Nuttall and Comcare - [2001] AATA 717

DECISION AND REASONS FOR DECISION [2001] AATA 717

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/1222

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BARRY NUTTALL
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date16 August 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  (Sgd) K L Beddoe
  Senior Member
Decision No: 717/2001
CATCHWORDS
COMPENSATION – work related hearing loss – delay of 18 years in applying for compensation – whether mistake or reasonable cause for delay

Queensland Workplace Health and Safety Act 1995
Rehabilitation and Compensation Act 1988 s 124
Compensation (Commonwealth Government Employees) Act 1971 s 53, 54, 124
Murray v Baxter(1914) 18CLR 622).
Commonwealth of Australia v Connors (1989) 86 ALR 247
Banks v Comcare 1996 FCA 382 para 14

REASONS FOR DECISION

16 August 2001 Mr K L Beddoe (Senior Member)

The applicant made a claim for compensation dated 12 April 2000 in respect of "industrial deafness" said to be caused by the applicant's employment by the then Department of Civil Aviation in the years 1972 to 1978.
The respondent accepted liability for the claimed condition which it described as "sensorineural hearing loss (bilateral)". However on an own motion reconsideration the respondent, in effect, revoked that decision and denied liability. That decision was notified by letter dated 1 December 2000 (T17). On 29 December 2000 the applicant applied for review in this Tribunal (T2).
The matter was brought on for hearing to determine the preliminary issue as to whether the applicant's claim for compensation was a valid claim because of the effluxion of time since he ceased relevant employment in 1978.
At the hearing the applicant conducted his own case and Miss Ford appeared for the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents. Further documents were tendered and marked as exhibits. Oral evidence was given by the applicant.
I make the following findings of fact. The applicant was employed by the Department of Civil Aviation from 1972 to 1978 as an airport fireman. With some brief exceptions the place of employment was Eagle Farm Airport in Brisbane. It was a feature of that airport that a holding bay for aircraft on take off on one of the runways, was proximate to the airport fire station; the applicant's normal place of employment.
Because of the lack of sound proofing of the fire station and an instruction not to wear ear protection, the firemen stationed at Eagle Farm were exposed to excessive jet engine noise from jet aircraft using full thrust to commence take off as they departed the holding area. The applicant described the noise as painful to the ears. The evidence satisfies me that this was a common problem for firemen employed at the Eagle Farm Airport at that time. I am also satisfied that the applicant and others have suffered a long term effect from that excessive jet engine noise.
Apparently the instruction that…

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 Nuttall and Comcare

Details

AGLC: Nuttall and Comcare [2001] AATA 717
Case: [2001] AATA 717
Decision Date: 16 August 2001

CaseChat Overview and Summary

In the matter of Nuttall and Comcare, the Federal Court of Australia addressed the issue of delayed compensation claims for work-related injuries. The applicant, Mr. Nuttall, sought compensation for hearing loss he claimed was caused by prolonged exposure to loud engine noise during his employment as an airport fireman. The primary legal issue was whether there was a reasonable cause for the 18-year delay in Mr. Nuttall’s application for compensation. This delay exceeded the statutory period required for lodging such claims under the Compensation (Commonwealth Government Employees) Act 1971.

The court examined the statutory requirements for timely claims under the Act, specifically section 54, which mandates that a written claim must be made within six months of the injury or awareness of the injury. Mr. Nuttall became aware of his hearing deficit by 1982 but did not file a claim until 2000. The court considered precedent from Murray v Baxter, where the High Court held that the statutory period for determining "mistake" or "reasonable cause" was six months from the date of the injury or awareness. The court found that the entire delay period must be justified by a reasonable excuse or mistake, rather than just the period immediately following the injury.

Ultimately, the court determined that Mr. Nuttall's failure to claim compensation within the statutory period was not justified. The evidence did not support a reasonable excuse for the significant delay, and thus the claim was dismissed. The court's reasoning hinged on the statutory requirement for timely claims and the absence of any substantial justification for the extended delay. Consequently, the Federal Court ruled in favor of Comcare, affirming that the delay was not excusable under the relevant legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

