dr Duke provided two reports dated 17 March 2017 and 29 August 2017.[19]
Report of Dr Duke dated 17 March 2017
[19] Exhibit D, Reports of Dr Benjamin Duke.
This report of Dr Duke outlines the following history from the applicant:
(a)the applicant did not have any mental health problems prior to 1995;
(b)as a result of the AFP’s investigation process the applicant became very angry and was referred to Ms Sonja Jacob, psychologist, for treatment. After three consultations, Ms Jacob referred the applicant to Dr Peter Jones, psychiatrist, and the applicant visited Dr Jones on approximately five occasions;
(c)the applicant had no contact with mental health services between the time he last saw Dr Jones and 2014 when he saw his general practitioner;[20] and
(d)the applicant has a pattern of poor occupational functioning and excessive alcohol consumption.[21]
[20] Exhibit D, Report of Dr Benjamin Duke dated 17 March 2017, p.6.
[21] Exhibit D, Report of Dr Benjamin Duke dated 17 March 2017, p.7.
Dr Duke diagnosed the applicant with chronic dysthymia[22] as a result of the applicant’s employment with the AFP.[23] Dr Duke considered that there was a causative link between the applicant’s employment with AFP, his chronic dysthymia and his alcohol misuse/abuse.[24]
[22] Exhibit D, Report of Dr Benjamin Duke dated 17 March 2017, p. 8.
[23] Exhibit D, Report of Dr Benjamin Duke dated 17 March 2017, p.9.
[24] Exhibit D, Report of Dr Benjamin Duke dated 17 March 2017, p.10.
Dr Duke considered that given the history, it is difficult to pinpoint whether the applicant is currently impaired or incapacitated for work as a result of the condition. The applicant’s periods of impairment have also likely fluctuated over the years. Dr Duke noted that the psychiatrist records were unable to be located and this was likely due to the fact that significant time had elapsed between the time the applicant received treatment and the time of writing his report, so the records have likely been destroyed. In light of this, Dr Duke considered it was difficult to specifically comment on whether the applicant suffered a diagnosable injury at the time of his employment with the AFP.
It was also noted that the applicant’s psychological condition has likely fluctuated over the years in response to other stressors such as the reported embezzlement of funds from a company established with his father.
Supplementary report of Dr Duke dated 29 August 2017
Dr Duke provided a supplementary report following disclosure of the applicant’s AMP insurance policy records. In this supplementary report Dr Duke considered that the applicant had been primarily diagnosed with a major depressive disorder with comorbid alcohol difficulties, and these diagnoses appeared to have been made in the context of the applicant’s financial and legal stressors related to the court proceedings. Dr Duke further noted that it is only in one report of the psychologist from May 2016 that any reference is given to the applicant’s employment with AFP and possible post-traumatic stress disorder (“PTSD”).
Dr Duke considered that it was likely that at some stage in the mid-1990s the applicant suffered from alcohol misuse and elevated stress levels as a result of his eventual termination of employment with AFP. Dr Duke considered that there was no evidence to support the presence of any mental health difficulties between the period of 1997 and 2013. There was also no evidence to support a finding or a history of PTSD.
Dr Duke stated that the disclosure of the AMP records changed his original opinion on the applicant with regards to the causal factors. Dr Duke considered that he diagnosed the applicant with chronic dysthymia as a result of his employment with the AFP, however the applicant’s condition should be more accurately described as a recurrent major depressive disorder that had its origins in 2013, in the context of the applicant’s financial and legal stressors.
Dr Duke further commented that the disclosure of the AMP records raises questions of the reliability of the applicant as a historian, and particularly noted comments made by the trial judge in unrelated proceedings. Dr Duke further commented that the applicant began to recall traumatic memories about his employment with the AFP nearly 20 years after ceasing work at the time when his financial situation was not optimal.
The applicant was given the opportunity to put his own questions to Dr Duke, and he asked questions in relation to his time working as a casual security guard between 2003 and 2008. The applicant questioned whether Dr Duke’s opinion would change if he knew that the applicant had taken significant time off work, to which Dr Duke responded that without knowing the specific context as to why the applicant took time off work it would be difficult to assess any relevance. The applicant also questioned whether Dr Duke’s opinion would change if he knew that the applicant’s financial position was positive at the time he lodged the claim with Comcare, and Dr Duke accepted that it would change his comment about the applicant’s financial position.
Mr Cameron Brown, psychologist
Letter of Mr Cameron Brown dated 18 November 2014
The applicant attended six sessions with Mr Brown, where the focus was on reducing the applicant’s symptoms of anxiety and depression. Treatment focused on the applicant thinking rationally about his negative financial situation, as opposed to ruminating. Mr Brown recommended ongoing therapy.
