Re Sandercock and Military Rehabilitation and Compensation Commission
[2013] AATA 517
[2013] AATA 517
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4332
Re
Alan Sandercock
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Professor Robin Creyke, Senior Member
Date 22 July 2013 Place Perth The decision under review is affirmed
...(Sgd) Robin Creyke.........................
Professor Robin Creyke, Senior Member
CATCHWORDS
COMPENSATION – Military Rehabilitation and Compensation – Claim for Hearing Loss and Tinnitus – Whether Injury or Disease Arose in the Course of Employment to the Commonwealth in 1955 – Australian Cadet Corp not Included as Employees of the Commonwealth – Whether Injury or Disease was Caused or Aggravated in Later Service of the Commonwealth – Unsatisfactory Evidence to Conclude the Date of the Injury – Commonwealth Prejudiced by Lack of Contemporaneous Records – No Evidence of Mistake Absence from Australia or Reasonable Cause for Delay in Application
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 (Cth)
Defence Act 1903 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Banks v Comcare [1996] FCA 382
Black v City of South Melbourne [1963] VR 34
Blunden v Commonwealth [2006] ACTSC 58
Comcare Australia v McGuire (1996) 68 FCR 329
Commonwealth v Connors (1989) 86 ALR 247
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Re Campbell and Military Rehabilitation and Compensation Commission [2009] AATA 273
Re Muras and Department of Defence [1998] AATA 645
Re Nolan and Military Rehabilitation and Compensation Commission [2012] AATA 454
Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242
Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382SECONDARY MATERIALS
Dr Harvey Marcovitch (ed), Black’s Medical Dictionary, (42nd edn, 2010)
REASONS FOR DECISION
Professor Robin Creyke, Senior Member
22 July 2013
Mr Alan Sandercock, born 1939, submitted a claim dated 6 July 2011 for rehabilitation and compensation for hearing loss and tinnitus. The initial decision by the Military Rehabilitation and Compensation Commission (Commission), dated 31 January 2012, denied liability for his condition, a decision upheld on review by a Review Officer on 8 August 2012.
Mr Sandercock sought further review by the Tribunal on 27 September 2012. The matter was heard in Perth on 18 June 2013.
Background
Mr Sandercock attributed his initial hearing loss and tinnitus to the firing of a .303 rifle on a rifle range as a school cadet at Northam in May 1955. He claimed that cadets were not provided ear protection.
He undertook National Service for short periods between 1958 and 1959 when he had firearms training with .303 rifles, as well as Bren, Owen and Vickers machine guns. Again no ear protection was provided. In 1957 his hearing was tested on entry to National Service training and he was found to have normal hearing bilaterally since he could accurately hear sounds from a distance of 20 feet.
Between 1962 and 1965 Mr Sandercock served in the Royal Australian Air Force (RAAF) Reserve. His medical records showed him as Fit Class One and his hearing, following testing by ‘forced whisper’, was accurate for 20 feet bilaterally. In 1965 Mr Sandercock applied to join the Royal Australian Navy Reserve. He was not accepted and was told informally that the reason was his high frequency hearing loss. He has no written record to this effect.
Mr Sandercock acknowledged that he had an abscess in his right ear and his ear drum was perforated in 1952. He saw an ear, nose and throat specialist at the time, but it is noted in an attachment to a medical report for the RAAF that he had had ‘No trouble since’.
Mr Sandercock was a high school teacher between 1962 and 1997 and also a notable pianist. In the report dated 26 January 2012 by Professor TC McManus, he calculated that Mr Sandercock’s ‘Present hearing impairment in accordance with NAL [Australian National Acoustic Laboratory] report 118, 1988 binaural hearing loss 24.3%’. Mr Sandercock concurs with this percentage figure.
Professor Black, clinical professor, University of Queensland, supplied information on 22 November 1996 in response to questions from Comcare and the Department of Defence concerning hearing loss of service personnel:
… Essentially, noise trauma is regarded as occurring only at the time of exposure to severe noise. The severe noise would be of the severity of greater than eighty-five decibels and maintained at these levels for more than three to three and a half minutes. 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.
