Re Tralongo and Military Rehabilitation and Compensation Commission
[2004] AATA 1242
•25 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1242
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/622
GENERAL ADMINISTRATIVE DIVISION ) Re NICOLA TRALONGO Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date25 November 2004
PlaceAdelaide
Decision The Tribunal:
(a) sets aside the decision under review, and in place of that decision, dismisses the respondent’s preliminary objection that the applicant is not entitled to claim compensation for his hearing loss by virtue of the provisions of s 124(10) of the Safety, Rehabilitation and Compensation Act 1988;
(b) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(c) orders that in the absence of any such application, the respondent pay the costs of the proceedings.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION - hearing loss - Army service - no notice of injury - claim for compensation not made within prescribed period - preliminary objection to admission of claim - determination of applicable legislation - hearing loss - injury or disease - mistake as to symptoms of hearing loss - other reasonable cause - applicant unaware of extent of hearing loss - retrospective effect of amendment to s 16 of Commonwealth Employees’ Compensation Act 1930 - decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 s 124
Commonwealth Employees’ Compensation Act 1930 s 16
Commonwealth Employees’ Compensation Act 1959 s 5(1) and, 5(2)
Scott-Holland v Commonwealth of Australia (1983) 69 FLR 139
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Banks v Comcare, Federal Court, 22 May 1996, 382/1996
Australian Postal Corporation v Burch (1998) 26 AAR 312
Australian Postal Corporation v Burch (1998) 85 FCR 264
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Comcare Australia v McGuire (1996) 68 FCR 329
Comcare v Rowe (2002) 35 AAR 410
Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665
Commonwealth of Australia v Connors (1989) 86 ALR 247
Telstra Corporation v Roycroft (1997) 47 ALD 671
Djukic v Adelaide Stevedoring Co Ltd (1960) SASR 253
Kellogg v Austral Steel Limited [1966] SASR 34
Murray v Baxter (1914) 18 CLR 622
Black v City of South Melbourne (1963) VR 34
Secretary Department of Defence v Gorton (2000) 98 FCR 497
REASONS FOR DECISION
25 November 2004 Deputy President D G Jarvis 1. On 23 May 2002, Nicola Tralongo lodged a claim for compensation for severe loss of hearing, which he attributed to target firearms shooting during his National Service training and subsequently with the Citizens’ Military Forces (“CMF”).
2. Comcare denied liability for Mr Tralongo’s claim on the ground that he failed to lodge a claim for compensation within 6 months of the date of the injury as required by s 16 of the Commonwealth Employees’ Compensation Act 1930 (the “1930 Act”). A delegate of Comcare decided to disallow his claim on this ground. Mr Tralongo requested a reconsideration of this decision, and it was subsequently affirmed. Mr Tralongo has applied to this Tribunal for review of the decision on reconsideration.
3. Comcare requested a preliminary hearing to determine whether the claim was barred by s 16 of the 1930 Act or ss 53 and 54 of the Compensation (Commonwealth Government Employees’) Act 1971 (the “1971 Act”), whichever of those Acts applies, on the grounds that Mr Tralongo did not give notice of an accident and did not claim compensation within the times required by those sections. Mr Tralongo opposed the Commission’s application, and requested that the above jurisdictional issue should be heard together with the substantive issues.
4. Following an interlocutory hearing, and taking into account the evidence which Mr Tralongo proposed to adduce, I decided that he should present all of the evidence that he relied upon in support of his claim, both on the preliminary issue and also on the substantive issue of his entitlement to compensation, and that I would then rule on the preliminary issue at that stage of the proceedings.
Issues Before the Tribunal
5. The issues arising from the preliminary points raised by Comcare may be summarised as follows:
(a)whether Mr Tralongo’s claim for compensation is to be determined by the 1930 Act or the 1971 Act;
(b)whether Mr Tralongo’s claim for compensation should not be admitted because he failed to give notice of an accident and failed to claim compensation within the time required by whichever Act was relevant.
6. I have reached the conclusion that Mr Tralongo’s claim is not barred because he comes within certain exceptions to s 16 of the 1930 Act, which imposes the relevant time limits for notice and making a claim for compensation. However, I make it clear that this decision relates to the preliminary issue referred to in paragraph 3 above. It is based on the medical evidence produced by Mr Tralongo insofar as that evidence is relevant to the preliminary issue; my findings are provisional and are made only in order to determine that issue. I will of course reconsider my findings following the hearing of this application, in the light of all of the evidence adduced by both parties. Further, if the evidence leads me to revise my provisional findings as to issues relevant to whether Mr Tralongo is entitled to claim compensation under the transitional provisions of the Safety, Rehabilitation and Compensation Act 1988 (the “1988 Act”), I will further consider that question following the hearing, and notwithstanding my rejection of the Commission’s preliminary objection to the admission of the claim.
