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)            

1. 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.

2. 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).

3. 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. 

4. 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.

5. 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.

6. 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.

7. Apparently the instruction that firemen were not to wear ear protection was so as to ensure they could hear emergency messages.  From the evidence it must be doubted that anyone could hear anything other than engine noise while jet aircraft were in the holding area proximate to the fire station.

8. The applicant was required to accept a transfer to another airport in 1978 but declined to transfer and resigned from employment by the Department of Civil Aviation.

9. He subsequently went into business on his own account doing work which, prima facie, did not involve noise levels such as the extraordinary noise levels experienced at the airport.

10. Approximately five years after ceasing employment with the Department of Civil Aviation, the applicant attended a social function for airport firemen.  He discovered that the Department of Civil Aviation had been abolished and the airport firemen were then employed by the Department of Transport and Regional Services.

11. The applicant said he discussed making a claim for compensation for his perceived loss of hearing at the function but was advised by one or others at the function that because the Department of Civil Aviation had ceased to exist he would not be able to make a claim.

12. The applicant made the claim for compensation in 2000 on the advice of his doctor.  Although asked by Miss Ford he was unable to explain how the perceived problem in the early 1980's concerning the abolition of the Department of Civil Aviation had been resolved.

13. Exhibit 2 is a copy of an undated "affidavit" of Sandra Betts, an employee of the Department of Transport and Regional Services.  She accepts that the applicant was employed by the Department of Civil Aviation from March 1972 to June 1978 as Airport Fireman First class.  Documents said to be exhibited are not part of the document tendered.

14. 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

15. 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).

1. 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.

2. 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.

3. 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.

4. 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."

5. In an earlier report dated 7 June 2000 (T14) Dr Altman diagnosed bilateral sensorineural loss.
   The Applicant's Submissions

6. The applicant says there is a causative link between his employment at the airport and his hearing loss.  He failed to make an earlier claim because he was told by colleagues in 1982 (or there about) that the Department of Civil Aviation had been abolished and it was no longer open to him to lodge a compensation claim.
   The Respondent's Submissions

7. Because of section 124(10) of the 1988 Act the applicant must show that his claim for compensation is admissible despite section 54 of the Compensation (Commonwealth Government Employees) Act 1971 ("1971 Act").

8. Because the respondent is unable to find the applicant's employment records due to the effluxion of time it is prejudiced.

9. It is the period of six months after injury or becoming aware of the injury which is the relevant period.  Subsequent delay cannot be taken into consideration (Murray v Baxter(1914) 18CLR 622).

10. 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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

1. 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.

2. 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.

3. 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.

4. The decision in Murray v Baxterwas applied by the Federal Court in Commonwealth of Australia v Connors (1989) 86 ALR 247. The Federal Court found that ignorance of the law did not constitute reasonable cause.

5. I am satisfied that this is precisely the kind of case covered by section 54(1) of the 1971 Act.

6. Sub-section 54(6) of the 1971 Act provides that where:

   (a)a claim purporting to be a claim referred to in sub-section 54(1) has been made to the relevant authority;

   (b)the claim, as regards the time or manner of service, failed to comply with the requirements of sub-section 54(1); and

   (c)the Commonwealth would not by reason of the failure to comply with sub-section 54(1) be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from ignorance, from a mistake or from any other reasonable cause,

   then the claim shall be deemed to have been served in accordance with sub-section 54(1).

1. The evidence of the respondent as to prejudice is found in Exhibit 2 which is the undated statement (described as an affidavit) of Sandra Betts.  That document was accepted into evidence without the deponent being called to give evidence.  I accept that the Commonwealth has been unable to find any employment records relating to the applicant after the claim for compensation was lodged in April 2000.  In that regard the explanation that employment records are usually archived for 10 to 15 years, given the gap of 22 years, the conclusion that the records may have been destroyed is the most likely explanation for the applicant's records now being unavailable.

2. The applicant was, I infer, alert to his right to claim compensation in 1982 when he discussed his hearing loss with former work colleagues.  He did not make a claim because he understood the Department of Civil Aviation to have been abolished.  I understand this had a valid basis in fact.  What he failed to do was approach the successor department or the Commission for Employees Compensation.

3. That the applicant lodged a claim with Comcare in April 2000, after discussing the matter with his medical practitioner, satisfies me that he did not pursue the matter in 1982 because of a conscious decision not to do so.  With the benefit of hindsight, that might be regarded as a mistake on the applicant's part.  However it is not a mistake that lead the applicant to not make a claim in 1982.

4. What the applicant's work colleagues told the applicant in 1982 was sufficient to put him on notice that the Department of Transport and Regional Development was the successor of the Department of Civil Aviation. On the applicant's own evidence he understood this. He did not pursue his compensation claim at that time for any reason which could be described as a mistake contemplated by sub-section 54(6).

5. For whatever reason, the applicant decided in 1982 not to pursue his claim.  He did so in the knowledge of the successor to his employer but made no enquiry of that department.

6. In my view a decision not to make a claim for compensation, being conscious of the relevant facts at that time, is neither a mistake nor a reasonable cause justifying making a claim 18 years later.  As the High Court explained in Murray v Baxter it is not necessary to characterise a mistake, but merely find that a mistake has been made in the relevant period of six months.  Something which is said to be a mistake with the benefit of hindsight does not have the character of a mistake made in the relevant six months period.  In the present case the applicant did not seek professional advice but relied on advice of his former colleagues to the effect that the Department of Civil Aviation had been abolished and that he could not therefore make a claim on that department.  All of that was a fact.  If there was a mistake it was the applicant's decision not to make the claim at that time.  That decision was made without regard to the legislation and without obtaining competent advice.

7. I am satisfied there was no relevant mistake, the applicant was not ignorant of his rights in 1982 and there is no reasonable cause for not making the claim in 1982..  As to reasonable cause see Banks v Comcare 1996 FCA 382 at paragraph 14 which reads as follows:

   "The conclusion here reached by the Tribunal was brought about by the same factor relevant to the failure to give notice, namely the applicant's knowledge, very shortly after the accident, that he had suffered injury as a result of the accident.  In the absence of further explanation the only conclusion which could be reached was that there was no "mistake" or "other reasonable cause" within the meaning of the proviso.  In the absence of that explanation it is not strictly necessary for me to deal with the alternative contention that the excuse given, but which cannot be said to be necessarily connected with the relevant period, sufficed.  Not wishing to diminish one's prospects of employment, when a person is able to cope with a limited disability, furnishes a reason for not making a claim which is understandable.  But that may not suffice as a satisfactory explanation for the failure.  Proviso paragraph (ii) requires that it be "occasioned by …. Other reasonable cause".  Unlike proviso (i), this proviso does not excuse inaction where there is no prejudice.  And the words of proviso (ii) set out furnish little guide to what the 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 Harbour 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.

1. Because the applicant delayed making the claim for at least 18 years the Commonwealth is prejudiced because the employment records, including medical records, cannot now be found, due to the effluxion of time. 

2. The decision under review will be affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed:         .....................................................................................
  Associate

Date/s of Hearing  23 July 2001
Date of Decision  16 August 2001
Applicant  In person
For the Respondent                 Miss Ford, Counsel