Letter of Mr Cameron Brown dated 24 May 2016
Mr Brown considers that the applicant is suffering from post-traumatic stress disorder (“PTSD”) and major depressive disorder. He has opined that the applicant’s PTSD condition is chronic, and was caused by the “threat to his professional integrity and privacy due to the surveillance and subsequent termination”. Mr Brown considers that it is relatively common for persons suffering from PTSD and related disorders to repress feelings and memories of an event and rely on maladaptive coping mechanisms such as excessive consumption of alcohol.
The case of Leach v Ross & Anor [2013] QSC 333
The case of Leach v Ross & Anor [2013] QSC 333 was tendered as evidence with respect to the applicant’s creditability.[25] In this case the trial judge made comments about having “strong reservations as to the credit of both the plaintiff and the defendant”.[26] The trial judge also noted that the applicant’s evidence was reduced by a desire not to admit to contraventions of the relevant legislation.[27] However, the applicant’s evidence in the end was preferred.
[25] Exhibit E.
[26] Leach v Ross & Anor [2013] QSC 333, [3].
[27] Leach v Ross & Anor [2013] QSC 333, [4].
SUBMISSIONS
Applicant’s Submissions
With regards to the section 53 SRC Act defence, the applicant contends that he has now suffered additional stress and anxiety as a result of the respondent changing their position to re-rely on this defence.
The applicant submits that at a telephone conference the respondent elected to unequivocally waive their right to a section 53 defence. The applicant also submits that the principles in The Commonwealth vVerwayen (1990) 170 CLR 394 should be applied, which did not allow the Commonwealth to plead the section 53 defence when it had been previously waived.[28] The applicant included the following extract from the decision in his submissions:
“If the Commonwealth were now allowed to depart from the assumed state of affairs, the detriment which Mr. Verwayen would sustain could not be measured in terms merely of wasted legal costs. The past stress, anxiety, inconvenience and effort which were involved in the pursuit of the proceedings would be rendered futile. More important, Mr. Verwayen would be subjected to the potentially devastating effects of a last-minute denial of an expectation of just compensation for his injuries in circumstances where those injuries were sustained in the course of the service of the Commonwealth by reason of the negligence of another or others in that service and where that expectation of just compensation had been deliberately induced by the Commonwealth…” [29]
“… When a right has been waived in the sense defined by Lord Hailsham (and it is in this sense that it is used in this judgment), it is unnecessary to consider whether any other party has acted in reliance on the release or abandonment: the right is abandoned once and for all”.[30]
“Waiver, in the sense relevant for the purposes of this appeal, is not capable of being withdrawn. It is of the essence of waiver in this sense that the defendant has unequivocally renounced his right to rely upon the particular defence; once the defence has been so renounced (and this will be hard to establish except in a case as clear as this one), the defendant should not be permitted to rely upon it”.[31]
[28] Exhibit C, Applicant’s Statement of Issues, Facts and Contentions received 28 September 2017, p.4.
[29] The Commonwealth v Verwayen (1990) 170 CLR 394, [26].
[30] The Commonwealth v Verwayen (1990) 170 CLR 394, [8].
[31] The Commonwealth v Verwayen (1990) 170 CLR 394, [28].
The applicant also contends that notwithstanding the fact that the respondent waived their right to a section 53 defence, the AFP had been notified of the injury at the time and failed to inform Comcare.[32] The applicant considers that the onset of his psychological injury was not fully realised at the time and while he “wasn’t [his] normal self and acting strange”,[33] he did not know that a psychological injury was considered a compensable injury. For many years the applicant did not admit to suffering from a psychological injury as any diagnosis would negatively impact on his career.
[32] Exhibit C, Applicant’s Statement of Issues, Facts and Contentions received 28 September 2017, p. 4.
[33] Exhibit C, Applicant’s Statement of Issues, Facts and Contentions received 28 September 2017, [39].
The applicant asserts that he was completely ignorant of his right to make a claim for compensation for a psychological condition at the time of the injury as:
(a)he knew he could claim for physical injuries, but was not aware that a psychological injury was considered a valid injury;
(b)he was not aware of the SRC Act – the applicant contends he was made aware of the SRC Act when the respondent explained why his claim was rejected;
(c)he had not been provided with any education or training about making a workers’ compensation claim or the process; and
(d)he did not know of anyone who had ever made a claim for a psychological injury and as such was not inadvertently aware of the process.
