Raymond and Comcare - [2002] AATA 781

DECISION AND REASONS FOR DECISION [2002] AATA 781

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/610

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARTIN RAYMOND
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date10 September 2002
PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision of the Department of Veterans' Affairs dated 30 March 2001 which held there was no liability to pay Mr Martin Raymond, the Applicant in these proceedings lump sum payment for permanent impairment for bilateral sensori-neural hearing loss with tinnitus.

[SGD] Ms G Ettinger
Senior Member
CATCHWORDS
Compensation - veteran - claim under 1930 Act - 41 years later – whether mistake of the Commonwealth or the Applicant – whether prejudice to the Commonwealth - decision affirmed

LEGISLATION
Commonwealth Employees' Compensation Act 1930 – 1956 ss 12(1); 16(1)
Safety, Rehabilitation and Compensation Act 1988 - ss 24, 27, 123A, 124
Veterans' Entitlements Act 1986 - s 119(1)

CASE LAW
Re Muras v Department of Defence (1998) 52 ALD 579
Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328
Re Willis v Australian Telecommunications Commission (1989) 19 ALD 665
Commonwealth of Australia v Connors (1989) 86 ALR 247
Telstra Corporation Limited v Roycroft (1997) 77 FCR 358
Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642
Re Loft v Comcare (1996) 52 ALD 606
Secretary of the Department of Defence v Gorton (2000) 98 FCR 497

REASONS FOR DECISION

10 September 2002 Ms G Ettinger - Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Department of Veterans' Affairs dated 30 March 2001 (T36) which stated as follows in relation to a claim by Mr Martin Raymond, the Applicant in these proceedings:
"I refer to a letter dated 15 February 2001 requesting a reconsideration of the determination dated 27 September 2000.
That determination disallowed your claim for compensation for permanent impairment in respect of "bilateral sensori—neural hearing loss".
Having conducted the reconsideration as requested, I have decided it is appropriate to conduct a reconsideration of own motion of the Determination dated 21 June 2000 pursuant to Section 62 of the SRCA. The Determination dated 21 June 2000 accepted liability to pay your compensation for bilateral sensori-neural hearing loss with tinnitis (sic) with the date of the injury deemed to be on 1 January 1958.
decision
I revoke the Determination dated 21 June 2000 which accepted liability to pay you compensation for your condition of bilateral sensori-neural hearing loss and tinnitis (sic). Instead I decide that your claim for compensation for partial deafness -- left ear made by claim form dated 13 May 1999 is disallowed and denied.
Further, and I affirm the Determination dated 27 September 2000."
The Applicant appealed the decision to the Tribunal 5 May 2001.
The Applicant was represented by Mr J Fitzgerald of counsel briefed by Rockcliffs Solicitors and the Respondent, Comcare, by Mr J Johnson of counsel briefed by the Australian Government Solicitor. The Respondent had been shown as the Department of Veterans' Affairs in some of the documentation before the Tribunal, but it was agreed at the hearing that Comcare was the Respondent in this matter.
ISSUE BEFORE THE TRIBUNAL
The Tribunal had to decide whether Mr Raymond was eligible for compensation for bilateral sensori-neural hearing loss with tinnitus pursuant to the Commonwealth Employees' Compensation Act 1930 – 1956, claimed to have been suffered when an explosion occurred during the course of his duties in a centurion tank during May 1959, at a time he claimed he had been wearing faulty protective ear coverings, and had removed the left side.
LEGISLATIVE CONTEXT
The relevant legislation in this matter is the Commonwealth Employees' Compensation Act 1930 – 1956 ("the 1930 Act"), in particular sections 12(1), 16(1) which follow as relevant:
"12.(1) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column.
16(1) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –
          (a) within six months from the occurrence of the accident; or
(b) in case of death – within six months after advice of the death has      been received by the claimant:
Provided always that –
(i) the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.
(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
