Re Nolan and Military Rehabilitation and Compensation Commission
[2012] AATA 454
•19 July 2012
[2012] AATA 454
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1958-1960
Re
Philip Nolan
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 19 July 2012 Place Adelaide The decisions under review in each of applications 2011/1958, 2011/1959 and 2011/1960 are affirmed.
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Senior Member K Bean
CATCHWORDS
COMPENSATION – Claim for hearing loss, shrapnel injury and burns – Whether claim out of time - Whether prejudice to respondent – Whether delay in making claim and giving notice occasioned by mistake, absence from Australia or other reasonable cause – Whether lack of awareness of injury relevant where applicant ignorant of right to claim – Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 124
Commonwealth Employees' Compensation Act 1930 (Cth), s 16
CASES
Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242
Commonwealth of Australia v Connors (1989) 86 ALR 247
Muras and Department of Defence (1998) 52 ALD 579REASONS FOR DECISION
Senior Member K Bean
19 July 2012
INTRODUCTION
The applicant, Mr Nolan, is currently 77 years old. As a young man, he rendered service with the Australian Army and the Citizen Military Forces (CMF) between 27 April 1954 and 30 March 1967. Whilst he was still a member of the CMF, between 1960 and 1962, Mr Nolan was also employed as a steam engine driver with South Australian Railways and subsequent to that he was a farm manager for many years.
On 12 April 2010, Mr Nolan lodged a claim for compensation[1] in which he sought compensation in respect of three injuries which he claimed to have sustained during his military service. Those injuries included damage to his hearing and a shrapnel wound to his face.
[1] T10/52.
Mr Nolan’s claims were subsequently rejected, both at first instance and on reconsideration, largely because they had not been lodged within the required timeframe. However Mr Nolan has now sought review of the relevant reconsideration decisions, giving rise to these proceedings.
I propose to first discuss the injuries the subject of Mr Nolan’s claim for compensation, before setting out the applicable statutory framework and identifying the issues which arise from it.
THE INJURIES
In his claim for compensation Mr Nolan described the injuries he had suffered as follows:
1Hearing loss due to acoustic trauma.
2Live firing on ranges without protective aids.
Shrapnel fragment to lower face. Caused by grenade lobbing to [sic] close to grenade bay. During live grenade practice.
3Burn to chest in 4 camp hospital. Caused by boiling water and friars balsam being accidently spilled on my chest by attending nurse.[2]
[2] PT10/55.
Mr Nolan elaborated further on this claim in subsequent statements provided to the respondent, to this Tribunal and in his oral evidence. In relation to the hearing loss claim, in a supporting statement provided to the respondent he said:
“During my service time both as a national serviceman and continued on with the C.M.F ove [sic] a period of 12 years. I was required as an infantry soldier to attend live firing exercises on rifle ranges. These live firing exercises were carried out – without ear protection. This is what I attribute as the causal factor in my now claimed hearing loss”.[3]
He also added:
“To say also that I have prejudiced my claim by not submitting a claim within 6 months of service is unreasonable. As the effects of live firing trauma to the ears would become evident in later years”.[4]
[3] T15/67.
[4] T15/67.
In a statement provided to the Tribunal in relation to the shrapnel fragment injury, he stated as follows:
“Lower face
Fragment of hand grenade hit right mid cheek. Over last 57 years has slowly moved below mouth and now below left side of mouth.”[5]
In an earlier statement provided to the respondent, he said:
“While at Woodside between 27/4/54- 3/8/54 – live hand grenade was dropped in pit … small fragment in Right cheek it caused Bleeding.”[6]
[5] Exhibit 2.
[6] T7/46.
In relation to his chest burns, Mr Nolan said these occurred after he was admitted to 4 Camp Hospital when a nurse dropped a bowl of “friars balsam” on his chest. He said this resulted in a nasty burn with blisters over his face and neck. The blisters on his chest were subsequently burst by a military doctor who placed a towel over the blisters and hit them with his open hand.[7]
[7] T7/46-47.
Mr Nolan’s statements in relation to his injuries and how they occurred have been entirely consistent and I accept his evidence as to how and when each of the injuries occurred, and that his burns and shrapnel injury each occurred in 1954.
However that still leaves the question of whether, under the applicable statutory framework, the respondent was correct to reject Mr Nolan’s claims on the basis that they had not been made within the required timeframe.