… after approximately the age of fifty many individuals suffer a gradual decline in hearing. This is well recognised and the allowances made for calculation of hearing loss are set out in the National Acoustic Laboratory documents of 1988.
Legislation
As the hearing loss is claimed to have first occurred in 1955, as aggravated in the late 1950s and possibly also in the 1960s, the relevant legislation is found in a combination of the Commonwealth Employees’ Compensation Act 1930 (Cth) (1930 Act) and the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
Section 14(1) of the 1988 Act provides as follows:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Relevant terms are defined in ss 5A and 5B of the 1988 Act.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment; ...
disease
means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
The date on which an employee is taken to have sustained a disease, or an aggravation of a disease, is found in section 7(4) of the 1988 Act.
The commencing day of the 1988 Act was 1 December 1988. Part X of the Act provides transitional provision. Part X includes section 124. Section 124(1) applies in relation to an injury, loss, or damage suffered by an employee whether before or after the commencing day. Section 124(1A) provides, subject to Part X, a person is entitled to compensation under the 1988 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 1930 Act’.
Section 124(2) provides that a person is not entitled to compensation under the 1988 Act if compensation was not payable under the 1930 Act. In particular, section 124(10) provides:
… (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.
Section 16 of the 1930 Act states:
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: …
Provided always that –
(i) the want of … the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, … or that the want … 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.
Issues
The issues are:
·Whether section 16 of the 1930 Act, in combination with section 124 of the 1988 Act preclude Mr Sandercock’s claim for compensation.
·Whether Mr Sandercock’s hearing loss arose out of, or was contributed to by his military duties.
Consideration
There is no dispute that Mr Sandercock suffers from binaural hearing loss. Both parties accept that fact, and on the evidence provided, the Tribunal agrees.
The initial decision was made under the SRC Act. The Commission contends that the decision should have been considered under a combination of the 1930 Act and the 1988 Act. The Tribunal accepts that contention.
In support of the finding of hearing loss the Tribunal notes the reports of:
· Ms Bev Eintracht, audiologist, dated 28 March 2011 that noted ‘Mr Sandercock reported that he has experienced hearing loss for most of his life’. She recorded ‘bilateral mild to severe sloping sensorineural hearing loss’. Her report of 14 November 2011 diagnosed ‘mild to profound steeply sloping high frequency sensorineural hearing loss bilaterally; very mild tinnitus; and that he had excellent speech discrimination bilaterally’;
· Dr Haydn Dyer, Mr Sandercock’s doctor, dated 6 April 2011, which records ‘severe sensorial hearing loss’;
· Professor TC McManus, consultant ear, nose and throat surgeon, dated 26 January 2012, with a diagnosis of ‘bilateral high tone sensorineural hearing impairment, but nil tinnitus’ said to be wholly due to presbyacusis; and
· Dr Geoffrey Hee, otolaryngologist, dated 9 August 2011 and 27 November 2012 that Mr Sandercock has ‘moderate to severe high frequency sensorineural hearing loss bilaterally’, attributed to ‘a combination of noise trauma and presbyacusis’.
Initially, Mr Sandercock claimed that his hearing loss was principally due to the damage to his ears which he said he sustained while in the Army cadets in 1955. As he said in a letter dated 3 February 2012 to Professor McManus ‘I am absolutely convinced that the date of injury was May 1955’. That claim was supported by Dr Haydn Dyer in a letter dated 6 April 2011. Dr Dyer was in the same school cadet group as Mr Sandercock and said he and two others suffered hearing problems due to firearms training ‘in the same way’.
Liability for injury in 1955
The first question is whether Mr Sandercock’s claimed injury in 1955 is covered by the 1930 Act. Section 9(1) of that Act provides that it applies to injuries ‘arising out of and in the course of … employment … to an employee of the Commonwealth’. Section 4(1) of the Act defines ‘employee’ as relevant to include ‘(b) any member of the Naval, Military or Air Forces of the Commonwealth’.
