Partridge and Military Rehabilitation and Compensation Commission

[2008] AATA 182

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 182

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600064

VETERANS' APPEALS DIVISION		)
Re		BARRY VAUGHAN PARTRIDGE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member L Hastwell
Dr E T Eriksen (Member)
Mr S J Ellis (Member)

Date4 March 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

COMPENSATION – osteoarthritis of both knees – sporting injuries while in Naval service – date of injury – when did impairment or incapacity begin – delay in making claim – prejudice established – history of being involved in prior litigation – ignorance not established – out of time for bringing claim – decision affirmed

Compensation (Commonwealth Government Employees) Act 1971

Safety, Rehabilitation and Compensation Act 1988 ss 7(4), 53(1), 53(4), 124

REASONS FOR DECISION

4 March 2008   Senior Member L Hastwell
  Dr E T Eriksen (Member)
  Mr S J Ellis (Member)      

1.      Barry Partridge (the applicant) served as a steward in the Royal Australian Navy (the Navy) between 1961 and 1970.  He was an active sportsman throughout his time in the Navy.  He played cricket, Australian Rules football and rugby in the course of his Naval service.

2.      The applicant submitted a claim for rehabilitation and compensation for osteoarthritis of both knees on 19 April 2005.  The respondent has denied liability to pay compensation for this condition.  That decision was affirmed on 15 November 2005 by an internal review officer.  On 8 March 2006, the applicant sought a review of that decision to this Tribunal.

3.      The applicant asserts that he sustained injuries in the course of his sporting career with the Naval service that have contributed to the current condition of osteoarthritis of his knees. 

4.      In 1963, while bowling in a game of cricket in Hong Kong, he twisted and injured his left knee.  In 1966 while playing rugby league for the Navy in Darwin he injured his medial ligament in his right knee and this prevented him from playing sport for some months.  He also asserts that he sustained repeated trauma to both of his knees and his ankles over the many years that he played sport in the course of his Naval service and that this has also contributed to the bilateral knee condition from which he suffers.

5.      The applicant first gave notice of his claim to the respondent on 19 April 2005 when he submitted a claim for rehabilitation and compensation.  In that claim he said that the first time he became aware of suffering any arthritis in his knees was on 4 November 1988 when he underwent arthroscopic surgery to one of his knees.

6.      He further asserts that he first became aware that he could make a claim for compensation for the arthritic condition in November 2004 when he was advised of that possibility by an employee of the Department of Veterans’ Affairs.

7.      Counsel were in agreement that the condition of arthritis is a disease rather than an injury.

preliminary issues

8.      Before considering the issue of liability, the Tribunal must determine the relevant legislative framework to apply in this case.  This will determine the test to apply both with respect to liability and as to time limitation issues that may arise in this case.

9.      Almost 40 years have elapsed since the applicant left the Navy.  He asserts that his Naval service is a contributing factor to his arthritic condition.  The parties agree that the relevant legislation is either the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) or the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act).  The 1988 Act came into operation in December 1988. 

10.     The applicant's case is that he first became specifically aware of his arthritic condition in November 1988 when advised by a doctor that he had arthritic changes in his left knee.  He alleges that he suffered impairment and incapacity arising from his knee problems prior to that date and that the latest point at which he became aware of the knee condition was 1988.

11.     The applicant’s claim for compensation was first made in 2005 at which time the relevant legislation was the 1988 Act.  The date of lodgement of the claim was well outside the time frame provided for in the 1988 Act.

12. Section 7(4) of the 1988 Act provides that in the case of a disease the date of injury is determined as follows:

“(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a)the employee first sought medical treatment for the disease, or aggravation; or

(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.”

13. Section 124 of the 1988 Act provides as follows:

“124  Application of Act to pre-existing injuries

(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;

(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c)in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.

…”

14.      The preliminary issue for the Tribunal to determine is the date of the injury, which will determine which of the two Acts applies in relation to both whether the claim is within time and whether liability can be established.

15. Section 7(4) of the 1988 Act sets out the criteria to determine the date of injury. If an injury is a pre-existing injury, that is if the date of injury as defined by s 7(4) of the 1988 Act occurred prior to the commencement of the 1988 Act, then whether the applicant is entitled to compensation under the 1988 Act is determined by whether he would have had an entitlement under the Act in force at the date of the injury.