Background
7. The following background facts were not in dispute. I record that Mr Tralongo gave evidence through an interpreter. Italian, and not English, is his first language, and he apparently has some difficulties understanding English.
8. Mr Tralongo was born in Sicily on 22 July 1934. He migrated to Australia with his family when he was 17, having completed his secondary schooling in Italy. He lived in Melbourne until he was called up for National Service in January 1957. After completing his initial training he was posted to Puckapunyal as a trainee cook.
9. After completing his National Service training, Mr Tralongo joined the CMF and was later promoted to corporal. Exhibit A1 (the T Documents) include a copy of his Record of Service and Individual Training - Progress Records (see pages 23-27). Mr Tralongo served with the Army from 8 January 1957 until his discharge on 30 June 1960.
10. After his discharge from the Army, Mr Tralongo worked in coffee shops, milk bars and similar businesses. In 1979 he decided to have a change in his work environment, and he became a medical orderly at the Royal Melbourne Hospital. According to a certificate of service issued by that hospital, Mr Tralongo worked as a nursing attendant from 9 July 1979 until 13 November 1982 (exhibit A5).
11. After leaving the hospital Mr Tralongo opened another coffee shop in Melbourne, which was a mixed business including a post office and general store. Later, in the mid 1980’s, he opened a fish and chip shop in Ballarat, and he retired in 1990 after he had had the shop for about 4 or 5 years. After selling his fish and chip shop, he bought a hobby farm. He and his wife later went to live in Mount Gambier in 1996.
Evidence as to Applicant’s Hearing Loss
12. Mr Tralongo gave evidence that in the course of his basic training, he received regular training in the use of firearms. This appears to be confirmed by his Individual Training - Progress Record, a copy of which appears in exhibit A1, at page 26. This record refers to training in the use of rifles as well as light machine guns. Mr Tralongo said that no ear protection was provided during the course of training. In a letter dated 22 August 2002 in which Mr Tralongo requested a review of the decision to reject his claim, he said he had training sessions with firearms for approximately 3 hours twice a week during his National Service training, and after that, there was a firearms drill once or twice monthly (exhibit A1, T8, page 19). He gave evidence that he experienced a loss of hearing for approximately 10 minutes after discharging firearms. He said that he worried about this just temporarily while the loss of hearing was occurring, but afterwards he did not pay too much attention to his hearing loss.
13. In the above letter of 22 August 2002 (exhibit A1, T8, page 19), Mr Tralongo also said that when he enlisted in the Army his hearing was checked, and was satisfactory. As to this, I note that exhibit A1 includes a record of a medical examination of Mr Tralongo on 4 October 1956 (exhibit A1, T6, page 16), but paragraph 15 of the record, which relates to the registrant’s ears, was not completed by the examining doctor. Nevertheless, the record does not contradict the assertion made by Mr Tralongo in the above letter, and this assertion is consistent with the first page of the record; this includes, amongst a number of other detailed and specific questions, a question asking whether the registrant had suffered from deafness or had discharge from either ear, and Mr Tralongo answered “No” to this question. I also note that in the above letter of 22 August 2002, Mr Tralongo says that even during his CMF service all the kitchen staff used to yell at him, and that he could not understand them clearly, but at the time he thought they were joking.
14. The medical evidence upon which Mr Tralongo primarily relies in support of his claim comprises medical reports from Mr Daniel Hains, an ear, nose and throat specialist. In a report dated 4 November 2003 sent to one Dr Peter Charlton of Mount Gambier (who had apparently referred Mr Tralongo to Mr Hains), Mr Hains says (according to the corrected form of this report)
“He has hearing difficulty and spent four years exposed to military noise including noise of a machine gun that would make him deaf after use. There is no history of ear disease. He wears bilateral hearing aids.
The ears were normal in appearance and I enclose a copy of his audiogram showing a significant sensory neural (sic) deafness. Exposure to military noise has probably contributed to this.” (exhibit A1, T1, page 4)
15. In a later report dated 2 June 2004 to Mr Tralongo’s wife (who is a law student, and represented him in the proceedings before me), Mr Hains says:
“… I enclose a copy of his audiogram dated October 30, 2003 showing a pattern of moderately severe hearing loss.
There is a history of exposure to machine gun noise without ear protection. Nicola told me that he would be hard of hearing after these sessions.
The pattern of the loss and history support a diagnosis of noise induced hearing loss.
I enclose in table form the hearing loss at each of the relevant frequencies according to the method of the NAL Report No 118 of January 1988. In particular, I have used appendix 3 and 5, the latter making an adjustment for the age of the patient. In my opinion his hearing loss due to the exposure to military noise is 42.5%.” (exhibit A2)
16. I have referred in paragraph 13 above to Mr Tralongo’s letter of 22 August 2002. In his evidence in the proceedings before me Mr Tralongo also referred to certain earlier events which were indicative of his hearing difficulties.