The Defence Act 1903 (Cth) as consolidated in 1973 defines ‘The Military Forces of the Commonwealth’ as the ‘Permanent Military Forces and the Citizen Military Forces’.[1] Both Forces are defined and do not include the Australian Cadet Corp.[2]The Australian Cadet Corps is described but is not defined in the Act.[3] A ‘member’ of the Defence Forces of the Commonwealth is also defined as ‘any officer, sailor, soldier and airman’[4] and does not include members of the Australian Cadet Corps. For example, an ‘airman’ ‘means a member of the Air Force other than an officer’.[5]
[1] Defence Act 1903 (Cth) s 31.
[2] Defence Act 1903 (Cth) ss 32, 32A.
[3] Defence Act 1903 (Cth) s 62.
[4] Defence Act 1903 (Cth) s 4(1).
[5] Defence Act 1903 (Cth) s 4(1).
The relevant definitions have changed little in the current Defence Act 1903 (Cth), except that the definition of the Defence Force refers to the three arms, as the Australian Navy, the Australian Army and the Australian Air Force’.[6] Each arm of the Defence Force is defined to include the Regular arm and the Reserve.[7] The definition of ‘member’ remains the same as in the previous Act.[8] Australian Army Cadets are also defined and the definition specifically states ‘A cadet in the Australian Army Cadets is not a member of the Army’.[9]
[6] Defence Act 1903 (Cth) s 30.
[7] Eg Defence Act 1903 (Cth) s 31.
[8] Defence Act 1903 (Cth) s 4(1).
[9] Defence Act 1903 (Cth) s 62(4).
The Tribunal concludes, accordingly, that while Mr Sandercock was a member of the Army Cadets in 1955, he was not an ‘employee’ for the purposes of the 1930 Act, and he was therefore not entitled to compensation under that Act. In turn that means he is not entitled to compensation under the 1988 Act for any hearing loss sustained in 1955.[10] The Tribunal notes that cadets were not formally recognised as employees until the introduction of the SRC Act.[11]
[10] 1988 Act s 124(2).
[11] 1988 Act s 6A.
That does not finalise the matter since at the hearing, Mr Sandercock maintained that his hearing loss and tinnitus triggered in 1955 were aggravated during National Service, and during his Reserve service in the RAAF. He therefore claims his injury or aggravation of an injury occurred when he was a member of the ‘Naval, Military or Air Forces of the Commonwealth’, that is, during National Service and while in the RAAF Reserve and accordingly he was an ‘employee’ for the purposes of the 1930 Act. The Tribunal has accepted his submission. This enables him to claim compensation under the SRC Act provided he can establish he would have been entitled to compensation under the 1930 Act.
Characterisation of hearing loss as ‘injury’ or ‘disease’
Mr Sandercock’s claim is that his hearing loss was caused by acoustic trauma, that is, trauma to the ‘sensitive hair cells of the inner ear as well as the hearing nerve’. According to a report obtained from the National Institute on Deafness and Other Communication Disorders,[12] noise induced hearing loss (NIHL) can take two forms:
… loud impulse noise, such as an explosion, or loud continuous noise. … 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. …The symptoms of NIHL increase gradually over a period of continuous exposure.
Temporary threshold shift, as its name suggests, is a reversible hearing loss, although over time, if there is exposure to further prolonged loud noise or explosions, it may become permanent. Dr Dyer’s evidence was that the exposure to firearms during cadet training produced ‘4-6 days tinnitus & deafness’. Mr Sandercock said the hearing loss was ‘temporary’ and only lasted ‘a couple of days’ at the time.
[12] Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242 at [38].
There is no consistent view in the cases as to whether hearing loss is an ‘injury’[13] or a ‘disease’[14] for the purposes of the 1988 Act.[15] However, the distinction between an ‘injury’ in its primary sense and a ‘disease’ was described by the High Court as the difference between ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ as compared with the ‘underlying pathology’ that constitutes a ‘disease’.[16]
[13] Re Nolan and Military Rehabilitation and Compensation Commission [2012] AATA 454;
[14] Banks v Comcare [1996] FCA 382 and see the helpful discussion in Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242
[15] 1988 Act ss 4(1), 5A, 5B. 6.