16.     If, prior to the commencement of the 1988 Act, the applicant sought medical treatment for the condition of arthritis of the knees or was incapacitated from work because of that condition, or was impaired by that condition, then the issue of time limitation and liability is governed by the provisions of the 1971 Act.  Compensation becomes payable under the 1988 Act.  If the date of injury was after December 1988, then the 1988 Act determines time limits and the test to apply for liability.

17.     Initially, counsel for both parties had agreed that the applicable Act was the 1971 Act, based on an understanding that the applicant first sought medical treatment with respect to his disease, namely osteoarthritis of the knees, in November 1988 and within the currency of the 1971 Act.

18.     The evidence as it then emerged in the course of the hearing cast some doubt on that proposition, and in closing the respondent asserted that the date of injury post-dated the 1971 Act and the relevant legislation to apply was the 1988 Act.  The applicant continued to assert that the 1971 Act was the relevant Act to apply.

the hearing

19.     Both parties were represented by counsel.  The T documents were received into evidence.  The applicant gave evidence.  The applicant called Dr Munyard and the respondent called Dr Champion to give evidence.  Both doctors are orthopaedic surgeons.  Where relevant, Exhibits will be referred to.

the applicant’s evidence with respect to the date of the injury

20.     The applicant told the Tribunal that he had suffered pain in his knees from the time of his Naval service onwards.  He said that the pain in his knees had gradually worsened over the years.  He could not explain why there was no reference in his medical discharge examination to any problem with his knees, even though there was a reference to a problem with his great toe.

21.     After sustaining knee injuries while in the Navy, he told the Tribunal that he would always play sport with his knees strapped.

22.     The applicant’s statement asserted that he first become aware that he had an arthritic condition of his right knee when, after sustaining an injury at work to that knee in late November 1988, he underwent an arthroscopy and was told by the doctor that his knee was arthritic.  His evidence with respect to what he was told by the surgeon at that time was “when he approached me the next day, he just said that it was just full of arthritis, and that he just cleaned it up, I think he said”.

23.     The applicant, when questioned about this 1988 injury, then admitted that he was not sure which knee was injured in 1988.  Documents subpoenaed from his former employer, CIG, and from his general practitioner confirmed that the 1988 injury and treatment were to the left knee and not the right knee as he had previously asserted.  The treatment was also by Dr Bauze and not Dr Keane as had previously been stated by the applicant.

24.     In his written and signed statement which was received into evidence as Exhibit A3, the applicant said that he suffered impairment for work arising from his knee problems while operating a milk round between 1977 and 1981.  He claimed that one of his reasons for selling the round was that it had become “too hard on his legs” (Exhibit A3/8).  He said that he was suffering swelling and aching in his knees at the time.

25.     He then commenced work as a driver with Harding’s Crumpets.  He said that he left that employment in 1983 because of knee problems.  He claimed to have continued to suffer swelling and aching of the knee joints at that time.

26.     He then commenced work as a leading hand forklift driver at CIG.  It was while in this employment that he sustained an injury to his left knee in 1988.  He remained in that employment for approximately 10 years.  He sustained the injury when lifting a steel cylinder.

27.     His statement (Exhibit A3) purports to provide a detailed history of any other significant injuries and ailments that he has suffered over the years.  One is left with the impression that apart from the odd cold, a minor left hand injury, a cut hand and a soft tissue injury sustained in a motor vehicle accident in 1991, the only significant and persistent medical problem that has troubled him over the years since leaving the Navy relates to his knees.  A golfing incident in 2001 resulted in arthroscopic treatment of his left knee by Dr Menz.

28.     No collaborative medical or other evidence was provided with respect to the applicant's assertion that he suffered significant problems with his knees such that he suffered impairment and incapacity for employment as long ago as the early 1980s.

29.     It became evident during the applicant's evidence to the Tribunal that he had claimed compensation with respect to the 1988 injury.  The hearing was adjourned to allow the respondent to issue further subpoenas.

30.     When the hearing resumed, evidence obtained under subpoena was available with respect to the applicant's prior medical history. 

31.     That new evidence highlighted gaps and omissions in the applicant’s previous evidence to the Tribunal and in his statement (Exhibit A3).