17. Mr Tralongo said that when he started working at the Royal Melbourne Hospital, he was given a simple hearing test using a tuning fork as part of undergoing a medical examination. After he had been working there for some time, one of the sisters noticed that he was having difficulty comprehending everything, and suggested that he should have a hearing test. He said that he was then given a hearing test involving the use of headphones, but he said that tests he had later were “proper” tests. As a result of the second hearing test conducted at the Royal Melbourne Hospital, he was transferred to the nightshift where the working environment was quieter. He endeavoured to obtain his records from the hospital, but these were not available. As far as he recalled, this second hearing test took place a year or two after he started at the hospital.
18. After Mr Tralongo and his wife moved to Ballarat, a further hearing test was arranged by Mr Tralongo’s GP, at the suggestion of his wife. This was because Mr Tralongo was having difficulties in understanding people who came into the shop. As a result he was given a hearing aid, but he did not wear it, because, he said, he did not believe that his hearing was impaired.
19. After he moved to Mount Gambier, Mr Tralongo consulted Dr Charlton concerning his hearing problem. Dr Charlton referred him to a specialist, who conducted an audiogram on 26 August 1997. As a result he obtained another hearing aid, but once again he did not use it.
20. Last year, in May 2003 as far as he remembers, Mr Tralongo’s house was burned down and the hearing aid was lost in the fire. The insurance company met the cost of replacing it.
21. Mr Tralongo said that when the sister at the Royal Melbourne Hospital suggested that he should have a hearing test, he did not think that his hearing was impaired, but merely that he was not understanding English properly when people spoke to him. However, he said that after he had had the second hearing test at the Royal Melbourne Hospital, he realised he had been suffering from a hearing loss in both ears for a number of years (and I note that this evidence is inconsistent with his stated reasons for not wearing the hearing aid he was given at Ballarat - see paragraph 18 above). He acknowledged in cross-examination that he was put on nightshift because of his hearing loss, but added that he also liked working at night. He said that he did not take his hearing loss too seriously at that time. He said that he associated his hearing loss with military service “to some extent” but did not fully realise that it was the result of his military service at that time.
22. When he was given a hearing aid later at Ballarat, he said that it was always in the back of his mind that there could be a connection between his hearing loss and his National Service, because this was the only time when he had been exposed to “bangs”. He also said that he had been embarrassed to wear a hearing aid, and he did not want to make a fuss.
23. Mr Tralongo said that he finally decided to claim compensation when he was told by Mr Hains that his loss of hearing was up to 40% and much more serious than he had thought, and when Mr Hains also told him that his hearing loss had been caused by the firing range exercises he had undertaken when in the Army. I note, however, that Mr Tralongo was apparently referred to Mr Hains at about the date of his first report, being the report dated 4 November 2003 to Dr Charlton (see exhibit A1, page 4), and Mr Tralongo had claimed compensation well before this, on 23 May 2002. Mr Tralongo also said in evidence that previous hearing aids which he had obtained had been paid for through social security entitlements. It appears therefore that Mr Tralongo was mistaken in this aspect of his evidence.
24. A personal data sheet which forms part of Mr Tralongo’s Record of Service shows Mr Tralongo’s employment history at the time when he commenced his National Service (see exhibit A1, PT10, page 27). This form showed that his then current employer was International Harvester at Dandenong, and that he had been employed there for 2 months as a panel beater. His two preceding jobs were described as a panel beater in the motor industry in each case, with a duration of 2 years and 7 months respectively. However, in cross-examination Mr Tralongo said that he had only worked in panel beating for about 3 months, but his job was at the end of the line where the final touches to repairs were completed, and the vehicles had been taken out of the working area. He said that after that he had worked in a coffee shop, milk bar and restaurant in Victoria Street, Melbourne before starting his National Service. He also said that in his recollection, he had never worked in a noisy environment or been confronted with loud noises except when he was doing his National Service. He said that he realised following the hearing test at Ballarat that he was suffering from a hearing loss, but he “resisted” the belief that he was hearing impaired, and left his hearing aid in the bag unused.
Transitional Provisions of Current Legislation
25. Section 14(1) of the 1988 Act provides as follows:
“14(1) 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.”
26. The words “injury” and “impairment” used in s 14(1) are relevantly defined in s 4(1) of the 1988 Act as follows:
“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; …”
“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
27. The word “disease” (which is referred to in the definition of “injury”) is defined in s 4(1) of the 1988 Act as follows:
“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.”
28. The word “ailment”, which is referred to in the definition of “disease” is defined as follows:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
29. The commencing day of the 1988 Act was 1 December 1988. Part X of this Act contains transitional provisions. Under s 124(1), the 1988 Act applies in relation to an injury, loss, or damage suffered by an employee whether before or after the commencing day. Section 124(1A) provides that, 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 (relevantly) the 1930 Act or the 1971 Act (s 124(1A)). Section 123A provides that a reference in Part X of the 1988 Act to an injury suffered before the commencing day is a reference to an injury within the meaning of (relevantly) whichever of the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.