STATUTORY FRAMEWORK AND ISSUES
The relevant compensation Act which is currently in force, the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) came into effect on 1 December 1988. Section 124 of that Act provides that compensation continues to be payable for injuries suffered prior to the commencement of that Act if compensation was or would have been payable under the applicable prior Act.
In Mr Nolan’s case, assuming for present purposes that each of the injuries for which he has sought compensation is an “injury” rather than a “disease” as defined in the SRC Act, then it appears that each of those injuries was suffered between 1954 and 1967, during the currency of the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act).
As to the time within which a claim for compensation was required to be made under that Act, s 16(1) of the 1930 Act provided that :
“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 the 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.”
It is clear that Mr Nolan did not make a claim for compensation in respect of or give the required form of notice of any of his claimed injuries prior to lodging his claim for compensation in April 2010.
Subject to one other issue to which I will return below, it therefore follows from the above statutory framework that the main issues currently before me are:
(a)whether the Commonwealth is prejudiced by Mr Nolan’s failure to give notice within the required timeframe; and
(b)if so, whether his failure to give notice and make a claim within the required timeframe was occasioned by “mistake, absence from Australia or other reasonable cause”.
Whilst it is clear that two of the injuries complained of by Mr Nolan, namely the “shrapnel fragment” injury and the burns injury, were injuries rather than diseases within the meaning of the SRC Act, it is also appropriate that I consider whether or not his hearing loss is properly regarded as an “injury” or “disease”. It is appropriate that I do this because if Mr Nolan’s hearing loss is properly regarded as a disease, that is likely to have ramifications for which Act is applicable to that claim, and the timeframe within which he was required to give notice or lodge a claim for compensation in respect of that condition.
Given the relevance of that question to the Act which is applicable to Mr Nolan’s hearing loss claim, I will accordingly address that issue first before proceeding to address the other issues identified above.
IS MR NOLAN’S HEARING LOSS AN INJURY OR A DISEASE?
Deputy President Jarvis addressed this issue in a similar context in Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242 where he observed as follows:
“36. In the context of hearing loss claims, I note that in Banks v Comcare, Federal Court, 22 May 1996, 382/1996, and in some other cases in this Tribunal, claims for hearing loss were regarded as claims for an injury, and in other cases in this Tribunal, such claims were regarded as claims for a disease. However, the appropriate characterisation of the cause of the hearing loss was generally apparent from the facts of each particular case. I further note that in Comcare v Rowe (2002) 35 AAR 410 at [8], Merkell J commented that a claim for an injury causing hearing loss might fall within the definition of a “disease”, as well an injury.
37. In Australian Postal Corporation v Burch (1998) 26 AAR 312, Northrop J discussed the concepts of “disease” and “injury” and the use of those expressions in the 1971 Act and 1988 Act. (An appeal against Northrop J’s decision was dismissed: Australian Postal Corporation v Burch (1998) 85 FCR 254). His Honour referred to cases dealing with the rupture of an arterial wall, where it was decided that the rupture amounted to a physical injury, which was distinct from the defect, disorder or morbid condition (or disease) which enabled it to occur. Similarly, in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, Gleeson CJ and Kirby J, after referring to earlier authorities including Burch (supra) said, at [39]:
“All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment … If the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met … .”
38. There is only limited medical evidence before me at this stage that is relevant to the issue of whether Mr Tralongo suffered an injury or disease. [The respondent] tendered an extract from the Internet apparently emanating from the National Institute on Deafness and Other Communication Disorders (exhibit R2). This extract uses the acronym “NIHL” to refer to noise-induced hearing loss. It includes the following information:
“Exposure to harmful sounds causes damage to the sensitive hair cells of the inner ear as well as the hearing nerve. These structures can be injured by two kinds of noise: loud impulse noise, such as an explosion, or loud continuous noise, such as that generated in a woodworking shop.
What are the effects of NIHL?
Impulse sound can result in immediate hearing loss that may be permanent. The structures of the inner ear may be severely damaged. This kind of hearing loss may be accompanied by tinnitus, a ringing, buzzing, or roaring in the ears or head, which may subside over time. Hearing loss and tinnitus may be experienced in one or both ears, and tinnitus may continue constantly or occasionally throughout a lifetime.