32.     He had omitted to mention in his statement, in his prior evidence to the Tribunal and in information provided to doctors that he had sustained a right knee injury in 1982 for which he had received medical treatment. 

33.     A medical note produced under subpoena from Sportsmed indicates that the applicant had slipped at a pool and injured his right knee in 1982.  The note, which is contained at Exhibit R4/7, indicates that he consulted a specialist in March 1982 about the knee trauma which had occurred in January of that year.  The applicant reported that there was significant swelling to the knee at the time of the injury and that he had not been able to work for 3 days as a result.  It was noted at the time that there was no history of a previous injury.  Although that injury occurred in January 1982, the doctor’s note indicates that the applicant was still experiencing symptoms from that incident some two months later.  An x-ray was taken at the time.  It appears to record “meniscal lipping”.  The medical notes record that the applicant failed to attend a follow-up appointment.  There was no mention of that particular knee incident in any medical evidence available to the Tribunal after that date.

34.      The applicant did not mention the 1982 injury to either of the two doctors who gave evidence to the Tribunal, nor did he mention it in his evidence to the Tribunal until he was reminded of the incident by counsel for the respondent after medical evidence emerged that referred to that injury.   It appears that Dr Menz was also not aware of the two prior specific injuries namely the 1982 and the 1988 injury when he opined that sport may have been related to the onset of arthritis which became evident in his left knee after treatment for the 2001 golfing injury to his knee. 

35.     The first report of Dr Munyard, an orthopaedic surgeon who gave evidence for the applicant, dated 30 September 2005 (T21) records that the applicant told him that he had sustained a number of injuries to his knees and:

“In particular, he sustained an injury to the medial ligament of his right knee in 1966 in Darwin, when playing rugby.

…

He stated that he also injured his left knee in 1963 playing cricket on HMAS Voyager.  This had required two arthroscopies, one in 1988 and a further in 2001.”

36.     Dr Munyard was not told that the 2001 injury arose from a golfing incident, that the 1988 injury was caused by a fall at work and he was not told of the 1982 incident.  Dr Munyard’s evidence on that point was as follows:

“Well, I assumed that following the two injuries in the navy he hadn’t had any further treatment for his right knee and the left knee – well he’d had what I thought were two arthroscopies as treatment in 1988 and 19 – sorry, correction, 2001.:  (Transcript page 14)

37.     The further documents available at the resumed hearing also established that in addition to the 1988 claim, the applicant had made a number of other work related claims while at CIG and, in addition, he had been the plaintiff in two common law claims.  One of those common law claims arose out of a motor vehicle accident in which he was involved in 1991 and one arose out of the HMAS Voyager (the Voyager) disaster in 1964.  He had also pursued a WorkCover claim with respect to the 1991 motor vehicle accident.

38.     At the resumed hearing, a bundle of subpoenaed documents was received as Exhibit R4 and the material in the documents was useful in providing some contemporaneous and independent evidence of the applicant's health at various stages from 1982 onwards.

39.     Documents summonsed from the applicant’s general practitioner (Exhibit R5) filled in some of his medical history from 1990 until 1994 and from 2001 until 2004. Notes were not available between 1994 and 2001 as the applicant had moved to reside elsewhere and had consulted a different medical practice during those years.

40.     Upon the resumption of the hearing, and as a result of evidence contained in subpoenaed material, it became evident that the applicant was on the Voyager when it sank in 1964, and he pursued a claim arising out of that incident.  His Voyager claim was resolved in the early 1990s.  The litigation occurred over a number of years.  In the context of that litigation, the applicant was seen by a number of medico-legal experts.  The applicant received a large lump sum payment of compensation as a result of that claim.  He was assessed as suffering from significant post-traumatic stress disorder (PTSD).  Three psychiatric reports upon which the parties relied in resolving that claim were contained in Exhibit R4.  The applicant had not mentioned any of this part of his medical history in his statement at Exhibit A3, or in his earlier evidence to the Tribunal.  It represents a significant part of his medical history.