The applicant submits that at no time was he educated on the process for reporting an injury and was never informed that a psychological injury was considered a legitimate injury. He submits that he “had not heard of the word Comcare until about 8 years ago and [he] had not heard of the SRC Act or [his] obligations under the Act until last year”.[34]
[34] Applicant’s “Section 53 submissions”, undated [16] & [17].
The applicant has not argued that his failure to notify Comcare of his injury was due to a mistake.
The applicant also contends that because his psychological condition gradually deteriorated over time there was no obvious shift in his behaviour[35] and it was only in early 2016, after a period of sobriety, that the applicant realised he needed to address the origins of his alcohol abuse and mental state which led him to realising there was a link between his behaviour and the investigation process in 1996.[36] The applicant submits it was then that he realised and notified Comcare.[37]
[35] Exhibit C, Applicant’s Statement of Facts, Issues and Contentions received 28 September 2017, p.7.
[36] Applicant’s “Section 53 submissions”, undated.
[37] Exhibit C, Applicant’s Statement of Facts, Issues and Contentions received 28 September 2017, p.7.
The applicant submits that Ms Sonja Jacob, psychologist, as part of a psychological evaluation, identified the applicant’s psychological issues in October 1996, however he was unaware of any diagnosis made at the time by Ms Jacob.[38] The applicant attended treatment on several occasions with Ms Jacob and Mr Jones however resisted the treatment and denied any problems. [39] The applicant considers that because AFP funded the treatment they must have been fully aware that he was suffering from a diagnosable injury.[40]
[38] Exhibit C, Applicant’s Statement of Facts, Issues and Contentions received 28 September 2017, p.7.
[39] Exhibit C, Applicant’s Statement of Facts, Issues and Contentions received 28 September 2017, pp.4 & 5.
[40] Exhibit C, Applicant’s Statement of Facts, Issues and Contentions received 28 September 2017, p. 5.
The applicant also contends that the respondent knew about his insurance policy since at least mid-2016 when AMP contacted them directly to gain access to the applicant’s Comcare file.[41]
Respondent’s Submissions
[41] Exhibit I, Tab 44.
The respondent submits that the applicant is precluded from claiming compensation on the basis that because he did not give notice of his injury as soon as practicable after becoming aware of his condition, the respondent has been unduly prejudiced and no relevant section 53 exceptions apply.[42]
[42] Exhibit H, Respondent’s Submissions on Preliminary Issue [13].
The respondent accepts that the applicant’s claim for workers’ compensation constituted notice in writing for the purposes of section 53. However, they contend that there is no evidence available to establish that the applicant gave notice of his condition prior to lodging a claim, despite outlining in his claim form that he first noticed his symptoms in approximately 1996.[43] The respondent submits that the applicant’s contention that he gave notice of his psychological condition to Ms Jacobs cannot constitute notice within the meaning of the SRC Act.[44] The respondent submits that the applicant did not give notice “as soon as practicable” after first becoming aware of his condition.[45]
[43] Exhibit A, T-documents, T8, p.20.
[44] Exhibit H, Respondent’s Submissions on Preliminary Issue [17].
[45] Exhibit H, Respondent’s Submissions on Preliminary Issue [18].
The respondent contends it has been prejudiced by the applicant’s failure to give notice of his injury for the following reasons:[46]
(a)the delay resulted in the loss of opportunity to obtain contemporaneous factual evidence;
(b)the delay resulted in the loss of opportunity to obtain contemporaneous specialist medical evidence;
(c)the delay resulted in the loss of opportunity to adequately and contemporaneously determine the veracity of the applicant’s claims;
(d)any medical reports that are now obtained rely on the history provided by the applicant about the work related incidents that he claims were causally related to his “mental injury”; and
(e)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 and Department of Defence (1998) AATA 645).
[46] Exhibit H, Respondent’s Submissions on Preliminary Issue [21].
The respondent submits that its inability to obtain factual and medical evidence is highlighted by the fact that Ms Jacob could not recall any details of the situation[47] and Dr Duke, in his report of 17 March 2017,[48] wrote that it was difficult to comment with any level of specificity with regards to the impact of any other causal factors at the time.[49]
[47] Exhibit A, T-documents, T13.
[48] Exhibit D, Report of Dr Benjamin Duke dated 17 March 2017.
[49] Exhibit H, Respondent’s Submissions on Preliminary Issue dated 11 December 2017, [30].
