Lord and Comcare
[2003] AATA 451
•20 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 451
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/436
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT LORD Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr EK Christie, Member Date20 May 2003
PlaceBrisbane
Decision The Tribunal decides to vary the reviewable decision in so far as the Tribunal decides that Mr Lord's claim for compensation meets the requirements of section 16 of the Commonwealth Employees' Compensation Act 1930 regarding the late claim and notice.
This means the Tribunal has the jurisdiction to hear Mr Lord's claim for compensation.
(Sgd) EK Christie
Member
CATCHWORDS
WORKERS' COMPENSATION - Tribunal jurisdiction - lodging compensation claim more than six months after onset of injury - whether any want of or defect in notice of accident - whether prejudice to the respondent - whether "mistake" by the applicant - whether "reasonable cause" applies in applicant's circumstances.
Commonwealth Employees' Compensation Act 1930 s 16
Safety Rehabilitation and Compensation Act 1988 s 124
Re Tierney and Reserve Bank (1988) 15 ALD 534
Comcare Australia v McGuire (1996) 68 FCR 32
Commonwealth of Australia v Connors (1989) 86 ALR 247
Black v South Melbourne [1963] VR 34
Banks v Comcare [1996] FCA 382
Murray v Baxter (1914) 18 CLR 622REASONS FOR DECISION
20 May 2003 Dr EK Christie, Member 1. This is an application by Robert Lord on a preliminary jurisdictional issue in terms of whether his claim for compensation for injury pursuant to the Commonwealth Employees’ Compensation Act 1930 [“the CEC Act”] should proceed to a hearing. Specific statutory obligations are imposed on Mr Lord’s claim by section 16 of the CEC Act.
2. Mr Lord’s initial claim for benefits was made on 12 December 2000, some 32 years after the events relied upon by Mr Lord have been said to have occurred. Mr Lord has attributed his asthma and anxiety disorder conditions to fire fighting whilst in the Australian Army:
“You [Mr Lord] stated that the injury happened ‘in the back of truck – burnt lungs due to fire going around truck between Young and Wagga Wagga’. You allege the incident occurred on 1 February 1970, and that you first noticed symptoms or sought treatment on 19 February 1970.” (Reviewable Decision, McIver; T41, Folio 123).
3. In the decision under review, the decision-maker (Mr I McIvor, Manager Reconsideration, 13 March 2002) concluded that Mr Lord’s application failed to satisfy the statutory obligations imposed by section 16 of the CEC Act.
4. The reviewable decision contained the following conclusions:
“Your claim was made almost 32 years after the alleged events. Since receiving the claim, efforts have been made by both this office and yourself to obtain documents about the alleged fire. No such documents have been located. In addition, you have not provided any witness statements supporting your version of events, and there is no mention of such a fire in your medical records.
The latter point is particularly relevant, as if it were the case that you had ‘burnt lungs’ as you allege, it would be most surprising for that condition not to be noted in your medical records. Those factors convince me that the Commonwealth has been prejudiced as a result of the delay in both reporting the incident and in making a claim.” (T41, Folio 124)
And:
“Reports have been obtained from Dr Degotardi. His reports make no mention of the alleged bush fire incident, but noted asthmatic symptoms on exertion. He also reported you had a personality disorder of the dependent/immature type, which had totally disorganised your function. He assumed the disorder predated your enlistment, but stated that a ‘crisis of dependency’ had occurred since enlistment which had been characterised by psychosomatic symptoms (ie asthma) and a deterioration in your personality disorder.
There is no further information in your records as to precisely what the ‘crisis of dependency’ cited by Dr Degotardi was. There is no evidence as to how it arose or what factors may have been behind it.” (T41, Folio 125)
And:
“On the evidence currently available, I cannot be satisfied that the bush fire incident even occurred; and if it did, that it contributed to your asthma condition. The balance of the evidence indicates the asthma is likely to be a psychosomatic manifestation. In that regard, I am satisfied that you had a pre-existing personality disorder. There is some reference to a ‘crisis of dependence’ during your service; but precisely what this ‘crisis’ was and how it arose is not apparent from the records.” (T41, Folio 125)
5. Mr Lord applied to the Administrative Appeals Tribunal for a review of the decision made on 13 March 2002 stating:
“I have recently had a claim twice dismissed by M.C.R.S. and feel that it has been dealt with in a very poor manner by the Department.”
6. Mr Lord also expressed concerns related to credibility issues and issues relating to the factual basis for his claim (T6, Folio 9).