41.     There were three psychiatric reports contained in the subpoenaed documents that were part of the medico-legal evidence used in resolving the Voyager claim.  They portray a person who sustained significant and ongoing psychological injury from the trauma he suffered when the Voyager disaster occurred.  The reports refer to sleep disturbances and nightmares that he experienced from the mid 1960s well into the 1990s and which were attributed to being a consequence of his experience when the Voyager sunk.  There is reference to him suffering tension headaches and to prolonged periods of excessive use of alcohol from the mid 1960s for a period of some years that had a significant impact on his personal life and resulted in the breakdown of his first marriage.  He was prescribed medication at various times to assist him in dealing with symptoms of anxiety and depression.  He was hospitalised for some days after the sinking of the Voyager.

42.     A report of Dr Mendelson dated 12 August 1985 (Exhibit R4) contains the following passages:

“Mr. Partridge told me that he has had no accidents or injuries in the past, no operations, and no illnesses apart from those common in childhood.

…

Mr. Partridge said that he plays cricket with a local club, and said that he had coached a football team up until about three or four years ago.  He said that he gave this up because he had been ‘losing interest’ and also because of his difficulty with concentration.”

43.     The applicant’s work history since leaving the Navy is alluded to in each report and there is no reference to there being any health reason for him leaving jobs.  Rather, it is implied that his inability to settle in employment for many years after leaving the Navy was related to his PTSD.

44.     The applicant’s brother was questioned by Dr Burges Watson, psychiatrist, on 6 June 1986 as to his perception of how the Voyager disaster had affected the applicant.  Some comments attributed to his brother in that report are as follows:

“…

‘He’s very nervous.  He still has nightmares. … He drank more - hit the bottle a bit. …’  He had had ‘a heap of jobs … He’d only hold a job a year or two, then he’d be off’.”

45.     The general practitioner medical notes with respect to the 1988 injury at work were available.  They confirmed an injury to the left knee.  There is no reference in those notes to any arthritis of the knee.  A note made by his general practitioner in February 1989 refers to the knee “coming good”.

46.     The documents from the Highbury Family Practice Unit (the general medical practice attended by the applicant) were received as Exhibit R5.  Those notes cover the period 1990 to 1994 and then 2001 to 2004.  In the period 1990 to 1994 there is no mention of any knee problems, nor is there any mention of prescription of any medication for knee problems.  There is reference to neck problems arising out of the motor vehicle accident in 1991.  The notes covering the period 2001 to 2004 refer to the applicant reporting that he had his cartilage trimmed by Dr Keane in a left knee operation in 1992 and it reports:

“18/6/01

…

L knee op – 92 Dr Keane – cartilage trimmed.

Lately ↑ pain in L knee/playing golf

1/52 ago - twisted/sharp pain

O/E knee exam generally normal no/effusion.

…”

47.     It would appear that at the time that he was involved in a motor vehicle accident in 1991, he was still working as a leading hand cylinder loader (forklift driver).  He worked 7:00am to 5:00pm Monday to Friday and 6:00am to 12:00 noon on a Saturday and was averaging 14 hours overtime per week.

48.     A job description of what was involved in his work as a leading hand cylinder loader was contained in a bundle of documents received under summons from his former employer CIG.  He worked for CIG between 1983 and 1993.  That job description was put to the applicant in evidence and he agreed with its accuracy.  It is contained at Exhibit R4/2.  In addition, those documents contain an interview with his former immediate supervisor, Mr Roxby, and with the personnel manager at CIG.  These interviews took place in 1993.  Both descriptions are indicative of the applicant being required to roll and lift cylinders in the course of his duties which involved manual handling of cylinders.  The job description indicates that cylinders could weigh between 12 kg and 30 kg.  This job description, and the hours that the applicant was working, are not consistent with the applicant’s description of the level of supposed knee pain and limitation in movement he was experiencing during those years.

49.     The applicant injured his left knee while golfing in 2001 as a result of which he underwent an arthroscopy.  Dr Menz carried out that procedure. 

50.     X-rays at the time revealed a tear of the medial meniscus.  A partial medial menisectomy was performed.  It was at that time that Dr Menz mentioned to the applicant that the arthritis may have been related to sport in the Navy.  Dr Menz appears not to have been aware of the prior two specific knee injuries in 1982 and 1988.  Nevertheless, it is notable that in his report of 8 May 2007 (Exhibit A2) he reported that at the time of the 2001 arthroscopy he could find no evidence of any arthroscopic procedure previously undertaken inside the knee joint.  He went on to say:

“… this is certainly not to say that I don't accept that he has had two arthroscopies in the past, but just that no arthroscopic surgery was undertaken by the Surgeon once inside the knee joint.  This would indicate that the arthroscopic surgeries done on those two occasions were diagnostic only, no surgery was undertaken which implies that there was virtually no or insignificant pathology within the knee joint.”