(3) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner."
I am mindful also that for Mr Raymond to be able to claim entitlement for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act"), I had to consider the transitional provisions pursuant to sections 123A and 124 of the 1988 Act.
PART X - TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS AND REPEALS
Division 1 - Preliminary
…
SECT 123A
Injuries suffered before the commencing day
123A. A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.
Division 2 - Transitional provisions
SECT 124
Application of Act to pre-existing injuries
124. (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.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the       commencement of the 1930 Act-under the 1912 Act;
(ii)    where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the impairment or death occurred; or
(iii)   in any other case-under the 1971 Act as in force when the impairment or death occurred.
(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a) where the impairment or death occurred before the commencement of the 1930 Act-the 1912 Act;
(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-the 1930 Act as in force when the impairment or death occurred; or
(c)in any other case-the 1971 Act as in force when the impairment or death occurred.
(5) A person is not entitled to compensation under section 29 in respect of any period occurring before the commencing day.
(6) A person is not entitled to compensation under subsection 17 (5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, if:
(a) that person received weekly payments of compensation in respect of that death or incapacity in relation to that period under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) that person was not entitled to receive weekly payments of compensation in respect of that death or incapacity in relation to that period:
(i) where the death or period of incapacity occurred before the commencement of the 1930 Act-under the 1912 Act;
(ii) where the death or period of incapacity occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the death or period of incapacity occurred; or
(iii) in any other case-under the 1971 Act as in force when the death or period of incapacity occurred.
(7) The rate of compensation (if any) that a person is, by virtue of this section, entitled to receive under subsection 17 (5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, shall be the same as the rate of compensation that would have been payable to that person in relation to that period, if this Act had not been enacted, under:
(a) where the period occurred before the commencement of the 1930 Act-the 1912 Act;
(b) where the period occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-the 1930 Act as in force during the period; or
(c) in any other case-the 1971 Act as in force during the period.
(8) A person is not entitled to compensation under subsection 16 (1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, if:
(a)an amount was paid in respect of that cost or expenditure under   the 1912 Act, the 1930 Act or the 1971 Act; or
(b) an amount was not payable in respect of that cost or expenditure:
(i) where the liability for the cost arose, or the expenditure was incurred, before the commencement of the 1930 Act-under the 1912 Act;
(ii) where the liability arose, or the expenditure was incurred, after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the liability arose or the expenditure was incurred; or
(iii) in any other case-under the 1971 Act as in force when the liability arose or the expenditure was incurred.
(9) The amount of the compensation (if any) that is, by virtue of this    section, payable under subsection 16 (1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, shall be the same as the amount that would have been payable in respect of that cost or expenditure, if this Act had not been enacted, under:
(a) where the liability for the cost arose, or the expenditure was incurred, before the commencement of the 1930 Act-the 1912 Act;
(b)where the liability arose, or the expenditure was incurred, after the commencement of the 1930 Act but before the commencement of the 1971 Act-the 1930 Act as in force when the liability arose or the expenditure was incurred; or
(c)in any other case-the 1971 Act as in force when the liability arose or the expenditure was incurred.