[16] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at [39] per Gleeson CJ and Kirby J.
Applying that distinction, acoustic trauma, if it results in sudden damage to sensitive hair cells of the inner ear as well as the hearing nerve would amount to an ‘injury’;[17] while presbyacusis, being a slowly degenerative process associated with ageing, would amount to a ‘disease’. Mr Sandercock’s mild tinnitus could be either an injury or a disease depending on whether it was provoked by a loud noise, or by a disease of the ear.[18] The Tribunal so finds.
Date of onset of injury/disease (section 7(4))
[17] Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242.
[18] Dr Harvey Marcovitch (ed), Black’s Medical Dictionary (42nd edn, 2010), 665.
The date of injury is either the date ‘the employee first sought medical treatment for the disease, or aggravation’ or the date ‘the disease or aggravation resulted in … impairment of the employee’ (1988 Act section 7(4)(a)(b)).
Apart from his evidence as to temporary hearing loss following his firearms training in the 1950s and again in the 1960s, Mr Sandercock provided little evidence that he was aware of hearing loss symptoms until the 1960s. He did assert in written evidence that he sought medical treatment for his hearing conditions in ‘about 1963’ when he said he saw a Dr Cuthbert, a prominent ear, nose and throat specialist in Perth, and a Dr Packer, another ear, nose and throat specialist, in about 1973. However, there are no records of these visits and one of the two specialists has died. Mr Sandercock said at the hearing that he thought his visit to Dr Cuthbert would have been prompted by the oral comment about his high frequency hearing loss when he applied to join the RAN Reserve, but he also mentioned his abscess. However, in his written evidence he said ‘Visits to Dr Packer and Dr Cuthbert never involved any discussion of high frequency loss, nor any suggestion that I have appropriate tests’. His later evidence was that he would have discussed hearing problems generally, including ‘in the classroom’.
In the initial application and documentation provided by Mr Sandercock he claimed that his visit to Dr Cuthbert was in 1962. However, on viewing his service documents, Mr Sandercock revised his opinion and decided that as he unsuccessfully applied to join the RAN Reserve in 1965, assuming his Navy Reserve application was in 1965, his visit to Dr Cuthbert could not have been until after then. His evidence that no testing for high frequency hearing loss took place on either visit casts doubt on this revised recollection. So that first visit may have been in 1962. In any event, the absence of records and of relevant testing by either expert means it is not possible for the Tribunal to be satisfied that the date of injury could have been in 1963/5 or in 1973.
Mr Sandercock does not report any other medical testing of his hearing prior to 2011. On 28 March 2011 he consulted Ms Eintracht and an audiogram was conducted. Dr Haydn Dyer, Mr Sandercock’s doctor, in a report dated 6 April 2011 following the audiogram, recorded severe sensorineural hearing loss. Dr Hee also produced a report for Dr Dyer on Mr Sandercock’s hearing problems on 9 August 2011.
Professor McManus in his report dated 26 January 2012 says ‘Deafness first noted some time between 1952 and 1966’. Professor McManus’s report noted that Mr Sandercock was unable to provide a specific date of the injury but presumed it was in the mid-1950s.
In this unsatisfactory state of the evidence, the Tribunal finds that the date of injury is in March 2011 when Mr Sandercock first obtained an audiogram from Ms Eintracht. There is insufficient evidence about any level of permanent hearing loss in the material concerning firearms training in the 1950s and 1960s to satisfy it that Mr Sandercock was then suffering from other than short term hearing loss symptoms. Nor is the suggested comment of the Navy officer during Mr Sandercock’s application to join the Navy Reserve in 1965 sufficiently probative for it to be satisfied that high frequency hearing loss was then established. This finding relates to any initiation of hearing loss or any aggravation of any injury or disease which eventuated.
