Manning and Comcare - [2014] AATA 240

[2014] AATA 240

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/4619

Re

Grant Manning

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton

Date 24 April 2014

Place Sydney
The decision under review is affirmed.
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CATCHWORDS
WORKERS’ COMPENSATION—Requirement to give written notice of injury as soon as practicable—Whether failure to give notice resulted from a mistake or ignorance—Whether failure to give notice resulted from any other reasonable cause—Whether failure to give notice results in prejudice to the Respondent
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 (Cth) – s 16
Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) – s 53
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
CASES
Frosch v Comcare [2004] FCA 1642
Hunt and Military Rehabilitation and Compensation Commission [2010] AATA 259
Peter John Banks v Comcare Australia [1996] FCA 1490
Re Anstee and Comcare [2012] AATA 731
Telstra Corp v Robert Thomas Roycroft [1997] FCA 774
REASONS FOR DECISION
Senior Member A K Britton
24 April 2014

Grant Manning was employed by the Australian Federal Police (AFP) between 1973 and 1990. He seeks review of the decision made by Comcare to refuse to accept liability for an alleged injury to his lower back said to have been sustained during an AFP training day in 1990. Mr Manning’s first claim in respect of that incident was made in 2013.
One of the stated grounds given by Comcare for refusing to accept that claim was Mr Manning’s alleged failure to give notice in writing of injury “as soon as practicable” as required by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act). Section 53 of the Act provides:
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;
….
(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.
Mr Manning contends that he complied with the requirement to provide notice in writing of the injury “as soon as practicable”. In the alternative, he contends any failure to give timely written notice (which is not conceded) should be excused because the relevant authority would not be prejudiced by that failure, and/or the failure resulted from ignorance, a mistake, and/or other reasonable cause. Comcare disagrees.
Whether, by the operation of s 53…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Manning and Comcare

Details

AGLC: Manning and Comcare [2014] AATA 240
Case: [2014] AATA 240
Decision Date: 24 April 2014

CaseChat Overview and Summary

The case before the court involved Mr. Manning, a former employee of the Australian Federal Police (AFP), who claimed compensation for a back injury he sustained during a training day in 1990. The respondent, Comcare, was responsible for administering workers' compensation claims under the Commonwealth. The primary legal issue was whether Mr. Manning's failure to provide written notice of his injury within the required timeframe, as stipulated under section 53 of the 1988 Act, absolved him from liability due to ignorance, a mistake, or any other reasonable cause, or if it resulted in prejudice to Comcare.

The court had to determine whether the medical certificates provided by Mr. Manning in 1990 could be considered as "notice in writing of the injury". Additionally, the court had to assess if Comcare would suffer any prejudice due to Mr. Manning's delay in giving notice. Mr. Manning argued that his failure to notify was due to his belief that his injury was temporary and his fear of being assigned a desk job, which he attributed to his supervisor's negative reaction to workplace injuries during training days. The court found that Mr. Manning's medical certificates did not constitute the required written notice, and his explanation for the delay was not sufficient to meet the criteria under the statute. The court concluded that Mr. Manning's delay in giving notice resulted in prejudice to Comcare, thereby barring his claim for compensation.

The court's decision resulted in the dismissal of Mr. Manning's claim for compensation. The court ruled that Mr. Manning's failure to provide timely written notice of his injury was not excused by ignorance, mistake, or any other reasonable cause, and that this failure prejudiced Comcare. Consequently, Mr. Manning's compensation claim was denied, and the court upheld the respondent's position.

Orders

Orders of the court

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Background

Background to the litigation

Whether, by the operation of s 53 of the 1988 Act, the notice requirement is taken not to apply to the alleged 1990 injury turns principally on the following issues:·Whether any of the medical certificates given by Mr Manning to the AFP in 1990, constitute “notice in writing of the injury”.·If not, whether Comcare would be prejudiced by Mr Manning’s failure to give timely notice? or ·Whether Mr Manning’s failure to give timely notice resulted from ignorance, a mistake or any other reasonable cause?Background In a statutory declaration prepared in March 2013 in support of his claim for compensation, Mr Manning stated that during a training day in 1990 he hurt his back while playing indoor cricket. He stated that after being assisted by colleagues back to his usual place of work, Sydney airport, he told his supervisor, Inspector Mathews, that he had hurt his back “real bad”. He stated that Inspector Mathews replied “I am sick and tired of you people getting injured during training days, I’m going to can the bloody thing”. According to Mr Manning, Inspector Mathews appeared upset. As Mr Manning recalls Inspector Mathews took on the role of supervising police at Sydney airport in late 1988/early 1989 and was not enthusiastic about the regular training days, which had been introduced by his predecessor. Inspector Mathews has left the AFP. Both parties attempted to locate him without success. Mr Manning stated that he reported his conversation with Inspector Mathews to a colleague, Senior Constable Andrew Cox: “[Inspector Mathews] was not happy at all and I don’t know what to do”. In a statutory declaration dated 5 March 2013, Mr Cox confirmed that Mr Manning had told him that he hurt his back playing cricket on a training day. Mr Cox also wrote that he was nearby when Mr Manning informed Inspector Mathews of “the incident” and that Mr Manning told him that Inspector Mathews had replied that “too many people are getting hurt and he was going to put a stop to these training days”. Mr Cox stated that he recalled advising Mr Manning to report the incident and make a note in the “occurrence book”. Mr Manning admitted in these proceedings that while employed by the AFP he was aware of the requirement to give timely written notice of any injury. In oral evidence he gave as a reason for not doing so on this occasion, his concern that Inspector Mathews might give him a desk job and cancel the training days. He stated that Inspector Mathews was a “nice fellow … [but] he felt intimidated by him and most senior officers”. Mr Manning wrote that at the time, he thought his back injury was acute and “would come good”. He stated he went to see his GP, Dr Archie Jacobsen (now deceased), and was given an injection, prescribed pain medication, referred for a CT scan and certified unfit for work for two weeks. In a statutory declaration dated 27 November 2012, Mr Manning’s then partner and colleague, Barbara Briggs, wrote that she recalled being told by Mr Manning in or around the first half of 1990 that he had injured his back at work and observing swelling on one side of his lower spine which “appeared to be out of alignment”. She recalled asking Mr Manning whether he had reported the incident but could not recall his reply.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4619
Re	Grant Manning
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member A K Britton
Date	24 April 2014
Place	Sydney