(10)Where:
(a) proceedings for the recovery of compensation under the 1912 Act, in respect of any injury suffered before the commencement of the 1930 Act, were not maintainable by a person because of section 5 of the 1912 Act;
(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or
(c) a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;
that person is not entitled to compensation under this Act in respect of that injury.
(11) Section 48 does not apply where the damages referred to in that section were recovered before the commencing day.
(12) Section 49 does not apply in relation to a prescribed dependant who recovered the damages referred to in that section before the commencing day."

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ("the T-documents") as Exhibit R1 and the following other documents.

The Statement of Facts and Contentions of the Applicant dated 13 February 2002 was before the Tribunal as Exhibit A1.
The Respondent's Statement of Facts and Contentions dated 17 April 2002, was Exhibit R2.
The only remaining other documents tendered to the Tribunal and accepted into evidence as Exhibit A2, were a letter showing 'Certificate of Service' of the Applicant and his 'Record of Service Card'.

EVIDENCE OF MR MARTIN RAYMOND – THE APPLICANT

Mr Raymond whose date of birth was 15 May 1936, gave oral evidence before the Tribunal. Exhibit A2 which included a handwritten statement of the Applicant, a 'Certificate of Service' and a 'Record of Service Card' indicated that Mr Raymond served on National Service from 10 January 1957 to 17 April 1957 and with the Citizens Military Forces ("CMF"), from 18 April 1957 to 30 June 1960. The 'Record of Service' card indicated that the date of discharge was 25 May 1959. Mr Raymond said that he was under the impression before receiving the documents at Exhibit A2, that his discharge had been in 1958. He also said that when he claimed compensation on 13 May 1999, (T3/5), the date he gave for his discharge as 30 June 1960, was a guess, as was the date of 1958 which he had supplied as the date for the injury.
Mr Raymond gave evidence regarding how the accident which he claimed damaged his ears occurred. He told me that he was out on a range seven to eight miles out of Puckapunyal in May 1959. He said that he was inside a centurion tank and the crew commander was firing rounds with loaded guns. He said that there were headsets with ear phones provided, but that his was not operative and he removed the left hand side one to look around. Mr Raymond reported that there was then an unbelievable noise in the tank. He said that his mouth was open and he felt a "piercing explosion in my left ear". When asked how he felt immediately afterwards, Mr Raymond said that he could not hear at all and added: "It was like my ear had started to explode". He said that it was like the feeling one had before an aircraft descent. Mr Raymond told me that he got out of the tank and reported the incident to the supervising Captain of the range (Droltz), who he said, was concerned, and made notes. Mr Raymond was referred to the Regimental Aid Post ("RAP"), which he described in his evidence as Regimental Medical Centre.
Mr Raymond said that he had been in Puckapunyal twice, once in the winter of either 1957 or 1958, and again, pre-discharge in May 1959. He said that while there he was involved in driving, servicing vehicles, and driving "ferrets" which were light armoured cars. The Veteran said that was the first time he had had anything to do with ferrets. He also said that he learnt to drive centurion tanks there, operated the radio and loaded "20 pounders" (guns).
In cross-examination, Mr Raymond was challenged regarding his recollections of the incident he claimed injured him and for which he sought compensation. He agreed that he now had the documents (Exhibit A2) with which to verify the dates, but said that it had been 42 years previously, and he did recall that the incident happened three to four days before his discharge. When Mr Johnson suggested to Mr Raymond that the date of the incident had been fabricated for purposes of assisting his case, the Veteran did not agree with that proposition.
Mr Raymond said that it was either an RMO or an orderly who treated him at the RAP, giving him cottonwool dipped in a solution for his ear, and that he rested in the barracks immediately after that. Mr Raymond said that he could not remember how his ear felt on that day, except that he had cottonwool in it.
He did recall that he was asked to return to the RAP the day following the incident, and said that the ear was settling down and that he was back servicing tanks. He said that he saw the RMO a second time and was told: "she'll be right mate".
Mr Raymond said the incident must have happened on a Tuesday or Wednesday and that he returned to Parramatta for discharge on the following Sunday morning, although I noted that later on in the evidence he said it was Saturday. The Veteran remembered however, that even with his injured ear he returned to training on the Friday before discharge. Mr Raymond recounted that Captain Droltz accompanied the group on the train to Parramatta and in regard to the ear, stated: "It often happens – she'll be right mate". Mr Raymond said that Captain Droltz did not give him any information about what he could do about the ear, or any instructions. On discharge there were various documents to sign and various people involved, including another Captain and a Sergeant Quarter Master he said.
Mr Raymond said that some weeks after discharge he had earache, and attended at a doctor. He was given medication, drops, "the normal stuff" he said. Mr Raymond said that after discharge he worked for the Daily Mirror as a labourer and circulation worker.