51.     The lack of any arthroscopic procedure inside the knee joint contradicts the applicant’s evidence that the doctor had “cleaned his knee out” in 1988.

52.     The Tribunal found the applicant to be an unreliable witness.  He constructed his evidence to fit the hypothesis that his knee condition relates to sporting incidents during his Naval service many years ago.  The Tribunal formed the view, based on all the available evidence, that he did not provide a truthful account of his medical history to the Tribunal and to doctors considering his condition for medico-legal purposes.  His failure to mention the after effects of the Voyager incident and to admit to prior compensation claims until confronted with the evidence were major omissions in his evidence and went to the issue of credit and whether his evidence should be accepted by the Tribunal.

53.     The Tribunal notes that on an earlier occasion in the Workers’ Compensation Tribunal in South Australia, Judge Stanley had found that the applicant could not be relied upon and was an untruthful witness (R4/3).  The Tribunal formed the same view after considering all available evidence.

54.     It was by reference to medical notes and inconsistencies and omissions in statements made by the applicant that the Tribunal makes the finding, on the balance of probabilities, that the applicant first became aware that he had any arthritic condition in his knees in November 2001 after sustaining an injury while golfing and that he did not suffer any impairment or incapacity arising from an arthritic condition of either knee until a date well after December 1988.  The Tribunal is not satisfied that the applicant had any significant ongoing knee difficulties prior to the late 1990s or the incident in 2001, apart from when he twice sustained injuries when falling on a knee, in 1982 on the right knee and in 1988 on the left knee.

findings of fact with respect to date at which applicant became aware of injury

55.     The Tribunal is satisfied, on the balance of probabilities and based on all the available evidence, of the following facts:

·The applicant continued to play active and demanding sport for some years after leaving the Navy, including Australian Rules football.  He was an active sportsman into at least the mid 1980s.

·The applicant made no mention of any knee problems when he consulted a doctor about a specific injury to his right knee that he sustained when falling on the edge of a pool in 1982.

·The applicant’s work history and the objective evidence available in subpoenaed evidence indicates that he was capable of carrying out heavy manual employment until at least 1993 that required a reasonable level of manual handling, lifting, bending and squatting.  He could work for long hours and regularly worked overtime.

·Nothing in his medical history available to the Tribunal prior to 2001 indicates that he made any complaint of knee problems or sought treatment for knee problems, other than as a result of the specific two injuries referred to in 1982 and 1988.

·Although the applicant claims an arthroscopy was carried out on his left knee in 1988, there is no evidence to support the applicant’s claim that any arthroscopic procedure was carried out prior to 2001.  This is indicative of there being virtually no or insignificant pathology within that joint prior to that time and certainly in 1988 when an initial investigation took place.

·When examined by Dr Menz in 2001, there was evidence of early degenerative changes within his left knee joint.  It is likely this was the first time that he was advised that he had an arthritic condition developing in his knee. 

·Apart from the two knee injuries referred to, the applicant was not aware of suffering from any specific bilateral knee condition before 2001.

·The date of injury for the purposes of considering his claim is after December 1988, and at the latest 2001, when Dr Menz carried out an arthroscopy on his left knee and advised him of degenerative changes in that knee.

provisions with respect to preliminary issue

56. The Tribunal is satisfied that pursuant to s 7(4) of the 1988 Act, the applicant first suffered impairment of his knees after 1988. Therefore, the Tribunal must consider the provisions of the 1988 Act when determining the time frame within which a claim should be lodged or within which notice of injury should have been given by the applicant.

57. Section 53(1)(a) of the 1988 Act requires notice in writing of an injury to be given to the relevant authority “as soon as practicable after the employee becomes aware of the injury”. 

58.     Notice was not given as soon as practicable after the applicant became aware of the injury which was, at the latest, in 2001.

59.     Section 53(3) of the 1988 Act provides an ameliorating provision in the following terms:

“(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.”