30. Section 7(4) of the 1988 Act makes provision for the date when an employee is taken to have sustained a disease, or an aggravation of a disease, and is in the following terms.
“7(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
31. Section 124(2) provides, in effect, that a person is not entitled to compensation under the 1988 Act if compensation was not payable to that person pursuant to (relevantly) the 1930 Act or the 1971 Act. This provision is reinforced by s 124(10), which provides in effect that:
· where a claim for compensation by a person under the 1930 Act, in respect of injury suffered after the commencement of that Act but before the commencement of the 1971 Act, was not admissible because of s 16 of the 1930 Act; or
· where a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986 (being the commencement date of amendments to the 1971 Act) was not admissible because of s 54 of the 1971 Act, as that section was in force before 1 July 1986,
the person is not entitled to compensation under the 1988 Act in respect of that injury.
Consideration
32. Mr Tralongo asserts that his hearing loss occurred as a result of his Army service, and this occurred during the period after the commencement of the 1930 Act but before the commencement of the 1971 Act. It is therefore necessary first to consider whether Mr Tralongo’s claim for compensation is not admissible by virtue of s 16 of the 1930 Act (see s 124(10) of the 1988 Act).
Whether Mr Tralongo’s claim is admissible under the 1930 Act
33. Section 16 of the 1930 Act provides as follows:
“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.
16.(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.
…
16.(4) In the application of this section … in relation to a claim in respect of an employee who is suffering from a disease …
(a)notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1) of this section if notice of the contracting of the disease was served on the Commissioner –
…
(ii)… as soon as practicable after the employee first became aware that he was suffering from the disease …
(b)a claim for compensation shall be deemed to have been made within the period required by sub-section (1) of this section if the claim was made –
…
(ii)… within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death.
(c)a notice shall, for the purposes of sub-section (2) of this section be deemed to contain the date at which the accident happened if it specifies the date at which, or period during which, the employee contracted the disease;
… .”
It has been held that the word “admit” in this context means not capable of being entertained (see Scott-Holland v Commonwealth of Australia (1983) 69 FLR 139, where Ellicott J considered the meaning of the word “admissible” in the corresponding section in the 1971 Act).
34. I take into account that the purpose of the requirements of s 16 of the 1930 Act was to protect the Commonwealth against the possible abuse of the Act which might occur if claimants did not give prompt notice of work related accidents, and did not promptly pursue any resulting entitlement to claim compensation (see the comments of this Tribunal in Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535 in relation to the requirements of s 53(1) of the 1988 Act, being the successor to s 16 of the 1930 Act).
Should Mr Tralongo’s hearing loss be characterised as an injury or disease?
35. Under s 16 of the 1930 Act, the period within which a notice of accident must be given, and a claim for compensation made, varies according to whether the employee claims compensation for an injury or a disease. The words “injury” and “disease” are defined in the 1930 Act as follows:
““injury” means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;
“disease” includes any physical or mental ailment, disorder defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;”
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. Ms Bean 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.
Application of s 16 to claim for an injury
41. It is common ground that Mr Tralongo did not serve notice of any accident on the Commissioner for Employees’ Compensation, and did not lodge any claim for compensation for his hearing loss until 17 May 2002. If his claim for compensation is regarded as a claim for an injury from an accident, he did not therefore give notice of the accident as required by s 16(1) of the 1930 Act, and did not give notice of the claim within six months from the occurrence of the accident as required by that sub-section.
42. However, under the proviso to s 16(1), the failure to give notice can be excused if I find that the Commonwealth has not been prejudiced by the failure to give notice, or if I find that the failure was occasioned by a mistake, absence from Australia or other reasonable cause.
43. The Commission tendered a statement by Paul Ontong, the person responsible for the management of compensation claims made by Defence personnel, and this was admitted as exhibit R1. Mr Ontong asserts in effect that the Commission is severely prejudiced by the failure to give notice, and that that prejudice arises in particular because:
(a)due to the lapse of time and unavailability of witnesses and documents, the Commission is unable to investigate the circumstances in which Mr Tralongo’s claimed hearing loss was allegedly sustained, and in particular is unable to investigate the nature and extent of the noise exposure during his service, being evidence that is critical to the issue of causation; the Commission is therefore effectively unable to obtain or present any meaningful factual evidence in relation to causation;
(b)the Commission has been deprived of the opportunity to obtain contemporaneous medical evidence regarding the cause(s) of Mr Tralongo’s hearing loss, and the extent of any impairment or incapacity flowing from it; and
(c)the Commission has been deprived of the opportunity to have Mr Tralongo medically examined at any time during the intervening 44-year period in order to investigate the status of his claimed condition and any contribution to it from other causes.
