Risson and Comcare
[2003] AATA 656
•11 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 656
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1497
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD GILBERT RISSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Mr C. Ermert, MemberDate11 July 2003
PlaceMelbourne
Decision 1. The notice given to Comcare on 1 June 2000 is taken to have been given under s 53 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2. The Tribunal has jurisdiction to hear Mr Risson’s application for review of the reviewable decision of 17 October 2001 which affirmed a determination rejecting his claim for compensation for post traumatic stress disorder.
(Sgd) Joan Dwyer
Senior Member
COMPENSATION – jurisdiction hearing – whether notice of injury given as required by s 53 of the Act – whether claim can be notice – meaning of the period “as soon as practicable after the employee becomes aware of the injury” – mistake in lodging claim under other legislation – whether ignorance, mistake or other reasonable cause need only cover the period of failure to give notice specified in s 53(1) of the Act – whether Murray v Baxter applicable notwithstanding differences in terminology between different legislation – notice taken to be given under s 53 – Tribunal has jurisdiction to hear application
Benjamin v Repatriation Commission [2001] FCA 1879
Pacific Manning Company Pty Ltd v Barton [2003] FCA 498
Murray v Baxter (1914) 18 CLR 622
Comcare Australia v McGuire (1996) 68 FCR 329
Commonwealth v Connors (1989) 86 ALR 247
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Commonwealth of Australia v Whillock (1983) 48 ALR 433
Commonwealth v Pisani (1987) 12 ALD 299
Safety, Rehabilitation and Compensation Act 1988 ss 4 and 53
Compensation (Commonwealth Government Employees) Act 1971
Commonwealth Employees’ Compensation Act 1930
REASONS FOR DECISION
11 July 2003 Mrs Joan Dwyer, Senior Member
Mr C. Ermert, Member1. This was a hearing as to jurisdiction. It arose in respect of an application for review of a reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) on 17 October 2001. That reviewable decision affirmed a primary determination made 30 November 2000, rejecting Mr Risson’s claim, made 1 June 2000, for compensation under the Act in respect of post traumatic stress disorder (PTSD).
2. At the hearing Mr Wicks of Counsel appeared for the applicant. Ms McMahon of Counsel appeared for the respondent. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), and also the exhibits tendered during the hearing. Mr Risson gave evidence.
3. The claim lodged on 1 June 2000 (T11 pp57-58) sought compensation for PTSD and also for “asbestos/testicle injury, right shoulder/malignant skin cancer”.. The primary and reviewable decisions seem to refer only to the PTSD aspect of the claim. Counsel for the parties agreed that the only condition the subject of the jurisdiction hearing was the PTSD.
4. In the reviewable decision (T18), the respondent raised the issue of whether Mr Risson had complied with the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) as to the giving of notice. It was claimed in the reviewable decision that Mr Risson "must have been aware that he was suffering from an illness(most likely psychiatric) of some nature by March 1972". (Tdocs p70). The reconsideration decision-maker asserted that accordingly, under s 124(1A) of the 1988 Act, Mr Risson was not entitled to compensation unless compensation would have been payable in respect of the injury under the 1971 Act.
5. This hearing was arranged in order to consider whether the Tribunal had jurisdiction under the 1988 Act to decide if Mr Risson was entitled to compensation in respect of his psychiatric illness. By the time the hearing commenced, it had been agreed between the parties that the issues to be dealt with at this hearing were confined to the issue of jurisdiction to deal with a claim for compensation for PTSD.
6. The Tribunal raised with the parties the possibility of Mr Risson’s psychiatric disease being diagnosed as a disease other than PTSD. The Tribunal referred the parties to Benjamin v Repatriation Commission [2001] FCA 1879 in which the Full Court of the Federal Court held that the Tribunal is obliged to determine the substantive issues raised by the material and evidence before it and is obliged not to limit its determination to the “case” put by an applicant. The Full Court said at paragraphs 47 and 48:
47 Proceedings before the Tribunal sometimes give the appearance of being adversarial but, in substance, a review by the Tribunal is inquisitorial. Each of the Commission, the Board and the Tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the Tribunal is one in which the Tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant - Grant v Repatriation Commission [1999] FCA 1629 paragraphs [17]-[18], 57 ALD 1 at 6 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
48 The facts that the claim originally lodged by the Veteran referred only to "PTSD" and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of "post traumatic stress disorder" do not preclude the relevant decision-maker, be it the Commission or the Tribunal, from reaching a conclusion that the Veteran suffered from a different disability. Certainly, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration. However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it.