Facts
7. The general facts were not in dispute and may be stated briefly.
8. Mr Lord was born on 3 October 1952 and enlisted in the Australian Army on 5 November 1969 as a Private. He was medically discharged due to “immature personality” and “bronchial asthma”, some 6 months later, on 11 May 1970.
9. The first record of Mr Lord presenting for treatment for an asthma/bronchitis condition is undated (T8, Folio 25). Despite attempts to do so, the respondent was unable to establish when that document was actually created. In any event, the record does not refer to the cause of this medical condition.
10. The first record of Mr Lord having an immature personality disorder, during Army service, was 24 February 1970 (T8, Folio 37).
11. Mr Lord’s application for review was set down for a hearing by the Tribunal on 9 October 2002. Mr Lord failed to appear. The Tribunal then immediately telephoned Mr Lord from the Tribunal hearing room, and in the presence of the legal team for Comcare, Mr Lord consented for the matter to be decided on the papers (that is, on the basis of the material contained in the “T” Documents, and the supplementary documents filed relating to the “T” Documents). The Tribunal gave Mr Lord until 30 October 2002 to provide the Tribunal with any supplementary submissions that he considered necessary that related to his application for review. No such submissions were received by the Tribunal by 30 October 2002 or after this date.
12. A telephone directions hearing was held on 28 February 2003 in which the Tribunal sought clarification from Mr Lord as to his position on providing the Tribunal with supplementary submissions. Mr Lord acknowledged that no supplementary submissions were to be provided and that all relevant material was now before the Tribunal. Both Mr Lord and the respondent consented for the Tribunal to decide the disputed issues, relating to the application of section 16 of the CEC Act, on the information and materials before the Tribunal.
13. As the date of injury, as claimed by Mr Lord (1 February 1970), occurred before the enactment of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”), section 124 (“transitional provisions”) of the SRC Act applies. A consequence of the application of the transitional provisions is that the Commonwealth Employees’ Compensation Act 1930 (‘the CEC Act”) is the relevant Act under which the applicant’s claim is to be considered. Compensation would only be payable to Mr Lord if he were entitled to payment under the CEC Act.
14. Section 16 of the CEC Act is the relevant provision in determining the jurisdictional issues in relation to this application for review.
The Law
(a) The CEC Act
15. The requirements Mr Lord must satisfy are prescribed in section 16 of the CEC Act. The Administrative Appeals Tribunal, in Re Tierney and Reserve Bank (1988) 15 ALD 534, made the following observations in respect of the operation of section 53 of the SRC Act (a similar provision to section 16 of the CEC Act), that the section was:
“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. However, where an appropriate officer of the Commonwealth or a relevant instrumentality is made aware at an appropriate time of the alleged injury or disease and the circumstances in which it was suffered or contracted, the Commissioner and the Tribunal should, we believe, be slow to hold that a claim for compensation for the incapacity resulting from that injury or disease must fail because s 53 has not been complied with to the letter.”
16. Section 16(1) of the CEC Act states:
“(1) The Commissioner shall not admit a claim for compensation [1] 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 –
[1] Amended by section 5 of the Commonwealth Employees’ Compensation Act 1959 to include “disease”.
(a) within six months from the occurrence of the accident; or
(b)in case of death – within six months after advice of the death has been received by the claimant:
Provided always that –
(i)the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.
(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
(3) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.”
17. Mr Lord must establish both section 16(1)(i) and section 16(1)(ii), on the balance of probabilities, in order to succeed in his application.
18. In considering the above elements of section 16(1), and in the factual circumstances of Mr Lord’s application for review, the Tribunal concludes:
(a)that it is not in dispute that Mr Lord’s claim for compensation was made more than 6 months after the occurrence of the accident [section 16(1)(a)]; and
(b)that absence from Australia is not an issue in this application for review [section 16(1)(i),(ii)]; and
(c)that notice of the accident, in accordance with the requirements imposed by section 16(2), has not been complied with.
19. Analysis of long-held authority makes it clear that the period relevant to the consideration as to whether a satisfactory explanation is given, as required by the section 16, is the six months following the accident: Murray v Baxter (1914) 18 CLR 622.
Issues to be Decided
20. The Tribunal has adopted the following approach in its consideration of the application of section 16 of the CEC Act to Mr Lord’s application for review:
(a)Given that Mr Lord has not complied with the statutory requirement to make a claim for compensation within six months from the occurrence of the accident [section 16(1)(ii)], whether such failure (or omission) arose from “mistake” or other “reasonable cause”; and
(b)whether the notice of accident contained any defect or inaccuracy or whether the notice has been served in accordance with statutory requirements; and
(c)whether the respondent is prejudiced by the want of notice of accident, or because of any defect or inaccuracy as the notice is not in the prescribed form imposed by statute;
or, in the alternative,
whether any failure to serve the notice of the accident – or any defect or inaccuracy in the nature of accident, arose from “mistake” or other “reasonable cause” on the part of Mr Lord.