Continuous exposure to loud noise also can damage the structure of the hair cells, resulting in hearing loss and tinnitus. Exposure to impulse and continuous noise may cause only a temporary hearing loss. If the hearing recovers, the temporary hearing loss is called a temporary threshold shift. The temporary threshold shift largely disappears 16 to 48 hours after exposure to loud noise.
Both forms of NIHL can be prevented by the regular use of hearing protectors such as earplugs or earmuffs.
What are the symptoms of NIHL?
The symptoms of NIHL increase gradually over a period of continuous exposure. Sounds may become distorted or muffled, and it may be difficult for the person to understand speech. The individual may not be aware of the loss, but it can be detected with a hearing test.” (exhibit R2, page 2)
39. After the conclusion of the hearing before me, I permitted Mr Tralongo to obtain comments from Mr Hains regarding this extract. He reported as follows:
“I have read the enclosed documents and in particular the paragraphs that you have highlighted.
They give a rather unscientific but accurate description of noise induced hearing loss. Temporary threshold shift is the reversible hearing loss that occurs early in the course of the condition and put very simply it is the recovery in hearing that occurs when away from noise and eventually this disappears and the hearing loss is permanent.” (exhibit A10)
40. I understand from exhibits R2 and A10 that eventually, as a result of continued exposure to the relevant noise, the “temporary threshold shift” or recovery in hearing when away from the relevant noise does not occur, thus resulting in permanent damage to hearing. On this understanding of the medical evidence, it appears that there were a series of discrete episodes involving a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (to quote the words of Gleeson CJ and Kirby J referred to above), and that each such event caused an “injury” within the meaning of the 1930 Act. I accordingly consider that Mr Tralongo’s claim should be regarded as a claim for an injury, and not a claim arising from a disease. This conclusion is, I think, also supported by Comcare Australia v McGuire (1996) 68 FCR 329, where the employee suffered a middle ear infection in his ear while undergoing recruit training, and it was found that this resulted in a patent perforation of the ear drum and was properly regarded as an injury, rather than a disease.”
The medical evidence before me as to the nature of noise induced hearing loss is similar to that which was before Deputy President Jarvis in Tralongo. In his report of 22 November 1996 contained in the T documents, Professor Black, a Professor of Otolaryngology has stated as follows:
“Essentially, noise trauma is regarded as occurring only at the time of exposure to severe noise. …Once the individual is removed from the noise, the damage (ie. hearing loss) ceases and further deterioration does not occur unless the individual is exposed to further severe prolonged noise or blast effects…”[8]
[8] T8/49.
Having regard to that evidence, and the reasoning of Deputy President Jarvis in Tralongo, I am satisfied that Mr Nolan’s hearing loss is properly regarded as an “injury” within the meaning of both the SRC Act and the 1930 Act and that it occurred during his service between 1954 and 1967, during the currency of the 1930 Act.
I will accordingly proceed to address the other issues identified above, on the basis that Mr Nolan’s shrapnel and burns injuries were suffered in 1954 and that his hearing loss was also an injury, or a series of injuries, sustained between 1954 and 1967.
IS THE RESPONDENT PREJUDICED BY THE LATE NOTICE?
Mr Colgrove, who appeared as counsel for the respondent, contended that the respondent was seriously prejudiced by Mr Nolan’s delay in giving notice of his injuries, given that his claim was made approximately 56 years after the occurrence of the injuries.
Mr Colgrove pointed out that there was no reference to any of the claimed injuries in Mr Nolan’s service records. Further he also directed my attention to the medical records summonsed from Mr Nolan’s treating general practitioner [9]. He pointed out that the only references in those records to the claimed injuries were a brief reference to Mr Nolan’s claim for noise related deafness and a complaint of “shrapnel in soft tissues on L side of face overlying mandible” on 13 October 2009 and a further note of Mr Nolan referring to each of the three injuries on 27 May 2011.
[9] Exhibit 3, Patient Medical History, Bridge Clinic.
Mr Colgrove submitted that if Mr Nolan had complained of these injuries earlier, the respondent would have had an opportunity to investigate them. However he said this opportunity had now effectively been denied and there were no meaningful records available on the basis of which a useful opinion on causation could be sought.
I accept Mr Colgrove’s submissions in this regard and I am satisfied that there is clear prejudice to the respondent occasioned by Mr Nolan’s failure to give notice of any of his injuries before lodging his claim in 2010.