She also deposes to the effect that searches have failed to locate any employment records of the applicant. While the document tendered is deficient I accept that it is more likely than not that records of employment of the applicant cannot be found.The Medical Evidence The applicant relies on a report by an audiometrist dated 27 March 2001 which includes the following:"His audiogram reveals a bilateral moderate to severe sensorineural hearing loss caused from excessive noise.Mr Nuttall also suffers from severe constant tinnitus." (Exhibit C). Exhibit D is a Workplace Health and Safety Bulletin dealing with noise in the work place. The bulletin does not express medical opinion. It does give advice about the Queensland Workplace Health and Safety Act 1995 which is not the relevant legislation for employees of the Commonwealth covered by the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act") and its predecessor. The exhibit is relevant however in that it establishes to my satisfaction that engine noise of jet aircraft taking off is at a very high level. The applicant also relied on some texts about hearing loss (Exhibits C and E). Those texts make it clear that sensorineural deafness maybe caused by the aging process or prolonged exposure to noise. It is not necessary that the prolonged exposure to noise be very loud noise and cites the example of high pitch sounds generated by computers as a likely cause. The only specialist medical opinion before the Tribunal is the report of Dr Altman dated 21 May 2001 (Exhibit 1). That is not a medico-legal report in the traditional form but a response to questions posed by the respondent's solicitor in its letter of 17 April 2001. Dr Altman also responded to a letter from the solicitor dated 24 April 2001 but a copy of that letter has not been provided. Dr Altman's response to that letter deals with a matter I do not need to take into account for present purposes. I set out the questions and answers as follows:"Please advise whether:Left and right sensorineura loss would occur shortly after exposure for a continuous period from 1972-1978 ie the effects being immediately or soon after apparent or;The effects of the condition would not be apparent for a substantial period ie over 22 years after the period of exposure.Whether this type of hearing loss could occur as a result as a one off incident ie loud explosion/injury.In reply to your letter of 17th April 2001, questions 1 & 2,I would expect that if significant noise exposure occurred from 1972 to 1978 that the effect of this may have been evident during or soon after this period. Potentially however it is possible that some hearing loss could have occurred during the period 1972 to 1978 but that this hearing loss had not reached the level of severity at which the patient would notice or would be concerned about it, until later noise exposure or age-induced hearing loss eventually reduced the patient's hearing to a level where he noticed the hearing loss or it became a problem to him.In reply to question 3.This type of hearing loss could potentially occur as a result of a one off incident such as a loud explosion however Mr Nuttall did not mention such an incident and I would normally expect such an incident to be remembered and mentioned by the patient."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The fact of being able to live with a medical condition caused by an injury is not a reasonable excuse for not making a claim.Consideration A person is entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1971 Act (s124(1A)). Section 124(1A) is however to be read as subject to other provisions in Part 10 of the 1988 Act. Section 124(10) of the 1988 Act relevantly provides that where a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act (1 September 1971) but before 1 July 1986, was not admissible because of section 54 of the 1971 Act that person is not entitled to compensation under the 1988 Act in respect of that injury. Section 53(1) of the 1971 Act provides for the giving of notice to the Commonwealth of an injury as soon as practical after the occurrence of the injury or as soon as practicable after becoming aware of the injury. There is no issue taken under this section but I have noted that there is no suggestion in this case that such a notice was given at anytime prior to the claim for compensation being made in April 2000. The respondent relies on section 54 of the 1971 Act and in particular sub-section (1). That sub-section provides that compensation is not payable to a person unless a claim in writing was made within the prescribed period. Sub-section 54(2) relevantly provides that the prescribed period for the purposes of sub-section 54(1) is either:(a)the period of six months commencing on the day of the injury; or(b)if the claimant was not, immediately after the injury, aware that he had sustained an injury – the period of six months commencing on the claimant becoming so aware. On the applicant's own evidence he had become aware of hearing deficit attributable to his employment as a airport fireman by 1982, when he discussed claiming compensation with former work colleagues at a social function. On advice of those colleagues he did not make a claim at that time although he was aware, on his evidence, that he had sustained an injury. In Murray v Baxter (1914) 18 CLR 623 the High Court decided, by majority, that the relevant period in a provision similar in effect to section 54(6) was the six months after date of injury or death. Isaacs and Gavin Duffy JJ held that it is the six months period specified by the legislation which is the relevant period to determine "mistake" or "reasonable cause". As their Honours explained, the nature of the mistake made in that case was one clearly made at the relevant time because of erroneous and confusing advice in the face of the claimant widow's determination that she was entitled to compensation for her husband's death. Griffith CJ dissented on the basis that the whole period between injury and claim was to be considered in determining whether there was mistake or reasonable excuse that justified the late claim. The Chief Justice said at 18 CLR 626 that the words "the failure" mean the actual period of delay before commencing proceedings and that the whole of such delay must be excused.