Common Law Principles for Statutory Interpretation of Terms in the CEC Act
21. It is clear that an analysis of the legal meaning given to the terms “reasonable cause” and “mistake” by our courts is necessary before the disputed facts can be considered in relation to the questions of law raised by sections 16(1)(i) and (ii) of the CEC Act.
22. The first term for the Tribunal to consider is the legal meaning given to “mistake” in cases decided by our courts.
23. The Full Federal Court in Commonwealth of Australia v Connors (1989) 86 ALR 247 reviewed the legal authorities relating to the meaning of “mistake” and concluded (at 250):
“The words ‘mistake…or reasonable cause’ or ‘mistake or other reasonable cause’ have been considered in many authorities: see for example Murray v Baxter (1914) 18 CLR 622; Shotts Iron Co Ltd v Fordyce [1930] AC 503 and Black v South Melbourne [1963] VR 34. From the authorities it is clear that in this context the word ‘mistake’ includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other ‘reasonable cause’.”
24. The Full Court of the Supreme Court in Black v South Melbourne [1963] VR 34 said (at 37):
“It has to be borne in mind, however, that what the applicant under the section has to show in order to make out a case of mistake thereunder, is not merely that he was mistaken but that his failure to give notice within the prescribed time was occasioned by mistake. It is not enough for him to show that he was mistaken, if in fact he was, unless that mistake occasioned the failure to give notice. The first inquiry must therefore always be as to the cause of the failure to give notice as required by the statute. If it appears that the reason why notice was not given as required was that the person concerned had never heard of the section and did not know of its requirements, then he fails to establish mistake occasioning the failure to give the required notice, even though it should turn out that he was labouring under a misconception as to the law relating to his claim. For, as we have seen, ignorance of the requirements of the section does not constitute a mistake thereunder.”
25. The next term for the Tribunal to consider is the legal meaning, applied by our courts, for the term “reasonable cause”.
26. In Connors’ case, the Full Federal Court concluded (at 252):
“As was said by the court in Black’s case (at 38), when considering ‘reasonable cause’: ‘The inquiry here appears to be of a much wider kind justifying a more liberal attitude. The expression ‘reasonable cause’ appears to us to mean some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable. In Quinlivan v Portland Harbour Trust [1963] VR 25 at 28, Sholl J, used these words: ‘The sub-section means to refer to a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man.’
Applying that test, it is clear on the findings made that the only reason for the failure to give the notice and to make a claim was ignorance of the law. That does not constitute ‘reasonable cause’.”
27. In Banks v Comcare [1996] FCA 382, Kiefel J considered the meaning of “reasonable cause”:
“14. … Proviso [s 16(1) of the CEC Act] para (ii) requires that it be ‘occasioned by … other reasonable cause’.. Unlike proviso [s 16(1)] (i) [of the CEC Act], this proviso does not excuse inaction where there is no prejudice. And the words of proviso (ii) set out furnish little guide to what a decision-maker might regard as an acceptable excuse. The expression ‘reasonable cause’ has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim: see Black v City of South Melbourne [1963] VR 34, 38: Quinlivan v Portland Trust [1963] VR 25, 28. Here however it was not just the circumstances prevailing which operated to hinder or prevent the giving of notice, but a conscious decision made by the applicant in light of those circumstances and according to where it was perceived his best interests lay. It was a decision that a claim not be pursued as the applicant felt he was able to manage. There may be cases where a decision not to claim, for a time, is held to be justified and qualify as reasonable, for instance when it is made absent full knowledge though not amounting to a mistaken belief, a separate ground of excuse under the proviso. It is difficult however to accept that proviso (ii) was intended to encompass a position where a person might later change their mind about making the claim for the reason that it now suited them to do so.”
28. In Comcare Australia v McGuire (1996) 68 FCR 329, Carr J considered the question whether, having found “mistake” and “reasonable cause”, the Tribunal was obliged to consider possible “prejudice” to the employer, and concluded:
“As a matter of construction, I do not read the proviso in s 16(1)(i) as requiring the Commissioner (or the Tribunal for that matter) to have regard to the matter of prejudice to the Commonwealth once the Commissioner (or the Tribunal) finds that the circumstances fall within any of the alternatives. They should, in beneficial legislation of this type, be treated as true alternatives. If prejudice to the Commonwealth were to stand as a bar to admission of the claim, that would require, in my view, an express provision to that effect. What Parliament has provided are alternatives excusing the want of or any defect or inaccuracy in the notice.”