It therefore follows from the terms of s 16 of the 1930 Act that Mr Nolan’s claim for compensation can only be admitted if he satisfies one of the provisos set out in subs 16(1) with respect to one or more of his claimed injuries.
WAS MR NOLAN’S FAILURE TO GIVE NOTICE OR MAKE A CLAIM EARLIER DUE TO MISTAKE, ABSENCE FROM AUSTRALIA OR OTHER REASONABLE CAUSE?
Before addressing this question more directly, I should first address the question of the period during which one of the provisos must be satisfied. As Deputy President Jarvis noted in Tralongo:
“In Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665, the Tribunal (comprising Hartigan J, Deputy President Forgie and Member Lynch) concluded that the excuses of mistake, absence from Australia or other reasonable cause referred to in paragraph (ii) to the proviso to s 16(1) of the 1930 Act referred to the position during the period specified in that paragraph, namely the period of six months from the occurrence of the accident. This conclusion was based on the inclusion in paragraph (ii) to the proviso of the words “within the period above specified”. Those words are not included in paragraph (i) to the proviso, which merely (relevantly) refers to the “want of” the notice of accident. However, the operative words of s 16(1) require the notice to be served as soon as practicable after the accident happened and before the employee has voluntarily left the employment of the Commonwealth. In my opinion, where paragraph (i) refers to the “want” of notice having been occasioned by a mistake, absence from Australia or other reasonable cause, the paragraph is also referring to the period in which the notice should have been given. I will accordingly consider the position regarding the lack of notice in relation to the period until Mr Tralongo left the service of the Army, and the position regarding the failure to claim compensation in the period of six months after that (since the last day of his service would have been the last possible day on which an accident causing hearing loss could have occurred).”[10]
[10] At [46].
Adopting the same analysis here, the question for me therefore is whether any of the relevant provisos applied within the period during which a claim was required to have been lodged, namely within six months of Mr Nolan’s sustaining each of his injuries, or the period during which notice should have been given, namely “as soon as possible after the accident happened” and before Mr Nolan had “voluntarily left the employment of the Commonwealth”.
In addressing that question, I must have regard to the applicable case law, which has relevantly held that in this context, ignorance does not amount to mistake. As Northrop and Ryan JJ said in Commonwealth of Australia v Connors (1989) 86 ALR 247 at 250:
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”.
In Muras and Department of Defence (1998) 52 ALD 579 Deputy President McMahon also said in relation to the matter then before him (at [20]):
“The only evidence going to mistake or other reasonable cause is the evidence of the applicant that he was unaware that he could obtain compensation from the respondent. His counsel submitted that the mistake or other reasonable cause lay in the fact that it did not occur to Mr Muras that the law would preclude him from obtaining compensation after he realised the long-term consequences of his injuries. This is simply another way of putting the applicant’s position, namely that he was ignorant of his rights. All the cases agree that ignorance does not amount to a mistake or other reasonable cause.”
As the issues to be considered in light of these authorities are slightly different as between Mr Nolan’s shrapnel and burns injuries on the one hand and his hearing loss on the other, it is appropriate that I consider the application of the relevant provisions to his hearing loss separately. I will therefore return to that issue after first considering whether the provisos are satisfied in respect of Mr Nolan’s shrapnel or burns injuries.
Are any of the provisos satisfied in relation to Mr Nolan’s burns or shrapnel injuries?
As to the application of the provisos, clearly the “absence from Australia” proviso is not applicable on the evidence before me. That leaves the question of whether either of the other provisos, namely “mistake” or “other reasonable cause” are applicable.
On the evidence before me, I have found that Mr Nolan suffered both his shrapnel wound and the burns to his chest in 1954. He remained a member of the CMF until 30 March 1967, however at no time prior to leaving the service did he give formal notice of these injuries or seek to claim compensation for them.
In his evidence, Mr Nolan said that he had only become aware that he could make a claim for compensation in relation to the injuries suffered during his service three or four years ago. Effectively, his evidence was that he had not made a claim earlier because he was not aware that he could do so.