The respondent also submits that due to the lack of evidence there is a heavy reliance on the applicant’s history of events, which should be viewed with a very high degree of caution having regard to the findings of Dalton J in Leach v Ross & Anor [2013] QSC 333, [3]-[4], which determined issues of the applicant’s credibility.[50]
[50] Exhibit E.
The respondent submits that the applicant’s submission that his failure to lodge a claim earlier was a “mistake” because he did not realise a psychological injury was considered an injury, and had not heard of Comcare nor the obligations under the SRC Act, should not be accepted because:[51]
(a)it is inherently unlikely that a person who had been employed by the Commonwealth government for over 10 years at the time would not have been aware of his ability to claim compensation for psychological conditions;
(b)Ms Jacob, in her file note of 15 May 1997, referred to “Comcare” so it can be inferred that Comcare was discussed with the applicant;
(c)the applicant has had numerous dealings with lawyers in the past in other cases whom he could have asked about his injury;
(d)the applicant was aware that his ex-business partner, Mr Ross, had made a workers’ compensation claim with respect to his former employment with the AFP and was receiving weekly payments; and
(e)the applicant was aware of the insurer for AFP from 2008.
[51] Exhibit H, Respondent’s Submissions on Preliminary Issue dated 11 December 2017.
The respondent submits that the existence of psychological symptoms and the impact the applicant claims it had on his ability to “think as the normal logical person” should not be considered “any other reasonable cause” because:[52]
(a)this does not distinguish the applicant’s situation from any other employee who seeks compensation for a psychological ailment;
(b)the applicant has not explained why he was unable to lodge a claim for compensation until 2016; and
(c)the applicant was able to lodge a claim with AMP for income benefits in 2014.
[52] Exhibit H, Respondent’s Submissions on Preliminary Issue [29]; Respondent’s Submissions on Preliminary Issue dated 11 December 2017 [46].
CONSIDERATION
I am required to consider whether the applicant gave notice of his injury as soon as practicable after he became aware of the injury.
I must firstly record that anything said at the telephone conference is, under section 34E of the Administrative Appeals Tribunal Act 1975 (Cth), not admissible unless the parties agree to the evidence being admissible at the hearing. A telephone conference is an alternative dispute resolution process and anything said is not admissible as evidence without the consent of both parties; as the respondent has not given consent I am unable to admit evidence of what was said at the telephone conference. I might say that the respondent quite properly brought this matter to my attention during the hearing as this was a matter of concern to the applicant. However, under the law I am unable to have regard to what was said in the telephone conference.
There is no evidence before me that the respondent has committed an act of waiver which would attract the principles in The Commonwealth v Verwayen (1990) 170 CLR 394. The documents filed by the respondent prior to the hearing did not contain any undertaking to not rely upon section 53 of the SRC Act. The applicant had adequate notice prior to the hearing that the respondent would rely upon section 53 of the SRC Act.
In response to question 23 in his claim form dated 21 February 2016, the applicant stated that he first noticed the “symptoms/injury” in 1996. At the hearing the applicant confirmed that his response to question 23 accurately reflected when he first noticed his symptoms or injury. The applicant also then confirmed that he had never previously lodged a claim for compensation at any time with Comcare and that between 1996 and the date of his claim form he had not notified Comcare of his psychological condition. Having regard to the answer that the applicant gave to question 23 in his claim form and the evidence that the applicant gave at the hearing, I find that the applicant had not given notice to the respondent, being the relevant authority, as soon as practicable after he became aware of the injury in accordance with section 53(1) of the SRC Act.
The applicant, in his statement dated 27 September 2017, asserts that “It took me 19 years to accept that I had suffered some mental damage and discovered it was considered an injury. Notice of my injury was given by me to Comcare as soon as I accepted I had suffered an injury and it was a compensable injury”. I do not accept this assertion as it is inconsistent with the answer provided by the applicant in his claim form that he first noticed the “symptoms/injury” in 1996. In cross-examination the applicant conceded that he first noticed the “symptoms/injury” in 1996, and it was likely that he discussed his stress condition with AFP doctors in 1997.
The applicant has failed to comply with the requirements of section 53 (see section 53(3)(b)).
Prejudice
I have to consider whether the respondent is prejudiced by the applicant not having given notice to the respondent as soon as practicable after he became aware of the injury in accordance with section 53(1) of the SRC Act.
I am unable to conclude that the relevant authority being the respondent would not, by reason of the failure, be prejudiced if the notice given by the applicant were treated as a sufficient notice. At the time when the applicant stated he first noticed his symptoms/injury in 1996 he had attended upon Ms Sonja Jacobs, a psychologist, and Dr Peter Jones, a psychiatrist. The medical records and reports of Ms Jacobs and Dr Jones from 1996 are not available.