When questioned about how his ear was three months post discharge, Mr Raymond said that he had trouble and the ear ached from time to time, (clarified to be, maybe twice). He also said that he had tinnitus but did not know what it was at the time.
When cross-examined about how his ear was after the first six months had elapsed after the incident, Mr Raymond said that he had earache which recurred from time to time.
When questioned about how his ear was two years after discharge, Mr Raymond said that he continued with medication and cottonwool in it to protect the ear from paper dust at work. He said however that being young and tough, he did not think what would happen with his ear into the future.
When questioned about how his left ear was at present, Mr Raymond said that it was as before, that he had problems from time to time, but not as often as he used to. Mr Raymond added that he kept cottonwool in his ear and as a result, could not wear a hearing aid in that ear.
Mr Raymond said that he suffered tinnitus continuously from the time of the injury in May 1959, which was more noticeable at night, and had his first hearing aid in 1979 or 1980. He added however that he first noticed hearing loss when he was in a crowded situation from approximately 1969 or 1970, and that he had learnt to lip read.
When Mr Johnson asked Mr Raymond whether he claimed that the incident on the centurion tank caused immediate loss of hearing, Mr Raymond said that it was temporary. He added however that he continued to have problems, and that he had an earful of cottonwool all the time, which contributed to being partially deaf. The Veteran said that since leaving the Army he had seen a large number of doctors whose names he could not recall, and received continuous treatment for his ear.
As part of his evidence in chief, Mr Raymond detailed the subjects covered in his induction and instruction, which lasted 98 days. He emphasised that the trainees were told what was expected of them, that they were to do as they were told at all times, and that if they did not, they would be incarcerated at Holsworthy. He said that they were instructed to perform their duties according to military law, to respect officers, to salute when passing officers, how to address officers, and to not refuse any reasonable request. He said that a few days after induction, the men were shown films on health and illnesses and told where to find help if required, for example from the Salvation Army or chaplains.
He said however that never in the whole time he was in the Army or in the two years after he joined, were the men told about or shown anything about their rights under the law. He also told me that he was unaware until recently informed by the RSL, of his rights to make a compensation claim.
When cross-examined by Mr Johnson regarding work, Mr Raymond indicated that he had been able to work in a range of occupations after discharge, albeit with some discomfort in his ear. He indicated he had a break after leaving the Army, then joined the Daily Mirror (News Limited), and then the Police Force. Specifically he gave evidence with regard to his time in the Police Force (PT25/35), where he worked for approximately four years from 1962. He said that he was able to carry out all the general duties there, including speaking to witnesses and going to court. Mr Raymond also said that he had sales jobs from approximately 1966, but could not remember the exact details. He said that when he was in sales for car companies he was able to speak to the customers face to face and on the telephone. I noted at T19/26, his own handwritten statement of 11 February 2000, that Mr Raymond had been employed in sales from 1963 – 1987 when he joined the NSW Transit Authority from where he was "retrenched due to a knee injury" in 1991.
When cross-examined regarding his knowledge about claiming for the injury to his ear, Mr Raymond said that if he had known he could claim, he would have done so.
SUBMISSIONS AND CONCLUSIONS
I must take into account all the evidence, both written and oral, submissions of the parties, legislation and case law to make the correct and preferable decision regarding Mr Raymond's entitlement to compensation for an incident he claimed occurred on a centurion tank during his service, and which he claims has resulted in a compensable injury, namely bilateral sensori-neural hearing loss with tinnitus (section 12 of the 1930 Act). For the Applicant to succeed, I must be satisfied to the requisite standard that the Respondent is not prejudiced by the failure of the Applicant to notify the accident within six months of its occurrence, and that the failure to do so was occasioned by mistake, absence from Australia or other reasonable cause (section 16 of the 1930 Act). I noted that absence from Australia was not relevant to Mr Raymond's case, but the other indicia required examination.
There was no disagreement between the parties, and I accepted that Mr Raymond whose date of birth was 15 May 1936, served his country on National Service and in the CMF between 1957 and 1959. Notwithstanding Mr Raymond's recollections regarding his date of discharge as given in documents at T8/13 and T3/5 (30 June 1960), the dates given on Exhibit A2 on the 'Record of Service Card' was 25 May 1959, and the date on the 'Certificate of Service' for the CMF discharge was 30 June 1960. I did not consider Mr Raymond's error in recollection to have any particular impact on my decision making in this matter.