However, in deference to the substance of the claim, the Tribunal has considered the question of the application of the 1930 Act, including the impact of s 16. In any event, the only evidence as to a service-related cause of Mr Sandercock’s hearing loss provided to the Tribunal related to events which occurred in the 1950s and 1960s when the 1930 Act remained in force. This will require an analysis of the application of s16 of that Act.
Whether section 16 of the 1930 Act precludes Mr Sandercock’s claim for compensation
Mr Sandercock’s claim for hearing loss is dated 15 June 2011. If his hearing loss was aggravated by his firearms training while on service in the late 1950s and the first half of the 1960s, his claim relates to events which occurred between 45 and 53 years earlier. Accordingly his claim is outside the six months’ time limit in section 16(1) of the 1930 Act, nor was it made ‘as soon as practicable’ thereafter. As a consequence, at first sight his claim is not compensable by virtue of s 16 of the 1930 Act.[19]
[19] 1988 Act s 124(10).
However, the Tribunal must consider the provisos which provide an exception to the time limits in section 16(1). That is, can he establish that the ‘Commonwealth is not prejudiced by the want’ of notice, or was his failure to notify earlier ‘occasioned by mistake, absence from Australia, or other reasonable cause’. (section 16(1)(i))
Prejudice
The Commission contends that it has been prejudiced by the delay in notification. Investigations to locate contemporaneous documents have indicated that defence records would have been destroyed in the 1960s at the latest. The Defence Single Access Mechanism provided evidence by email dated 21 February 2013 that, according to Navy Medical and Hospital Instructions (1968), ‘all records of examinations were only required to be retained for five years’. That means any results of testing Mr Sandercock’s hearing while on service are not available. This is an example of how the absence of contemporaneous evidence significantly prejudices the Commission.[20]
[20] Blunden v Commonwealth [2006] ACTSC 58 at [65]; Re Muras and Department of Defence [1998] AATA 645.
Mr Sandercock has attempted to minimise that disadvantage. He has provided Australian National Acoustic Laboratory (ANL) figures on the rate of age-related hearing loss generally in the population, he has sought to obtain material from medical specialists, he has signed a statutory declaration about his recollections about events, obtained a witness statement from a fellow cadet in 1955 about the impact of firearms training, and evidence from Defence concerning standard hearing level requirements for members of the forces, and compiled copious notes on relevant cases.
Despite his commendable efforts, as the earlier discussion, particularly on the date of injury, indicates the extensive delay since Mr Sandercock claims he was injured or his injury was aggravated has had an adverse impact on the availability of evidence to corroborate his recollections. Not only have the Defence records been destroyed, and specialists records are not available, but the change of the claim, late in its progress, from an injury in 1955, to a later aggravation of his 1955 injury during National Service in the late 1950s or RAAF Reserve service, in the early 1960s, exposed further gaps in the evidence, particularly as to the length of any firearms training and the time of exposure to loud noise during that training..
Illustrations of these difficulties are provided by Mr Sandercock’s recollections of his visits to Dr Cuthbert and Dr Packer. He is uncertain about the dates, the reasons for, and the assessments conducted at those visits. The absence of any records and the demise of one of the specialists has compounded the problems. The Tribunal notes that it is precisely because of these failures of memory and the inadequacies of relevant evidence that prima facie notice is required within a short period after the injury. It is also the reason Professor McManus and Dr Hee were unable to be more prescriptive in their opinions about what caused Mr Sandercock’s hearing loss. Accordingly, the Tribunal agrees that the delay has prejudiced the Commission.[21] That is sufficient to dispose of the matter.
[21] Blunden v Commonwealth [2006] ACTSC 58 at 64
However, in deference to the effort Mr Sandercock put into making his claim, the Tribunal has also considered the remaining provisos in section 16, that is, whether there is evidence that the delay of at least 45 or so years in lodging his claim is due to mistake, absence from Australia or other reasonable cause.[22]
Absence from Australia
[22] Comcare Australia v McGuire (1996) 68 FCR 329 at 348.
