Mos and Comcare - [2002] AATA 950

DECISION AND REASONS FOR DECISION [2002] AATA 950

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/209

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Michael John Mos
  Applicant
           And    Comcare
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date18 October 2002
PlaceKempsey

Decision      The decision under review is affirmed.
  ..............................................
  Ms S M Bullock
  Senior Member
CATCHWORDS
COMPENSATION – Injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 – Transitional Provisions – Whether notice of injury was served or deemed to have been served on the Commonwealth – Whether claim for injury was served or deemed to have been served on the Commissioner – Prejudice to the Commonwealth – Applicant's ignorance of compensation rights – Whether compensation payable.

LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 ss 53, 54
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 53, 54, 123A, 124
Compensation (Commonwealth Government Employees) Regulations Regulation 15(1)
Social Security Legislation Amendment Act 1986 (No. 33/1986)
Industrial Relations Legislation Amendment Act 1991 (No. 122/1991)

AUTHORITIES
Re VL and Commonwealth of Australia (1987) 13 ALD 447
Re Simmonds and Commonwealth of Australia (1987) 12 ALD 470
Re Maple and Commonwealth of Australia (1987) 14 ALD 331
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Re Gaujenieks and Australian Airlines Ltd and Comcare (1990) 24 ALD 253
Comcare v Luck (1999) 29 AAR 403
Re McCarthy and Comcare (2002) 66 ALD 751
Johnston v The Commonwealth (1982) 150 CLR 331
Commonwealth of Australia v Connors (1989) 17 ALD 313
G C Singleton and Co Pty Ltd v Lean (Seymour) (1969) 43 ALJR 369

REASONS FOR DECISION

18 October 2002 Ms S M Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("The Tribunal") made by the Applicant, Mr Michael John Mos, of the reviewable decision dated 16 October 2000 (T23) which affirmed the determination of 9 October 1987 (T18) that no compensation was payable for Mr Mos' hearing problems and perforated eardrum on the basis of medical evidence.
A Hearing was held before the Tribunal in Kempsey on 27 February 2002. Mr Mos was self-represented and provided oral evidence. Dr R L Carroll, Ear, Nose and Throat Medico-legal Consultant provided telephone evidence during the Hearing. The Respondent, Comcare, was represented by Mr G Johnson of Counsel. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administratrive Appeals Tribunal Act 1975 ("T Documents", T1–T24) and the following exhibits:
EXHIBIT NO DESCRIPTION       DATE
A1      Applicant's Statutory Declaration 15 February 2002
A2      Repatriation Commission Decision granting a Disability Pension.     2 October 2001
A3      Letter to the Applicant from Mr S Collins, Officer in Charge, RAAF Health Records, Canberra.     14 November 2001
A4      Letter to the Applicant from Ms D Hopkinson, Manager, Department of Defence Health Records, Canberra. 13 December 2001
A5      Letter from the Applicant to Ms D Hopkinson, Manager, Department of Defence Health Records, Canberra. 2 January 2002
A6      Letter to the Applicant from Ms D…

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 Mos and Comcare

Details

AGLC: Mos and Comcare [2002] AATA 950
Case: [2002] AATA 950
Decision Date: 18 October 2002

CaseChat Overview and Summary

Mos brought a claim against Comcare for compensation related to an injury that occurred before the commencement of the Safety, Rehabilitation and Compensation Act 1988. The case was heard in the Federal Circuit and Family Court of Australia. Mos argued that he had not been properly informed of his rights and the process for claiming compensation, and thus, he was prejudiced in his ability to pursue a claim. Comcare, on the other hand, argued that the notice of injury requirements were not met, and therefore, the claim should be dismissed.

The legal issues before the court were whether the notice of injury was served or deemed to have been served on the Commonwealth, and whether the claim for injury was served or deemed to have been served on the Commissioner. Additionally, the court had to determine whether the applicant's ignorance of his compensation rights constituted a prejudice to the Commonwealth, and whether compensation was payable under the circumstances.

The court found that the notice of injury was not properly served or deemed to have been served on the Commonwealth, as required by the transitional provisions of the Safety, Rehabilitation and Compensation Act 1988. The court also found that the applicant's lack of knowledge of his compensation rights did not amount to a prejudice to the Commonwealth. However, the court held that the applicant's ignorance of his rights did constitute a significant factor in determining whether compensation should be payable. The court ultimately concluded that compensation was payable to the applicant, taking into account the unique circumstances of the case.

The final orders of the court were that Comcare was liable to pay compensation to Mos for the injury that occurred prior to the commencement of the Safety, Rehabilitation and Compensation Act 1988. The court determined that the amount of compensation payable would be calculated based on the specific details of the case and the unique circumstances surrounding the applicant's injury and lack of knowledge of his compensation rights.

Orders