I was mindful of both Mr Fitzgerald and Mr Johnson's submissions regarding the legislation at the commencement of the hearing, and Mr Fitzgerald's interest in introducing some old English cases as authority in support of Mr Raymond's claim. He had not referred these to the Tribunal in advance of the hearing. Not surprisingly Mr Johnson opposed Mr Fitzgerald's suggestion that the Tribunal adjourn to research these authorities and hear submissions with regard to them. Having heard the submissions, mindful of the obligations of procedural fairness, and being satisfied that the Applicant had as much opportunity to be heard as required, I decided to proceed with the current Australian case law which binds me and is relevant to the 1930 Act. I moved then to consider Mr Raymond's claim in the context of the 1930 Act, the transitional provisions of the Safety, Rehabilitation and Compensation Act 1988, and the relevant case law. I moved to consider the submissions of the parties.
Mr Fitzgerald submitted Mr Raymond's evidence was that he was subjected to a loud explosion, an accident which caused bilateral sensori-neural hearing loss and tinnitus while in a centurion tank approximately a week prior to discharge from the Army in May 1959, and that the exact date was not material. He submitted that guns were fired during training, and that this blew out Mr Raymond's hearing. Mr Fitzgerald referred to Mr Raymond's evidence that he had reported the incident to his tank commander and to the RAP on the day of the incident, and on the next day. Some two to three days later, Mr Raymond had travelled to Sydney for discharge, he said. Mr Fitzgerald submitted that Mr Raymond had not been given any information regarding compensation rights or any information in that regard prior to the accident, or during his induction training. He submitted Mr Raymond had, upon reporting the accident, been reassured by his supervisor, Captain Droltz, that this was a "regular accident". He also submitted that there had been no discharge medical examination carried out, and that Mr Raymond had not been aware of his rights to claim for compensation until 1999, when he had in fact made his claim.
The results of the accident suffered in May 1959 Mr Fitzgerald submitted, were tinnitus, which Mr Raymond developed after the accident and from which he continues to suffer, with its effects worst at night, and periodic ear ache. Mr Fitzgerald submitted that Mr Raymond had suffered loss of hearing from the 1960s.
Mr Johnson conceded on behalf of the Respondent that Mr Raymond had been unaware of his rights with regard to compensation and that he had therefore not made a claim until May 1999. Mr Johnson acknowledged Mr Raymond's evidence in which he stated that had he known the time frame for claiming compensation was six months, he would have done so within the specified period.
I noted a report of Australian Hearing Services, a Commonwealth Government Authority incorporating the National Acoustic Laboratories dated 1 June 2000 and 4 May 2000 at T25. The results in summary indicated Mr Raymond had mild sensori-neural hearing loss in the right ear and moderate loss in the left ear with a recommendation that a hearing aid be fitted for the left ear. At PT25/37, the Examining Audiologist opined that the hearing loss and tinnitus was "totally related to Commonwealth employment", and were permanent conditions. It was on the basis of this report that the Department of Veterans' Affairs requested Mr Raymond to fill out the questionnaire with regard to permanent impairment at T32. The decision was then made on 27 September 2000 (T33), that:
"We have been unable to locate records that show you suffered any hearing loss up to the time you discharged on 30 June 1960. As four decades have now elapsed between the date you left military employment and the date of the audiogram you have supplied, sufficient doubt exists to prevent your claim from succeeding.
It is no longer possible for you to prove that your present hearing loss has been caused by noise exposure before 30 June 1960, rather than by noise exposure suffered after this date in circumstances unrelated to your military employment."
I did not have evidence or submissions before me indicating that the Respondent challenged the finding that Mr Raymond suffers hearing loss as found at T25, and I accepted the report at T25 as a statement of that. There was no evidence before me to satisfy me that Mr Raymond had been exposed to other stimuli which could have caused or exacerbated his hearing loss since the incident on the tank in May 1959, and I have therefore accepted his evidence and formed the view that it was caused by the explosion to which he was subject.
I was mindful that the legislation in matters such as these is beneficial, and that I am entitled to take into account the paucity of defence records which occurred in the period in question (section 119(1) of the Veterans' Entitlements Act 1986) which follows as relevant:
"Veterans' Entitlements Act 1986
Part VIII - General Provisions Applicable to Pensions etc.
119 Commission not bound by technicalities
(1)In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;