There is no evidence that Mr Sandercock was outside Australia in the six months following the events in May 1955, his periods of National Service in 1958 and 1959, or his RAAF Reserve service between 1962 and 1965. So it was not his absence from Australia which caused the delay in lodgement of the application.
Mistake
Mr Sandercock provided evidence that he was at secondary school in 1955 and did not have the maturity or sufficient worldly knowledge to report the problem. As for his subsequent periods of firearms exposure in the late 1950s and early 1960s, he said it was ‘only recently’ that he realised ‘there is a mechanism for this [seeking compensation for service-related hearing loss]’.
Ignorance of the law is not a mistake.[23] For a mistake to be an excuse for Mr Sandercock it must be a mistake as to the true position in law which led him not to put in an earlier application. In other words, it would be a mistake if Mr Sandercock had been aware of the possibility of work-related compensation, but was under a misapprehension about whether he had an entitlement. His evidence was that in 1955, as a teenager, he lacked the experience and maturity to be aware of the possibility of compensation for work-related injuries. That is ignorance of the law, but may be excusable.
[23] Commonwealth v Connors (1989) 86 ALR 247 at 251-252; Black v City of South Melbourne [1963] VR 34 at 37.
However, the relevant claim relates to an aggravation of his injury in the late 1950s and early 1960s. Mr Sandercock did not provide any evidence that he was aware of the existence of a compensation scheme at those times. He started teaching in 1962 and as a teacher the Tribunal infers that he would have been told about or become aware that a scheme for compensation for work-related injuries was available. As he said the injury was ‘not reported between 1955 and 2011 as I have only recently realised that there is a mechanism for this’. That is ignorance of the law and is not a mistake for the purposes of section 16.
Mr Sandercock also claimed mistake of fact, namely, that until at least the audiology findings in 2011, he did not appreciate that he either had high frequency hearing loss or its significance. As the cases establish that unless there is a causal link between that mistake of fact and the failure to provide notice, the proviso does not apply, that issue is considered under whether Mr Sandercock had reasonable cause for the delay.
Reasonable cause
A reasonable cause is an objective test assessed by considering ‘what was a reasonable course of conduct for [a claimant] taking into account the subjective circumstances of [the claimant] in each of those cases’.[24] Although the interpretation of this proviso may be more ‘liberal’ than for mistake, nonetheless, it must amount to ‘an act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable’.[25]
[24] Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382 at 393.
[25] Black v City of South Melbourne [1963] VR 34 at 38.
Mr Sandercock claims that his failure to give notice was reasonable since he believed until he had the audiogram in 2011 that any hearing loss was due to his abscess in 1952. As he said:
Symptoms over the years which included an occasional ringing when involved in the teaching of choirs or playing the piano in the higher notes or difficulty hearing students in a classroom situation, particularly when cooling fans were used were believed by myself to be an indication that these hearing difficulties were somehow related to an ear abscess in 1952. Hence visits to Dr Einihovici in 1952-1954 and Dr Cuthbert in 1960s and Dr Packer in 1970s.
He said he was not aware he had any high level hearing loss until either 1965, if the ‘off-the-cuff’ remark by the Navy audiologist that he had high frequency hearing loss is accepted, or 2011 when he had an audiogram. As he said
I did not receive a copy of the audiogram in 1962 (now 1965) [from the Naval unsuccessful application] nor any letter on the subject. I am of the opinion that I did not understand at that stage what was the meaning of ‘high frequency hearing loss’.
In other words, he was not aware of the possibility that his hearing loss was due to acoustic trauma, nor of its significance until 2011. In his view the condition was ‘latent’ until discussions following the audiogram in 2011 triggered recollections of his hearing loss following firearms training.
Although this may be a mistake as to the facts, there is insufficient evidence that this resulted in his failure to provide notice in the period between the late 1950s or early 1960s until 2011. Ms Eintracht recorded Mr Sandercock as saying that he had had hearing problems all his life, and for which he says he sought advice in 1965 and 1973. So he could have obtained this evidence earlier.