44. The above statement was not challenged by Mr Tralongo. Having regard to the matters referred to by Mr Ontong and to the length of time which has elapsed since Mr Tralongo’s Army service, it cannot be said that the Commission has not been prejudiced by the failure to give notice within the prescribed period so as to excuse that failure under the proviso to s 16(1).
45. The exception of absence from Australia in the proviso to s 16(1) is not applicable on the evidence before me.
46. 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).
47. Ms Bean for the Commission submitted on the basis of the letter of 22 August 2002 (in which Mr Tralongo said that the kitchen staff used to yell at him when he was still in the Army) that he had suffered a hearing loss at that time, but he was not then aware of this, or then aware that there was any basis on which that hearing loss could be attributed to his service with the Army. She contended that ignorance does not amount to mistake, in reliance on Commonwealth of Australia v Connors (1989) 86 ALR 247, where it was held that Mr Connors’ ignorance of his rights was insufficient as a ground to establish mistake pursuant to s 16 of the 1930 Act. Northrop and Ryan JJ said at page 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’.”
There are a number of other authorities to the same effect. Another authority often referred to is Telstra Corporation Limited v Roycroft (1997) 47 ALD 671, where North J set forth a number of propositions established by the authorities, and concluded at page 679:
“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.”
48. Other authorities indicate that there is a distinction between a complete lack of knowledge of a relevant law, and ignorance of a requirement of the law, and accept that the latter circumstance constitutes a mistake (see Djukic v Adelaide Stevedoring Co Ltd (1960) SASR 253 (Brazel J) and Kellogg v Austral Steel Limited [1966] SASR 34 (where Mitchell J analyses a number of earlier cases).
49. I find on the evidence before me to date, including the above letter of 22 August 2002, that Mr Tralongo had suffered a hearing loss before the cessation of his service with the Army. I further find on that evidence that Mr Tralongo was unaware that he had suffered a hearing loss, but this was because he wrongly assumed (according to this letter) that the reason why the kitchen staff were yelling at him was that they were joking. Based on his evidence before me of later experiences, he also had difficulty understanding English, and it is likely that this was another reason why the kitchen staff were yelling at him. Exhibit R2 says in part that the symptoms of noise-induced hearing loss increase gradually over a period of continuous exposure; that sounds may become distorted or muted, and it may be difficult for the person to understand speech; and that the individual may not be aware of the loss.
50. Ms Bean submitted on behalf of the Commission that there would of course have been times when others were speaking to him in his first language, Italian, and that because his hearing loss would not have been obscured by language barriers at those times, it is inherently unlikely that his difficulties in understanding English prevented him from becoming aware of his hearing loss, or its extent, for any significant period. However, as Ms Bean acknowledged, Mr Tralongo’s ability to understand communications in his first language, and its possible relevance to his awareness of his hearing loss, either generally or at particular times, were not put to him in cross-examination. There is accordingly no evidence as to these matters, and I do not accept Ms Bean’s submission. I find on the evidence before me that Mr Tralongo had symptoms of hearing loss, but misunderstood those symptoms, and did not associate them with hearing loss, or with his Army service.
51. Mr Tralongo further said that following his discharging firearms in the course of his training, he had a loss of hearing for about 10 minutes and he worried while this loss was occurring, but afterwards did not pay too much attention to that loss. Having regard to the above medical evidence, it seems likely that at some stage during his Army service his hearing did not recover from the effects of the noise of the firearms, and he mistakenly thought that his hearing had fully recovered after that short interval of 10 minutes. That situation is analogous to Willis (supra), where the Tribunal found that the applicant had not appreciated the possible extent of his injuries because nothing was manifested to him during the relevant six months to cause him to claim compensation, and so the exception of mistake applied. There was a similar outcome in McGuire (supra), where Carr J found that this Tribunal was justified in inferring from the evidence before it in that case that the applicant was mistaken regarding the potential seriousness of a left middle-ear infection which he developed in late 1951, and that even if he had been aware of his right to claim compensation under the 1930 Act, he would not have done so because of his apparently mistaken belief that it was not a serious condition.
52. Having regard to my above findings, I consider that in the present case, Mr Tralongo’s ignorance of his hearing loss arose from a mistake which was operative during the period in which notice should have been given, and that because of that mistake he did not give notice of any accident and did not make any claim for compensation.
53. In case I am wrong in my conclusion as to the existence of an ameliorating mistake, I will now also consider the final exception in the proviso, namely whether there is any other reasonable cause for the failure to give notice or to make the claim for compensation within the prescribed time. In Banks (supra), Kiefel J said at [14]:
“The expression ‘reasonable cause’ has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice of claim.”