7. The parties informed the Tribunal that they had agreed that the only claimed condition the subject of this substantive application was the PTSD and that a separate claim would be lodged in respect of any other psychiatric illness from which Mr Risson may suffer. The reason for that agreement seemed to be that different issues would arise if it were claimed that Mr Risson suffered from a disease of which he had been aware prior to the commencement of the 1988 Act on 1 December 1988.
BACKGROUND
8. Mr Risson enlisted in the Royal Australian Navy (“the RAN”) in April 1968 at the age of 17. He was discharged with the rank of Mechanical Engineer in March 1972.
9. It seems from the material before the Tribunal that Mr Risson had treatment for stress related or psychiatric problems during his service in the RAN and subsequently, particularly, over the years from 1978 to 1996. However, the respondent did not dispute his evidence that he was first diagnosed as suffering PTSD in 1996.
10. On 27 September 1995, a psychiatrist, Dr Katz, wrote to solicitors acting on behalf of Mr Risson advising that he had first treated Mr Risson on 16 February 1994 when he presented with symptoms of “a stress disorder, including mood swings, anxiety, panic episodes, irritability, hypersensitivity, impaired concentration, and sleep disturbance” (T4, p25). Dr Katz, at that time, attributed the condition primarily to protracted and bitter divorce proceedings, but also to stress as a result of an asbestos related lung condition relating to his previous employment with the Navy.
11. In a report dated 5 September 1997, Dr Payne, Mr Risson’s current treating psychiatrist, wrote that he had taken over treatment of Mr Risson, after Dr Katz had left the practice. Dr Payne diagnosed Mr Risson as suffering from depression with elements of PTSD (T5, p26). Dr Payne wrote at pp26-27:
I understand that Dr Katz’ diagnosis was that he suffered from depression with elements of Post-Traumatic Stress Disorder.
There were also symptoms present at interview which suggested this diagnosis of Post-Traumatic Stress Disorder. He does suffer from chronic hyper-arousal and continually ruminates about incidents in his past, mostly related to war service. He finds it difficult to cope with situations which contain any reminders of these traumas, such as his description of “a door slamming sounds like a bullet going through a rubber tree”.. These have caused some restrictions in his life, in particular a general avoidance of stressful situations. The PTSD symptoms are somewhat protean and the diagnosis depends on a definite history of previous stressful events.
12. In a later report of 30 October 1999 (T8), Dr Payne wrote (p37):
Typical of his symptoms is his re-experiencing a flashback of “blood and brains all over the side of my face” relating to a shooting incident which occurred in Vietnam
Dr Payne added (p38):
Mr Risson appears to suffer from both depression and anxiety symptoms which could be interpreted as part of a Post-Traumatic Stress syndrome
13. In a report (T19) dated 13 November 2001 addressed to the Department of Veterans’ Affairs, Dr Payne responded to the point made in the reviewable decision, that Mr Risson had not raised the diagnosis of PTSD at discharge in 1972. Dr Payne explained (T19, p72):
As this concept was scarcely formulated in the 1970’s it is perhaps unsurprising that the diagnosis was not made at the time, and as Mr Risson expressed it to myself he “did not know that he had the illness” at the time.
14. Dr Payne added (T19, p72):
Post-Traumatic Stress Disorder is a syndrome defined by the Diagnostic and Statistical Manual of Mental Disorders as involving “the development of characteristic symptoms following a psychologically distressing event that is outside the range of usual human experience.” The types of situations described are those involving a serious threat to one’s own life or involvement in situations where there is a serious threat to the lives of others.
The prominent symptoms displayed in this disorder are “recurrent and intrusive recollections of the event”, persistent avoidance of stimuli associated with it, distress at stimuli associated with the trauma, and chronic hyper-arousal.
That these symptoms do persist for many years is not my own opinion but the opinion of the general psychiatric community.