If the Tribunal had evidence which was probative of the reasons Mr Sandercock attended hearing specialist as he claimed in the 1960s and 1970s, the outcome may have been different. Had he then had audiograms during those visits, his ignorance would have been dispelled as to the type of hearing loss from which he suffered and this may then have triggered his memory earlier. However, his omission to seek such evidence at that time, suggests the specialists he claimed to have consulted may have considered his account of any hearing problems indicated minimum loss of hearing at that time. That is hypothetical given the absence of records at the time. It does mean, however, that his failure to pursue the matter assiduously at that time was not reasonable.
Whether Mr Sandercock’s hearing loss arose out of, or was contributed to by his military duties
Mr Sandercock’s evidence was that during his cadet training he may have had firearms training on four occasions but he could not remember how often or for how long he would have fired a 303 rifle. His national service training was for three months in each of 1958 and 1959, and again he could not recall how many hours of firearms training were undertaken at that time, but he said probably no more than 6 days in total. He also said he could not recall how long firearms’ training was on each of those days, but he thought for only half to one hour. There was also no indication of whether firing a machine gun round exceed three to three and a half minutes. His recollection was also vague as to the time he spent in firearms training while in the RAAF Reserve. So although there may have been some exacerbation of any earlier damage from 1955 in this later training, there is insufficient indication that the acoustic trauma was sufficiently prolonged to produce any long-term hearing loss.
Professor Black’s opinion in the letter dated 22 November 1996 was that ‘noise trauma is regarded as occurring only at the time of exposure to severe noise’ and ‘severe noise must exceed eight-five decibels and be maintained for more than three and a half minutes’. Firing a .303 rifle, even if it exceeds 85 decibels, a fact which had not been established, does not create noise which is sustained for more than three to three and a half minutes. No evidence was provided to establish whether firing machine guns during training would have lasted longer than that time.
In addition Professor Black said that ‘once an 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’. The evidence as to the length of any firearms training during the limited weeks of training while on National Service could not be considered to be ‘prolonged’. Nor did Mr Sandercock establish that his further firearms exposure during his RAAF Reserve service was prolonged, or that it was unprotected. In these circumstances, the Tribunal is not able to be satisfied that the volume or prolongation of exposure to noise from firearms was sufficient to lead to more permanent hearing loss damage.
Although Mr Sandercock recalls an ‘off-the-cuff’ remark about high frequency hearing loss following his application to join the Navy Reserve in 1965[26] there are no military records to corroborate this recollection. In addition, Mr Sandercock was mistaken about the year in which this occurred, which casts doubt, in the absence of corroborating evidence, on whether the remark was made. At the same time, the service records concerning hearing tests showed he had bilateral hearing competence up to 20ft.
[26] Mr Sandercock’s statutory declaration initially said this was in 1962. He later changed his testimony on the date to 1965.
Mr Sandercock maintains these were ‘basic hearing tests’ and did not assess high frequency hearing loss, but there is no corroborating evidence to this effect. Nonetheless, the general absence of evidence as to testing for high frequency hearing loss during his defence service or shortly thereafter, together with the length of time before any assessment of his hearing loss was made, and the possible effects on his hearing of Mr Sandercock’s age, is another feature of the delayed lodgement of his application which has prejudiced the collection of evidence. It also prevented the ear, nose and throat specialists who provided evidence being able to ascertain what proportion of his hearing loss is due, if at all, to his defence service.
Mr Sandercock also says he saw Dr Cuthbert, an ear, nose and throat specialist in about 1963, and a Dr Packer in about 1973,[27] concerning his hearing problems. There are no records of these consultations and one of the two has died. Mr Sandercock’s evidence also varies as to the reasons for these visits. At one point, he said he saw Dr Cutherbert ‘probably because of the Navy comment’; at other points he said no discussion of high frequency hearing loss occurred at those visits which were about his abscess as a possible cause of any hearing problems he was having.