54. It has also been held that ignorance does not amount to “other reasonable cause” (see, for example, Connors (supra)). I am bound by this and similar authorities, which seem to have emanated originally from the decision of the High Court in Murray v Baxter (1914) 18 CLR 622 (although the Court there considered the exception of mistake rather than reasonable cause). In Black v City of South Melbourne (1963) VR 34, the Full Court of the Supreme Court of Victoria (Herring CJ, Lowe and Dean JJ) reviewed a number of authorities, and observed (at page 38.4) that the inquiry as to whether there was “reasonable cause” for the failure to give notice appeared to be of “a much wider kind justifying a more liberal attitude”. They went on to say that the expression “reasonable cause” appeared to them to mean “some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable.”
55. In Willis (supra) the Tribunal, after reviewing a number of authorities including Black, said at [34]:
“An examination of the principles adopted by the Full Court of the Supreme Court of Victoria in Black’s case and in the later case of Melbourne and Metropolitan Tramways Board v Witton, supra, and by single judges of the Supreme Court in Quinlivan v Portland Harbour Trust, supra, and Cowie v State Electricity Commission of Victoria and Pryse v State Electricity Commission of Victoria, supra, and the consideration of the facts in each case against those principles shows that each has applied the test by looking at what was a reasonable course of conduct for the plaintiff in the circumstances in which he found himself. They have not judged the plaintiff by reference to some hypothetical man in hypothetical circumstances. It is an objective test taking into account the subjective circumstances of the plaintiff in each of those cases. Where previous decisions of this Tribunal have adopted a different interpretation, this Tribunal takes the view that they are not supported by these authorities. ”
56. I have already found in the present matter that Mr Tralongo was suffering from a hearing loss before he left the employment of the Army, but he was unaware of this at the time, and he thought that people were yelling at him as a joke or because of his difficulty in understanding the English language. He therefore had symptoms of hearing loss, but was unaware of the cause of these symptoms. I am satisfied that in Mr Tralongo’s circumstances, his omission to give notice of any accident and his omission to claim compensation within six months of any accident was reasonable. The third exception to the proviso to s 16(1), “other reasonable cause”, therefore also applies so as to excuse the want of notice and the failure to claim compensation within the prescribed period.
57. For the sake of completeness, I record that it was also argued on behalf of Mr Tralongo that he did not want to admit to himself that he had a hearing impairment, partly because of his European culture in which men do not wish to acknowledge any frailties and wish to be seen as strong, and partly because he was embarrassed at having to wear a hearing aid. However, I consider that these are not matters which would constitute a mistake or other reasonable cause within the meaning of the proviso to s 16(1). In any event, these considerations arose at a time well past the prescribed period for the giving of notice and the making of a claim, and are not therefore determinative of a want of notice or failure to make a claim within the prescribed times.
Application of s 16 to claim arising from a disease
58. In case I am wrong in my conclusion in paragraph 40 above, and Mr Tralongo’s hearing loss should be treated as a disease, I will now consider the matter on that alternative basis. Under the transitional provisions in s 124 of the 1988 Act, it is first necessary to decide when the relevant injury was suffered. Section 7(4) of the 1988 Act provides relevantly that an employee is taken to have sustained an injury, being a disease, on the day when the employee first sought medical treatment for the disease, or the disease first resulted in the incapacity for work or impairment of the employee, whichever happens first. On the medical evidence before me in the form of the Internet extract relating to noise-induced hearing loss (exhibit R2), as explained by Mr Hains in exhibit A10, there was an “impairment” within the meaning of that word in the 1988 Act, because there was a loss or malfunction of Mr Tralongo’s hearing, and this would have occurred prior to the cessation of his employment by the Army in 1960. This was during the currency of the 1930 Act.
59. Originally s 16 did not refer to claims for disease. However, the section was amended in 1959 to include provision for such claims (see s 5(1) of the Commonwealth Employees’ Compensation Act 1959, which came into force on 4 December 1959). This amendment added ss (4) to s 16. The new ss (4) was given retrospective operation by s 5(2) of the 1959 amending Act, subject to certain deeming provisions, to which I will refer later in these reasons.
60. The 1959 amendment to s 16 had the effect of extending the time limit in s 16 for the notification of diseases. Following the amendment, an employee who had suffered a disease was required to give notice of the disease “as soon as practicable” after becoming aware of the disease, and had to make a claim for compensation within six months after becoming aware that he or she was suffering from the disease.
61. Under the amended form of s 16, it is necessary to consider when Mr Tralongo became aware that he was suffering from a hearing loss, and whether he gave notice of the accident as soon as practicable after he became so aware as required by s 16(4)(a)(ii), and made a claim for compensation within six months after he became so aware as required by s 16(4)(b)(ii).