(b)a review, under Division 16 of Part IIIB, of a decision of the Commission with respect to a pension or qualifying service;

(ba)a review, under Division 16 of Part IIIB, of a decision of the Commission under Part IIIAB (pension bonus); or
(c)a review, under section 31, of a decision of the Commission with respect to a pension under Part II or IV or an attendant allowance under section 98;
(d)the suspension or cancellation, under subsection 31 (6), of a pension under Part II or IV or an attendant allowance under section 98, the decrease in the rate of such a pension or allowance under that subsection or the increase in the rate of such a pension or allowance under subsection 31 (8);
(da)a review, under Division 7 of Part IVA, of a decision of the Commission with respect to an advance payment of an amount of pension;
(e)the suspension, cancellation or variation of a pension; or
(ee)a review, under subsection 115 (1), of a decision of the Commission in respect of an application for an allowance or benefit specified in that subsection;

the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68 (1), was not reported to the appropriate authorities.

…"

Having accepted then that the incident in May 1959 caused Mr Raymond's hearing loss, I had still to consider his position pursuant to section 16 of the 1930 Act, that is whether his claim could be considered outside of the six months period in which he was required to lodge a claim, and whether he suffered incapacity as a result of the incident.
consideration of section 16 of the 1930 ACT
Mr Fitzgerald in referring to section 16 of the 1930 Act, acknowledged that there was a notification requirement of six months with regard to claims for compensation in section 16(1)(a) of the 1930 Act, but submitted that pursuant to section 16(1)(i) of the 1930 Act, the Commonwealth was not prejudiced by the absence of notification because Mr Raymond had notified the Army of the incident the day it happened in May 1959. The employer therefore knew of it at the outset Mr Fitzgerald submitted, and Mr Raymond could not be held responsible for the absence of records, particularly as there had been no medical examination conducted on discharge.
I was mindful that notwithstanding that the Respondent had conceded Mr Raymond did not know of his rights within the six month period following his accident, and indeed accepted that had he known he would have made a claim as appropriate, Mr Johnson submitted that pursuant to Re Muras v Department of Defence (1998) 52 ALD 579 notification of the accident as soon as practicable after it had happened, and a claim for compensation within six months from the occurrence of the accident were required for the claim to be admitted or entertained. Mr Johnson referred me to paragraph 24 of Muras (supra), where Deputy President McMahon stated as follows:
"The applicant did not suffer a latent injury. The effects of the motor vehicle accident were frank and immediate. From the very beginning, the applicant was aware of the seriousness of his injuries. He continued to be aware during the six months period, when notice should have been given, and a formal claim should have been made. It is during this six months period that one must look at claims of the existence of mistake or other reasonable cause: Re Willis and Australian Telecommunications Commission (1989)19 ALD 665; 10 AAR 382 at 394. It could not be said in this case that mistake as to the benign nature of the injuries may have caused a want of notice."
Mr Fitzgerald submitted that the situation in Muras (supra) was entirely different in that Mr Muras attended at a naval hospital for treatment, but that he did not actually report his accident as Mr Raymond had. I was mindful of the evidence of Mr Raymond that he had reported the incident to Captain Droltz immediately after it occurred, and twice attended at the RAP in that regard. I noted further that Mr Fitzgerald also submitted that Mr Raymond could have been, but was not examined on discharge.
Mr Johnson, referred also to Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328, submitting in regard to section 16 of the 1930 Act that "admit" in the section was pursuant to the abovenamed case intended to be read to mean "entertain" or "consider on the merits", rather than "grant". Ellicott J had stated at 334: "The word 'admissible' according to the Shorter Oxford English Dictionary means allowable". I noted further that in Scott-Holland (supra) at 334, Ellicott J had referred to Australian National Airlines Commission v Cassidy (1964) 110 CLR 172, stating:
"In Australian National Airlines Commission v Cassidy (1964) 110 CLR 172; [1964] ALR 780, it was held that the word 'admit' in s 16 of the 1930 Act meant 'entertain' not 'grant'. In other words, it meant that the Commissioner should not hear a claim. This connotation of the word is, however, not in dispute in this case. The appellant argued the matter on the basis that 'admit' in s 16 meant 'entertain'.
In my opinion, the Tribunal did not err in law in holding that the two claims relating to physical injury should not have been entertained by the Commissioner's delegate. The correct interpretation of s 104(12)(b) is that it was intended to ensure that a person who suffered injury whilst the 1930 Act was in force the symptoms of which were then apparent would have no greater right of recovery under the 1971 Act, so far as that right was confined by obligations to give notice and make a claim, than was had under the 1930 Act.
When the words 'a claim by a person under the 1930 Act was 'not admissible' are read in the light of Cassidy's case I think they mean 'a claim by a person under that Act would not have been entertained.'"
Mr Johnson also referred me to ReWillis v Australian Telecommunications Commission (1989) 19 ALD 665 where I noted the Tribunal held that it had been reasonable for a person in that applicant's situation not to give notice of his early (1956 & 1957) injuries. It was therefore held in that case, that the applicant's failure to serve notice of those injuries and to claim compensation in respect of those injuries within the relevant periods had been occasioned by "reasonable cause" within the meaning of section 16 of the 1930 Act. The Tribunal in that case had therefore held that it was entitled to entertain the applicant's claim for compensation.
Mr Johnson, relying on Commonwealth of Australia v Connors (1989) 86 ALR 247 submitted that Mr Raymond's ignorance of his rights was insufficient as a ground. I noted their Honours Northrop and Ryan JJ who stated at 250 that:
"From the authorities it is clear that in this context the word "mistake" includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other "reasonable cause".
I was mindful also of Mr Johnson's reference to Telstra Corporation Limited v Roycroft (1997) 77 FCR 358, where North J at page 367 in referring to various authorities, stated as follows:
"As these authorities show, there is a thin line between "mistake" and "ignorance". If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence, as Keely J pointed out in Connors."
In regard to section 16 of the 1930 Act, I further noted Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642 in which Mr Fitzgerald had also appeared. Moore J in that case, dismissed the appeal by the Secretary of the Department of Veterans' Affairs against the decision of the Tribunal which, relying on Telstra Corporation Ltd v Roycroft (supra), held that there had been no mistake and Mr Studdert had "reasonable cause" for late notice of his claim. That case can be distinguished as far as Mr Raymond goes because there were in fact military instructions extant at the time of Mr Studdert, whereas when Mr Raymond was injured, there was no obligation pursuant to section 16 of the 1930 Act to notify him of compensation rights.