Further Evidence and Information Provided For The Tribunal Hearing, 9 October 2002
29. The following materials were provided for the Tribunal’s hearing and were additional to the information contained in the “T” Documents:
(a) Medical records of Dr SK Yu (General Practitioner) [by subpoena];
(b) Medical records of Dr M Katz (Psychiatrist) [by subpoena]; and(c) Statement of Mr P Ontong, 30 September 2002 (Director, MCRS).
30. Dr Yu’s records, at 30 January 2001, indicate that the current problem he was treating Mr Lord for was primary osteoarthrosis. There was some suggestion from the records of the Webb Centre for Rheumatic Diseases that, following investigations, Mr Lord may have genetic haemachromatosis.
31. Dr Katz’s records refer to his consultations with Mr Lord on 9 February 2000 and 9 February 2001. Dr Katz refers to Mr Lord as having symptoms of traumatic stress and depression relating to his past emotional history and that this was consistent with a significant traumatising history related to emotional and physical abuse throughout his entire childhood.
32. Dr Katz’s records refer to him currently providing Mr Lord with a combination of counselling techniques, together with medication, in order to prevent his presenting spectrum of symptoms from further generalisation or evolution into a major depressive breakdown.
33. Mr Ontong states that the respondent would be prejudiced in respect of Mr Lord’s claim for bronchial asthma and anxiety disorder because it would be unable to properly investigate the circumstances of the incidents upon which Mr Lord relied, for the following reasons:
(a)The respondent was given no opportunity to have Mr Lord properly examined for compensation purposes, either during his service, or shortly after he left the Army in respect of his bronchial asthma and anxiety disorder.
(b)The delay in Mr Lord bringing his claim for compensation created significant difficulty in obtaining contemporaneous medical and factual evidence relating to the nature of, causes and “triggers” for both medical conditions.
(c)The respondent could not find any documentation or records to confirm that Mr Lord’s involvement in a bush fire-fighting incident resulted in his suffering from asthma or an anxiety disorder.
(d)The respondent was unable to audit the characteristics of Mr Lord’s workplace at the time of the injury he suffered with respect to his asthma and anxiety disorder.
(e)Given that some 30 years had passed since the incidents upon which Mr Lord now seeks to rely, there was uncertainty as to whether any intervening event(s) may have occurred which may be related to both medical conditions.
Consideration of the Issues
34. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. In order to succeed with his application for review on this preliminary jurisdictional issue, Mr Lord must satisfy both paragraphs (i) and (ii) of section 16 of the CEC Act, on the balance of probabilities.
35. The Tribunal firstly considers the issue whether Mr Lord’s failure to make a claim for compensation in the time prescribed by statute arose because of “mistake” or “other reasonable cause” [s 16(1)(ii)].
36. The Tribunal applies the legal principles in Connors’ case and Black’s case to determine whether “mistake” is a factor in this regard.
37. Mr Lord has stated that “no-one in authority told me of my rights in this regard” and “no-body ever told me how or what was going on about being discharged. DFRDB contacted me and I always thought that was it.” (T30, Folio 103, 20 March 2001). However, the Tribunal notes that on his “Discharge Questionnaire” Mr Lord ticked “yes” to a question [Q43] dealing with applying for compensation for an existing disability (T9, Folio 62, 18 March 1970).
38. The Tribunal has no option other than to apply the legal principles established by higher courts. Applying these principles (Connors’ and Black’s cases) against Mr Lord’s factual background, that he was unaware of the obligations imposed by statute for making his claim for compensation in the prescribed time, means that the Tribunal can make no finding other than to conclude that Mr Lord fails to establish “mistake” as a reason for his failure.
39. Both Connors’ and Black’s cases confirm that ignorance of the law does not, by itself, constitute a “mistake”.. However, the only reason Mr Lord has given for his failure to lodge a claim relates to his ignorance of the law.
40. The Tribunal next considers whether Mr Lord’s failure to lodge a notice of accident arose because of “other reasonable cause”.
41. Both Connors’ and Black’s cases make it quite clear that ignorance of the law does not constitute a “reasonable cause”.