62. From the evidence before me in the present matter, I find that Mr Tralongo first became aware that he had a hearing loss after his hearing was tested for the second time during his service with the Royal Melbourne Hospital at the suggestion of one of the nursing sisters. There is no suggestion that any percentage assessment was made of his hearing loss at that time. However, he was informed then that he had a hearing loss, and he should have appreciated that this was of some significance to him, because it impacted on his then employment: it resulted in his being transferred to night duties. Further, as mentioned in paragraph 21 above, he associated his hearing loss with his military service at least to some extent, even though he did not apparently then fully realise that it was the result of his military service, and did not take his hearing loss too seriously at that time. I consider that he should have given notice, and claimed compensation, as soon as practicable after being informed, following the second hearing test at the hospital, that he had a hearing loss.
63. In any event, Mr Tralongo’s hearing difficulties continued when he went to Ballarat, to the point where he was given a hearing aid after consulting his general practitioner about his hearing difficulties. By then, he had appreciated the possibility that there was a connection between his hearing loss and his National Service, and he said that this was the only time he had been exposed to loud noises. I find that Mr Tralongo was given a hearing aid at Ballarat by no later than the year 1990. If I am wrong in my assessment of the relevance of the hearing test at the Royal Melbourne Hospital, I think that time was running against Mr Tralongo after he learned of his hearing loss at Ballarat, and he failed to give notice or claim compensation as soon as practicable after that.
64. The question then arises as to whether the ameliorating provisions in the proviso to s 16(1) apply to excuse a failure to give notice or to claim compensation within the required time. In McGuire (supra) it was argued that the relevant time limits had to be determined by reference to the criteria provided for in s 16(4) alone, and that the ameliorating provisions in the proviso to s 16(1) did not apply. However, Carr J rejected this argument, and said (at page 347):
“Another reason for not reading s 16(4) as applying in such a manner as to exclude the operation of the proviso to s 16(1), is that s 16(4) simply does “deeming work.” When the facts do not fall within its terms, it has no operation. It is not to be read as restricting other provisions of an exculpatory nature. This legislation is beneficial in its nature. Where two constructions of such a provision are possible, that which favours the employee should be preferred … Section 16(4) was obviously intended to ameliorate the circumstances of employees who were suffering from a disease, not to prevent them from relying on any exculpatory provisions which might otherwise apply.”
65. A contrary view was taken by Hill J in Secretary of Department of Defence v Gorton (2000) 98 FCR 497, where His Honour said (at [66]):
“With respect I do not understand what his Honour means in this passage. Perhaps it does not matter. On the view I have taken, s 16(4) is not intended to ameliorate anything, it was intended to make a time limit applicable to disease claims where it was not before.”
66. In her helpful written submissions which were provided after the conclusion of the hearing, Ms Bean acknowledged that the issues before Hill J in Gorton were significantly different from those under consideration by Carr J in McGuire, and that it appeared that Hill J had overlooked s 5(2) of the 1959 amending Act, which made the notice provisions relating to diseases retrospective. She further pointed out that Carr J was addressing the specific issue of whether the ameliorating provisions in s 16(1) were applicable in respect of the requirement in s 16(4) to give notice of a disease, whereas Hill J had not squarely addressed that issue in Gorton. Ms Bean accordingly conceded that it was appropriate for me to adopt the analysis of Carr J in McGuire.
67. In considering this conflict of authority it is appropriate first to consider s 5(2) of the 1959 amending Act which made provision for retrospectivity, subject to certain deeming provisions. This section provides as follows:
“(2.) The application of section sixteen of the Principal Act as amended by this Act extends in relation to a claim (including a claim in respect of death) arising out of a disease contracted before the commencement of this Act, except that-
(a)if notice of the accident was not or is not served within the time allowed by that section, the notice shall nevertheless be deemed to have been so served if it is served as soon as practicable after the commencement of this Act; and
(b)if a claim for compensation was not or is not made within the time allowed by that section, the claim shall nevertheless be deemed to have been so made if it is made within six months after the commencement of this Act.”
68. In his evidence before me, Mr Tralongo placed more emphasis on his training during National Service than in the firearms training whilst he was with the CMF, and I note that the firearms training during National Service was much more frequent than during his period with the CMF. Further, the effective date of the 1959 amendment was 4 December 1959, which was only 6 months before the end of Mr Tralongo’s period of service with the Army. On the assumption (for present purposes) that his hearing loss was a disease, it seems likely that it had developed, unknown to him, from a disease contracted before the commencement of the amending Act. Accordingly, under the exceptions to s 5(2) of the amending Act, Mr Tralongo could have given notice as soon as practicable after the commencement of the amending Act, and could have claimed compensation within 6 months after its commencement. He did neither. He cannot therefore rely on the deeming provisions of s 5(2)(a) or (b) of the 1959 amending Act.