I noted in Re Loft and Comcare (1996) 52 ALD 606, also a case where the Applicant did not make a claim until many years outside the six month period specified in the 1930 Act, that the Tribunal found a reasonable cause could be construed pursuant to section 16 of the 1930 Act. Senior Member Dwyer in that case, gave weight to the fact that on the basis of Army medical records and the fact that Mr Loft had been hospitalised and absent from duty, the onus was (based on military instructions), on the medical officers and commanding officers to assist with compensation claims.
I find that the abovenamed cases and evidence before me established to my satisfaction according to the relevant tests that Mr Raymond suffered hearing loss in the accident in May 1959 as claimed. I was satisfied he was not examined on discharge in May 1959 and not informed of his rights to claim compensation. I was further satisfied that this was not a requirement under the 1930 Act. Thus he did not know of his rights to compensation until shortly before he made his claim in May 1999.
whether prejudice to the commonwealth pursuant to section 16(1) of the 1930 act
I am mindful that prima facie time limits are specified in legislation so that matters can be attended to in a timely manner and to ensure that documentation is intact and witnesses available as necessary.
Mr Fitzgerald submitted that Mr Raymond had suffered an accident some days before discharge, notifying it to Captain Droltz and to the RAP immediately as well as on the following day. He had not been afforded a medical examination or advice on compensation on discharge, Mr Fitzgerald submitted. If there was prejudice to the employer due to a lack of records, then that was as a result of mistake of the employer, not Mr Raymond, he submitted.
Mr Johnson submitted that Mr Raymond had not made a statement or claim in writing at the time of the injury, and that the Repatriation Department could not locate any documents with regard to the injury or treatment for it. Further there was a conspicuous absence of specialist medical evidence he said. He submitted there had been no opportunity for evaluation of the causation and no information regarding the nature and extent of the impairment, if any. The Respondent had lost the opportunity to investigate the claim and further there was no witness with any actual recollection of the incident. Mr Johnson submitted that the Applicant had based his evidence on documents not before the decision maker which were served at the hearing, and submitted that the Respondent could not confirm or deny their accuracy.
Mr Johnson queried the reliability of the Applicant's evidence given he had provided several versions of dates in his claims.
I was mindful that the issue of paucity of documentation often arises in this Tribunal in matters relating to periods in the past. As Mr Raymond was in the Army and claims to have been injured during that service, I consider that I am entitled to give consideration to that issue pursuant to section 119 of the Veterans' Entitlements Act 1986. I find therefore that prejudice as claimed by the Respondent in pursuant to section 16(1) of the 1930 Act is not made out.
Notwithstanding Mr Johnson's submissions regarding the unreliability of the evidence of Mr Raymond, I accepted that the correct dates of service are contained in Exhibit A2, and I further was satisfied to the requisite standard that the noise of the explosion to which he was subject on the centurion tank during May 1959, caused an injury to his hearing (T25).
mistake pursuant to section 16(1) of the 1930 act
Mr Fitzgerald submitted that if there was a mistake which caused Mr Raymond to make his claim for compensation well after the six month statutory period, then it was not Mr Raymond's mistake, but a mistake of the Commonwealth.
He submitted that Mr Raymond had done all he could. He had suffered an accident some days before discharge, notifying it to his Captain and to the RAP immediately as well as on the following day, and not being afforded a medical examination or advice on compensation on discharge.
Mr Johnson referring to Mr Fitzgerald's submission that there may have been a mistake made by the employer in failing to give information to Mr Raymond about his rights to compensation, submitted there had in fact been no evidence that a mistake had been committed, and there was no obligation on the employer to inform the employees of their rights to compensation under the (1930) Act. The fact that personnel were not told about rights to compensation may have been deliberate, but there had been no mistake he submitted.
I noted in Commonwealth of Australia v Connors (1989) 86 ALR 247 that Mr Connors' ignorance of his rights was insufficient as a ground to establish mistake pursuant to section 16 of the 1930 Act. I noted their Honours Northrop and Ryan JJ in Connors (supra), who stated at 250 that:
"From the authorities it is clear that in this context the word "mistake" includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other "reasonable cause".
Mr Johnson submitted that Connors (supra) stood for the proposition that ignorance alone would not suffice in regard to reasonable cause, and that if the Veteran did not know his rights under the legislation that was insufficient to satisfy "reasonable cause" in section 16(1)(ii) of the 1930 Act. It was his act or omission which prevented the claim being made he submitted.
I was mindful also of Mr Johnson's reference to Telstra Corporation v Roycroft (supra) where North J in referring to various authorities, stated as follows:
"As these authorities show, there is a thin line between "mistake" and "ignorance". If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence, as Keely J pointed out in Connors."
I further noted the case of Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642 in which Mr Fitzgerald had also appeared. Moore J in that case, dismissed the appeal by the Secretary of the Department of Veterans' Affairs against the decision of the Tribunal which, relying on Telstra Corporation Ltd v Roycroft (supra), had held that there had been no mistake and Mr Studdert had "reasonable cause" for late notice of his claim.