The applicant has given inconsistent information about whether he was actually diagnosed with a psychiatric condition in 1996. In his Statement of Facts, Issues and Contentions filed on 28 September 2017, the applicant stated that he was unaware of any diagnosis made by Ms Jacobs. However, the applicant informed Mr Cameron that he was diagnosed with a psychological condition by Ms Jacobs and Dr Jones.
I consider that the respondent is prejudiced by reason of not having access to the records of Ms Jacobs and Dr Peter Jones. The contemporaneous records of Ms Jacobs and Dr Jones may have evidence which would enable this Tribunal to make a decision as to whether the applicant was actually injured in the course of his employment with the AFP. Dr Duke in his first report dated 17 March 2017 has stated that without the records of the psychiatrist it would be difficult to comment on whether the applicant suffered a diagnosable injury at the time of his employment with the AFP.
The records of Ms Jacobs and Dr Jones may contain notes of any symptoms reported by the applicant and whether or not the applicant had been given any treatment. In cross-examination the applicant conceded that he would not be able to remember precisely what was said at the sessions with Ms Jacobs.
I next have to consider whether any of the exceptions in section 53(3)(c) of the SRC Act are satisfied in this case. The applicant does not bear any onus of proof in these proceedings.
Death, absence from Australia
The exceptions in section 53(3)(c) of the SRC Act relating to death or absence from Australia have no relevance.
Ignorance, mistake
I do not find that there is any cogent evidence that the failure to comply with section 53 of the SRC Act is from ignorance or from a mistake within the meaning of section 53(3)(c) of the SRC Act. It is certainly not plausible that the applicant was unaware by ignorance or mistake of his rights to claim compensation until he gave his notice in 2016.
The applicant asserts that he had learnt of Comcare in 2008 when a work colleague was given income support payments from Comcare. At that time he had met a Comcare investigator on a number of occasions and had gained a good rapport with him. By 2008 on the account of the applicant he was made aware of his right to make a claim with Comcare. The applicant had made a claim with AMP for his depression condition some 18 months previously in 2014. The applicant asserts that he only appreciated that a psychological injury was a valid injury in 2014 when he made a claim with AMP.
I have to consider whether the applicant knew of Comcare before 2008. In evidence is a file note by Ms Jacobs bearing the date 15 May 1997 which was made after the applicant had been subject to a probe by the ISA. The applicant was asked if he had been told of his right to make a claim to Comcare as early as 1997. The file note of Ms Jacobs referred to “Comcare”. In cross-examination the applicant was asked if it was possible that Ms Jacobs had then told him that he was able to lodge a Comcare claim. The applicant answered: “It’s possible that she could have done that, but she didn’t”. It was put to the applicant that after the telephone conference recorded in the file note that Ms Jacobs had then said to him that he was experiencing symptoms and that he is able to lodge a Comcare claim; the applicant answered: “I’m saying definitely not”. The answers that were given in cross-examination by the applicant are not consistent and do not satisfy me that the applicant was not advised by Ms Jacobs of his right to then make a claim. At that time the applicant was in regular contact by telephone and personal visits with the AFP psychologist over a period of some six months. I consider that it is entirely plausible that Ms Jacobs had informed the applicant of his right to make a claim. I do not consider that this is a case of either ignorance or mistake.
Reasonable cause
I do not find that there is any cogent evidence that the failure to comply with section 53 of the SRC Act is from any other reasonable cause within the meaning of section 53(3)(c) of the SRC Act.
The applicant has stated that he made an undertaking to not mention the ISA investigation process to anyone otherwise he would face disciplinary action. However, such an undertaking would not have had any force after the employment of the applicant was terminated in 1997. Having reviewed the material before me there is no evidence of any matter that would constitute other reasonable cause.
I am not satisfied that the failure of the applicant to comply with section 53 of the SRC Act resulted from any other reasonable cause.
CONCLUSION
I have decided that the correct and preferable decision is to affirm the decision under review because the respondent is prejudiced by the applicant not having given notice to the respondent after he became aware of the injury, and there is no cogent evidence that the exceptions in section 53(c) of the SRC Act are satisfied.
DECISION
I affirm the decision under review.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
...........................[SGD].....................................
Associate
Dated: 12 June 2018
Date of hearings: 6 November 2017 and 12 January 2018 Date final submissions received: 25 January 2018 The Applicant: In person Counsel for the Respondent Ms K Slack
Solicitors for the Respondent: Australian Government Solicitor
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