42. However, the Tribunal concludes that in Mr Lord’s factual circumstances, a “reasonable cause” exists to account for his omission to make a claim for compensation, according to the statutory time limits, for the following reasons:
(a)On entry into the Army, Mr Lord was considered suitable for “General Enlistment” in the Army, he had a “satisfactory personality adjustment” and was “medically fit” (T8, Folio 19). In light of his history and subsequent psychiatric opinion, this Army medical evaluation has limitations in Mr Lord’s case.
(b)Mr Lord was medically discharged from the Army, due to “immature personality” and “bronchial asthma” some six months after enlistment.
(c)Mr Lord’s psychiatric condition was untreated for much of his period of Army service. Anti-depressants were not dispensed until “early 1970” and tranquillisers were also used (Dr P Grant, T32, Folio 109, 18 April 2001).
(d)Dr C Degotardi states in his report (T15, Folio 82, 31 July 1974) that Mr Lord “has a severe personality disorder of dependence/immature type which has totally disorganised his function… This personality disorder, I would assume, predates his enlistment” (Tribunal’s emphasis).
(e)Dr M Katz’ records (February 2000, February 2001) corroborates Dr Degotardi’s conclusion that Mr Lord’s psychiatric condition pre-dated his enlistment because of a significant traumatising developmental history related to emotional and physical abuse and brutalisation throughout his childhood (see paragraph 30).
(f)Furthermore, Dr Degotardis’ reports (T15, 31 July 1974; and T17, 10 December 1990) and Dr Katz’ records (February 2000, February 2001) indicate that Mr Lord’s psychiatric conditions persisted beyond enlistment and continued over time.
(g)Some evidence of his totally disorganised functioning may be adduced in Mr Lord’s omission to make the claim in the prescribed time, notwithstanding that he was aware of compensation issues (T9, Folio 62).
(h)The Tribunal considers that Mr Lord had not made a conscious decision to delay making a compensation claim for the reason that it was “perceived to be in his best interests” to make the claim some 32 years later (Banks’ case). Rather it was his psychiatric condition, and its impacts, that led to the delay in making the claim.
(i)The combination of the above factors led to Mr Lord’s omission to make the claim in the prescribed time.
43. Applying these reasons in the context of Mr Lord’s omission to make a claim for compensation in the prescribed time, the Tribunal finds, on the balance of probabilities, that Mr Lord’s psychiatric condition during his period of Army service was associated with him functioning in a manner that was totally disorganised. Moreover, that his psychiatric condition pre-dated his enlistment and continued over time. The Tribunal is aware that Mr Lord was subsequently discharged, as medically unfit, from the Army because of the psychiatric condition of immature personality disorder, some six months after enlistment.
44. Given the above finding relating to a psychiatric condition during Army service, the Tribunal concludes that Mr Lord’s totally disorganised functioning and his continuing psychiatric condition, represents a “reasonable cause” for his omission to make a claim for compensation in the prescribed time.
45. Next, the Tribunal considers whether the respondent may be prejudiced because of any defect or inaccuracy in the notice of accident.
46. The Tribunal finds that the notice relied upon (T8, Folio 25) is not in accordance with the requirements imposed by subsection 16(2). The notice does not contain a statement of the cause of the injury or the date the accident happened.
47. The Tribunal is aware that the respondent is likely to have some difficulty resisting a claim made under beneficial legislation if it is unable to locate the type of information described by Mr Ontong. This is despite the onus of proof resting on Mr Lord. Accordingly, the Tribunal finds that the respondent would be prejudiced if the notice in this case were to be treated as a sufficient notice.
48. However, for the reasoning and findings in relation to other “reasonable cause”, in the context of Mr Lord’s omission to make a claim for compensation within the prescribed time, the Tribunal makes the further finding that Mr Lord’s psychiatric condition during Army service resulting in totally disorganised functioning [together with his “on-going personality disorder” condition (see Dr Degotardi, T15, Folio 82, 31 July 1974; T17, Folio 84, 10 December 1990)] and so represents a “reasonable cause” for any want of, or defect or inaccuracy in the notice of accident.
49. Accordingly, the Tribunal concludes that Mr Lord’s claim for compensation should be entertained by the respondent.
50. For all of the above reasons the Tribunal decides to vary the reviewable decision in so far as the Tribunal decides that Mr Lord’s claim for compensation meets the requirements of section 16 of the Commonwealth Employees’ Compensation Act 1930, regarding the late claim and notice.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Sarah Oliver
AssociateThe matter was heard on the papers
Date of Decision 20 May 2003The Applicant represented himself
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Messrs Sparke Helmore
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