It is therefore clear on the evidence before me that the reason Mr Nolan did not give formal notice of his injuries or make a claim in respect of them was that up until the end of his service and indeed beyond that time, he was ignorant of his right to claim compensation. Unfortunately for Mr Nolan, the authorities are clearly to the effect that ignorance of a right to claim does not amount to a “mistake” or “other reasonable cause” within the meaning of the 1930 Act. It follows that Mr Nolan has not established the existence of any of the applicable provisos during the relevant period and therefore his claims for compensation in respect of his shrapnel wound and burns cannot be admitted as they are out of time.
Are any of the provisos satisfied in relation to Mr Nolan’s hearing loss?
In relation to Mr Nolan’s hearing loss, again clearly the “absence from Australia” proviso is not met. However that leaves the question of whether either of the “mistake” or “other reasonable cause” provisos were satisfied at the relevant time.
Turning to that question, the effect of Mr Nolan’s evidence was that he had not become aware of his hearing loss immediately, although he did acknowledge in his evidence that he had started to notice it from approximately his mid-twenties. He said that he had had his hearing assessed in the early 1980s as he knew he was getting deaf. In a statement provided to the Tribunal he stated:
“Late 1960’s noticed getting hard of hearing. Had hearing test early 80’s but could not aford [sic] to have aids fitted.”[11]
He also stated:
“On discharge was not told or given any information of my right to claim for any injuries that occurred during service. Further to this, was never told of any time period to make a claim.”[12]
[11] Exhibit 2, p 3.
[12] Exhibit 2, p 4.
Therefore, in addition to the fact that he was ignorant as to his right to make a claim (which does not satisfy any of the provisos), clearly Mr Nolan was not aware that he had actually suffered a hearing loss until at least the late 1960s. It follows that during the relevant period in which one of the provisos is required to be satisfied, he was unaware that he had in fact suffered any hearing loss. Consistently with the conclusions of Deputy President Jarvis in Tralongo,[13] it would therefore potentially be open to me to conclude that this constituted an “other reasonable cause” for Mr Nolan’s failure to make a claim or give notice in the relevant period.
[13] At [56].
However having regard to the fact that Mr Nolan was ignorant of his right to claim, in my view it is apparent that even if he had become aware of his hearing loss earlier, he would not have made a claim or given notice within the relevant period, being respectively the period before he completed his service or within six months of the ending of his service. He did not make claims for his burns or shrapnel injuries, because he was unaware that he could make a claim. In those circumstances, I do not consider that Mr Nolan’s lack of awareness as to his hearing loss was in fact an operative cause of his failure to give notice or make a claim such that that failure could be said to have been “occasioned” by his lack of awareness. Rather that failure was clearly attributable to the fact that, in any event, he had no knowledge of his right to seek compensation. Indeed this is underlined by the fact that even after Mr Nolan became aware of his hearing loss, in the late 1960s, he did not lodge a claim for compensation until 2010, after he had become aware of his right to claim compensation.
I note that with the introduction of the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act), “ignorance” was specifically included as an acceptable excuse for failure to give notice and/or make a claim for compensation within the applicable timeframe.[14] However, as I have explained above, this was not the case under the 1930 Act, during the currency of which Mr Nolan suffered his injuries.
[14] See 1971 Act, ss 53(4) & 54(6).
For completeness, I also note that after the hearing, the respondent filed and served a medical report of Doctor Matison, Consultant Ear Nose and Throat Surgeon, dated 19 March 2012. In his report, Dr Matison concluded that Mr Nolan was suffering from noise induced hearing loss as a result of his service, which has subsequently been exacerbated by aging. Unfortunately for Mr Nolan however, under the terms of s 16, the substantive merits of his claim are not relevant to the question of whether the claim can be admitted for consideration.
As I am not satisfied that Mr Nolan’s failure to make a claim for or give notice of any of his claimed injuries within the required timeframe occurred by reason of one of the provisos specified in s 16 of the 1930 Act, it follows that he is unable to benefit from the ameliorating provisions contained within s 16 and, because his claims are out of time, they cannot be admitted.
In these circumstances I am obliged to affirm the decisions under review.
DECISION
The decisions under review in each of applications 2011/1958, 2011/1959 and 2011/1960 are affirmed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean ........................................................
Admin AssistantDated 19 July 2012
Date of hearing 15 March 2012 Date of final submissions received 22 May 2012 Applicant In person Other non-legal advocate for the Applicant Mr R Duthie Advocate for the Respondent Mr I Colgrave Solicitors for the Respondent Sparke Helmore
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