60.     The applicant did not give notice of his claim to the relevant authority until 2005 (T4).  This was some four years after he first became aware of the injury.

61.     The applicant is out of time in that he failed to provide the respondent with notice of his claim within six months of becoming aware of the disease in his knees.  He claims this failure to give notice arose out of ignorance on his part. 

62.     The respondent asserts significant prejudice arising out of the delay.  They rely on the affidavit of Paul Ontong dated 16 May 2007, which was received as Exhibit R2.

63.     The applicant concedes prejudice to the respondent, but says that even if the respondent had the opportunity to carry out medical tests at the time that the applicant became aware of the injury, it is a moot point as to whether such tests could have produced any greater assistance.  The applicant’s concession of prejudice was based on their position that the applicant first became aware of the injury in 1988.

64.     The respondent contends that it is inherently unlikely that the applicant did not realise he could not claim for compensation for a service-related condition until 2005 and the claim should be rejected for non-compliance with the applicable time limits.

65.     The Tribunal finds, on the balance of probabilities, that the failure to lodge a notice of claim with the time set out in the 1988 Act caused prejudice to the respondent in this case.  Every year of delay in reporting this injury to the respondent caused further prejudice to the respondent.  Medical evidence is archived or destroyed and any potential witnesses may no longer be available.  If the injury had been reported in 2001, some immediate investigations could have been carried out with respect to both knees to establish the precise state of degeneration of the knees at that time, rather than at a point some years later when the condition has degenerated considerably further. 

66.      Nevertheless, the applicant can still have his claim considered if failure to give notice resulted from ignorance, mistake or from any other reasonable cause.

the applicant’s evidence with respect to delay

67.     The applicant’s evidence was that he was not aware that he could make a claim for compensation for his knee injuries until someone from the Department of Veterans’ Affairs advised him in 2005.  His evidence was that in the Navy he was given no education about making claims and he was not encouraged to be vocal about injuries.  He claimed ignorance about the claims system until 2005.  He gave the following evidence:

“MS HASTWELL:  Mr Partridge, during the period that you were in the services, did you have colleagues who had made claims for injuries sustained in the course of employment?---No.

Did you know people who had injured themselves at work?---While I was in the Navy?

Yes---I mean them days all we used to do was go to sick bay.  We didn’t make claims or - - -

Was there ever any education about being able to make a claim if you injured yourself:---No, never, no.

And you weren’t encouraged to sort of be vocal about the injuries that you had?---No, not really, not in them days, no.”  (Transcript page 33)

68.     As the Tribunal has already noted, it emerged in the course of the hearing that the applicant had pursued a number of claims over the years and had previously brought a claim arising out of his Naval service.

69.     For reasons already stated, the Tribunal does not accept the applicant as being a reliable witness and given his past history of claims that came to light in the course of the hearing.  The Tribunal finds, on the balance of probabilities, that the applicant was aware that he could make a claim for a work related incident at the time that Dr Menz suggested a possible link between his arthritis and his Naval sporting history.  His prior history of claims was not mentioned to the Tribunal until such time as subpoenaed material gave the Tribunal notice of prior claims and the applicant was then forced to admit to their existence. 

70.     Being aware of his ability to lodge a claim, he should have done so as soon as possible after he became aware of his knee problems in the year 2001, and particularly as Dr Menz had suggested to him at the time a possible link with his Naval service.  At that stage the arthritis was at a very early stage and the respondent would have been in a much better position to retrieve medical evidence and have experts look closely at the knee condition and carry out tests at the time to determine the extent of the deterioration at that point in time.

71.     The Tribunal finds that the ameliorating provisions of s 53(3)(c) do not apply to the applicant in this case and he is therefore out of time with respect to bringing a claim under the 1988 Act.

72.     In the circumstances, the Tribunal need not further consider the evidence as to the applicant’s claim.  The Tribunal affirms the decision under review.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell, Dr E T Eriksen (Member) & Mr S J Ellis (Member)

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

Dates of Hearing  23-24 May 2007 & 29-30 August 2007
Date of Decision  4 March 2008
Counsel for the Applicant         Mr S Cole
Solicitor for the Applicant          Hunt & Hunt
Counsel for the Respondent     Ms K Bean
Solicitor for the Respondent     AGS