The Tribunal notes that the Navy comment according to Mr Sandercock’s later evidence was made in 1965. This post-dated his probable date of enquiry of Dr Cuthbert. His recollection of when he saw Dr Cuthbert may have been faulty, but since he also said in other evidence that there was no discussion of high frequency hearing loss with Dr Cuthbert, and he was not tested for that possibility, the earlier date may have in fact been correct. He believed his discussion with Dr Packer concerned his abscess. The Tribunal considers it unlikely, if Mr Sandercock had mentioned the remark of the Navy officer about high frequency hearing loss to Dr Cuthbert, that he, as a reputable ear, nose and throat specialist, would not have conducted tests for that form of hearing loss. Accordingly it discounts the possibility that the disclosure was made.
Dr Dyer, in his 6 April 2011 report, said he was in the same cadet group ‘and suffered in the same way, as did at least two others from Eastern Goldfields High School’. However, whether he or the two others now have similar hearing loss problems to Mr Sandercock was not mentioned, casting doubt on the value of this evidence.
Dr Hee in letters dated 9 August 2011, 27 November 2012, and 14 February 2013, said that Mr Sandercock’s moderate to severe high frequency sensorineural hearing loss was due to a combination of noise trauma and presbyacusis. In his view Mr Sandercock ‘may have had some pre-existing hearing loss from noise exposure … whilst in the school cadets. The further exposure to firearms during his service in the army probably aggravated or accelerated this hearing loss’. He did not attempt to decide what proportion was due to trauma, and what proportion to ageing or genetic predisposition. His evidence is equivocal as to whether firearms on training could have been causal. Professor McManus’s opinion was that the hearing loss was solely due to presbyacusis. On balance the experts’ opinion as to whether there may have been a causal link to Mr Sandercock’s hearing loss problems is insufficient to enable the Tribunal to be satisfied on the balance of probabilities that it was his firearms training, rather than an abscess, or age-related hearing loss, that was the cause of his hearing loss.[28]
[28] Commonwealth Employees’ Compensation Act 1930 (Cth) s 9.
That finding is supported by evidence in defence records that Mr Sandercock’s hearing tests in 1957 and 1964 were normal. Mr Sandercock’s ‘hearing, ears, nose, throat and sinuses were normal’ and he was passed as Fit Class One in 1964, in his Re-Engagement Medical to the RAAF Reserve. Records also indicate he had an abscess in his right ear in 1952/54, a non-service-related injury which may have played a small part in his hearing loss.
The Commission contended that the contemporaneous evidence did not establish that Mr Sandercock’s hearing loss arose out of, or in the course of his military service. The absence of such evidence means that the Commission has no other evidence on which to rely other than that of Mr Sandercock. The Tribunal accepts that the evidence of a causal link is insufficient for it to be satisfied that the events which occurred in 1955, or in the late 1950s, or the first half of the 1960s resulted in Mr Sandercock’s sustained hearing loss, given the absence of contemporaneous records.[29]
[29] Re Campbell and Military Rehabilitation and Compensation Commission [2009] AATA 273, 23 April 2009, per Member Kenny at [36].
Conclusion
In summary, the Tribunal finds that the Commission has been prejudiced by the lengthy delay in seeking compensation. That delay has led to the paucity of evidence which has led meant the Tribunal was unable to establish on the balance of probabilities that the events and circumstances on service which it is claimed led to Mr Sandercock’s initial hearing problems occurred. In addition, the Tribunal is not able to be satisfied on the balance of probabilities that it was service, rather than other causes such as his age, which led to Mr Sandercock’s hearing loss. So despite Mr Sandercock’s valiant efforts to provide sufficient alternative evidence, his efforts have been defeated by the length of time and absence of corroborative evidence to support his claim. Accordingly the decision under review is affirmed.
I certify that the preceding 65 (sixty five) paragraphs are a true copy of the reasons for the decision herein of Professor Robin Creyke, Senior Member. ...(Sgd) T Freeman..............
Associate
Dated 22 July 2013
Date(s) of hearing 18 June 2013 Applicant In person Representative for the Respondent Ben Dube Solicitors for the Respondent Sparke Helmore
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