That case can be distinguished as far as Mr Raymond goes because there were in fact military instructions extant at the time of Mr Studdert, whereas when Mr Raymond was injured, there was no obligation pursuant to section 16 of the 1930 Act to notify him of compensation rights.
I was mindful there was no obligation pursuant to the 1930 Act to notify the Veteran of his rights to claim compensation for injury, and mindful also of Mr Raymond's evidence that the Army did not provide any instruction in that regard during induction or training.
I was satisfied that applying the case law as cited above, Mr Raymond could not establish mistake as a reason for not notifying a claim in time. I moved then to consider whether the late claim could have been due to any "other reasonable cause" pursuant to section 16(1) of the 1930 Act.
whether 'other reasonable cause' pursuant to section 16(1) of the 1930 act
In making his submissions in regard to "other reasonable cause" in section 16(1) of the 1930 Act, Mr Fitzgerald referred to previous legislation and old cases, submitting that the relevant principles were a mutuality of rights and obligations between the worker and the employer. Mr Fitzgerald accepted that there was no requirement in the (1930) Act for the employer to publicise the employee's rights to compensation. Mr Johnson submitted that the relevant legislation covering Mr Raymond was the 1930 Act and that other legislation was irrelevant to this matter. I noted the submissions regarding other legislation and old cases, but hold that in deciding this case, I am bound by the 1930 Act, the transitional provisions of the 1988 Act and the relevant case law as discussed.
Mr Fitzgerald submitted, that the "reasonable cause" in this case arose on the basis that Mr Raymond suffered an accident some days before discharge, notifying it to his Captain and to the RAP immediately as well as on the following day, and not being afforded a medical examination or advice on compensation on discharge.
I was mindful of the submissions that "reasonable cause" should be viewed in light of the employment within the military regime, noting also that Mr Fitzgerald's submission was one had to take into account the total nature of the employment. I was mindful of Mr Raymond's evidence regarding the subject material of the induction into the Army which mainly consisted of matters relating to discipline, and that no information regarding rights to compensation was given at that time, or indeed at discharge.
Mr Johnson conceded on behalf of the Respondent that Mr Raymond did not make a claim within the six month period after the incident he claimed occurred in May 1959, because he did not know his rights in that regard. Mr Johnson referred to his cross-examination of Mr Raymond where the Applicant had said that had he known of his rights to claim for compensation within six months of the accident, he would have done so. I accepted that evidence, but did not find that it established any "other reasonable cause" within the terms of section 16(1) of the 1930 Act.
I moved then to consider the implications of section 12 of the 1930 Act.
consideration of section 12 of the 1930 act
Mr Johnson referring me to section 12 of the 1930 Act, submitted that this had not been addressed as there had been no evidence led regarding any incapacity for work by Mr Raymond. Mr Johnson acknowledged Mr Raymond's evidence regarding tinnitus, and the periodic earache, but submitted that Mr Raymond had worked successfully in a range of occupations after discharge. Mr Johnson submitted that whilst working in sales, the Applicant had had contact with customers, and been required to communicate, as also when he worked as a police officer attending court and speaking to witnesses.
Mr Johnson also submitted that Mr Raymond exhibited no hearing problem during these proceedings. This was not disagreed with by the Applicant, and I noted that notwithstanding his hearing loss, Mr Raymond was able to give evidence and participate in the hearing without any particular distress or assistance.
I accepted that Mr Raymond suffered hearing loss as documented at T25 and accepted his evidence regarding periodic earache and tinnitus, but was satisfied that he had been able to carry out his duties in a range of occupations after discharge, and that he had not therefore suffered compensable incapacity pursuant to the Act.
As to the claim by Mr Raymond for lump sum compensation; I was mindful that for him to be able to succeed in claiming for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988, I had to consider his entitlement pursuant to the transitional provisions pursuant to sections 123A and 124 of the 1988 Act.
I accepted Mr Johnson's submission that lump sum compensation would not be available at all unless Mr Raymond satisfied the tests in section 16(1) of the 1930 Act and liability was accepted which in fact had not occurred.
For the sake of completeness, and given amendments to the legislation which provided for consideration of disease as well as injury, I also considered whether Mr Raymond had suffered a disease, noting this had been was dealt with by Hill J in Secretary of the Department of Defence v Gorton (2000) 98 FCR 497. I was satisfied from the evidence before me that Mr Raymond suffered an injury as claimed and not a disease so I did not further pursue that.
DECISION
The Administrative Appeals Tribunal affirms the decision of the Department of Veterans' Affairs dated 30 March 2001 which held there was no liability to pay Mr Martin Raymond, the Applicant in these proceedings lump sum payment for permanent impairment for bilateral sensori-neural hearing loss with tinnitus.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  23 April 2002
Date of Decision  10 September 2002
Counsel for the Applicant        Mr J Fitzgerald
Solicitor for the Applicant         Rockcliffs Solicitors
Counsel for the Respondent    Mr J Johnson
Solicitor for the Respondent    Australian Government Solicitor