69. I now revert to the conflict in the approaches in McGuire (supra) and Gorton (supra). Contrary to the submission of counsel for the Commission, Hill J in Gorton expressly referred to the provision for retrospectivity contained in s 5(2) of the 1959 amending Act; it was McGuire where there is no discussion of the relevance of s 5(2) of the 1959 amending Act (see paragraphs 63 and 65 of Gorton). As I understand the judgment of Hill J in Gorton, the extent of his Honour’s disagreement with the decision of Carr J in McGuire only relates to cases where the incapacity or death arises from a disease contracted before the commencement of the 1959 Act (see paragraph 65 of Gorton). However, Hill J also considered that the insertion of subs (4) of s 16 in 1959 had the consequence that the whole of s 16 is to be read as applying to the case of disease, and this was achieved by the application of s 4(2) of the 1930 Act (see paragraph 62 of Gorton). On this basis, as I understand it, Hill J does not disagree with the analysis of Carr J in McGuire, as quoted in paragraph 64 above.
70. If as Carr J said in McGuire the ameliorating provisions in s 16(1) apply to a claim for disease, then it follows from my above findings that Mr Tralongo should be excused from giving notice and making a claim within the required periods because of mistake or other reasonable cause. I further find that those ameliorating circumstances continued to apply for the periods within which Mr Tralongo was required to give notice and to claim compensation, as fixed by s 16(4) of the Act. In particular, it seems likely that Mr Tralongo was not aware of the extent of his hearing loss until he received Mr Hains’ report of 2 June 2004.
71. I should, however, add that in my view, the application of the ameliorating provisions in s 16(1) does not fit easily with the provisions of s 16(4). The position is complicated by s 4(2) of the 1930 Act, which at the time when the 1959 amending Act was passed provided as follows:
“(2) In the application of the provisions of this Act to and in relation to an employee to whom section ten of this Act applies, any reference in those provisions to personal injury by accident arising out of or in the course of an employee’s employment by the Commonwealth shall be read as including a reference to a disease due to the nature of the employment in which the first mentioned employee was engaged by the Commonwealth.”
Section 10 of the 1930 Act provides an entitlement to compensation where an employee is suffering from a disease and is incapacitated for work, or where the death of an employee is caused by a disease, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth. This section was inserted in that form in 1948.
72. The concept in s 4(2) of equating a disease case with an injury case is difficult insofar as s 16(1)(a) provides for a limitation period of 6 months from the “occurrence of the accident”. Further, the structure of s 16 is that the proviso to s 16(1) is clearly intended to relate to the substantive provisions of s 16(1), both from its place within s 16(1), and also because s 16(1)(ii) refers to “the period above specified”; these words are not apt to refer to the period provided for in a later sub-section, namely s 16(4). It could also reasonably be argued that s 16(4) is intended to be the sub-section that relates to claims for disease (as opposed to claims for injury by accident), because s 16(4) fixes a more appropriate time limit than the time limit applicable to claims for an injury, in that it provides that time does not run in the case of a claim for disease until the employee first becomes aware that he or she was suffering from the disease.
73. For the sake of completeness, I should record my findings if (contrary to the approach in McGuire) the ameliorating provisions of s 16(1) do not apply to a claim for disease, and if (contrary to my above conclusion) Mr Tralongo’s hearing loss constitutes a disease and not an injury. In those circumstances, I would conclude that Mr Tralongo’s claim was not admissible, because he did not give notice as soon as practicable after becoming aware that he was suffering from a hearing loss, and he did not claim compensation within 6 months of becoming so aware, as required by s 16(4) of the 1930 Act.
Conclusion
74. However, for the reasons referred to above, I have concluded that Mr Tralongo’s claim should properly be regarded as a claim for an injury, and that (on the evidence adduced to date, and subject to the reservations referred to in paragraph 6 above) his failure to give notice and to claim compensation within the prescribed time should be excused under the proviso to s 16(1) of the 1930 Act, and so the Commission’s preliminary objection should be dismissed. Curiously, where an employee has been excused for want of notice or failure to claim within the prescribed period because of one of the exceptions in the proviso to s 16(1) operates in that period, there is no obligation on the employee to give notice as soon as the relevant exception ceases to operate. The absence of such an obligation can leave the Commonwealth in a difficult position where (as in the present case) a claim is made so many years after the relevant accident.
Decision
75. For the above reasons, I set aside the decision under review, and in place of that decision, dismiss the Commission’s preliminary objection that Mr Tralongo is not entitled to claim compensation for his hearing loss by virtue of the provisions of s 124(10) of the 1988 Act. I reserve liberty to apply within 14 days in relation to the costs of the proceedings. I order that in the absence of any such application, the respondent pay the costs of the proceedings.
I certify that the 75 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N. Quirke AssociateDate/s of Hearing 9 August 2004
Date of Decision 25 November 2004
Representative for the Applicant Mrs M Tralongo
Solicitor for the Applicant -
Advocate for the Respondent Ms K Bean
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