15. The circumstances which Mr Risson claims led to him suffering PTSD arise out of two situations. In part he relies on a collision at sea on 3 June 1969 between HMAS Melbourne and the United States ship USS Frank E Evans. At the time Mr Risson was serving in the Australian Navy in HMAS Parramatta. That ship received early news of the collision and immediately proceeded to the area where the collision occurred, in order to assist in the rescue effort.
16. As would be expected, that collision is well documented. There is no dispute about the facts that the collision occurred, that lives were lost as a result of the collision, that HMAS Parramatta assisted in the rescue efforts and that Mr Risson was serving in HMAS Parramatta at the time.
17. On a substantive hearing there would need to be evidence as to the precise role played by HMAS Parramatta, as to Mr Risson’s personal involvement in the rescue operations and as to the effects, if any, of that involvement on his mental state, and whether it caused or contributed to him developing PTSD. No decision as to those matters arises in this jurisdiction hearing.
18. The other aspect of Mr Risson’s claim relates to quite a different situation. Mr Risson stated in a signed statement of 25 September 2002 (A1) that certain events occurred when, shortly after the collision, he was transferred to shore duty and engaged in incidents involving the use of firearms which resulted in the death of a serviceman with a head shot. The respondent denies that any such incident occurred and denies that Mr Risson was at any stage transferred to shore duty in Vietnam or from HMAS Parramatta.
19. Service in Vietnam was not referred to in the applicant’s Statement of Facts and Contentions in this matter, but it was the subject of a claim made by Mr Risson under the Veterans' Entitlements Act 1986 ("the VE Act") dated 30 April 1996 and lodged on 2 May 1996 (A4). That claim was rejected by the Repatriation Commission on 30 May 1996 and that decision was affirmed by the Veterans’ Review Board 25 February 1997.
20. Mr Risson applied to the Administrative Appeals Tribunal ("AAT") for review of the reviewable decision made under the VE Act. He did not appear at the AAT hearing, having advised the Tribunal that he was too ill to attend.
21. On 17 March 1998, the AAT affirmed the decision under review on the basis of official records and the report of a historian. The Tribunal concluded that there was insufficient evidence to support Mr Risson’s contention that he had “operational service” in Vietnam. Without operational service, he had no entitlement to pension under the VE Act.
22. It is not clear whether or not Mr Risson intends to continue to rely on the events which he alleges occurred during shore duty in Vietnam, if this matter proceeds to a substantive hearing. If he does every aspect of his account would clearly be in issue.
23. Mr Risson's evidence at this hearing was that in about April 1996, after he became aware of the diagnosis of PTSD, he had an appointment with the Department of Veterans’ Affairs. He said he also saw someone at the Returned & Services League ("RSL") and was told it would be a straightforward matter to make a claim for his PTSD. That advice, it would appear was given on the basis of the history he gave of having been involved in active service in Vietnam.
24. Mr Risson said that he did not believe, in 1996, that he was entitled to compensation under the compensation legislation because it was his belief that the VE Act applied to him, as he had been “in a conflict situation”. He explained that was why he lodged a claim under the VE Act.
THE LAW
25. The respondent’s Statement of Facts and Contentions dated 11 October 2002 contended that the provisions of the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”) were relevant. The respondent’s Supplementary Statement of Facts and Contentions referred also to the 1971 Act.
26. Counsel asked for time to talk at the commencement of this hearing. After an adjournment the Tribunal was advised that the parties agreed, on the basis that Mr Risson said he was only made aware of the diagnosis of PTSD in 1996;
The question of whether the Applicant gave notice of injury as soon as practicable after he became aware of the claimed injury of PTSD is to be determined pursuant to s 53 of the SRC Act.
The reference to the SRC Act is a reference to the Act we have referred to as the 1988 Act. We agree with the analysis of Counsel that the issue before the Tribunal, concerning PTSD is to be determined pursuant to the 1988 Act.
27. Section 53 of the 1988 Act, so far as relevant, provides as follows:
(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury;
….
(3)Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
28. The effect of section 53(1) is that the Act does not apply in relation to an “injury”, which term is defined in s 4 of the Act to include:
(a) a disease suffered by an employee,
unless notice in writing of the injury is given to “the relevant authority”, in this matter that is Comcare:
“(a)as soon as practicable after the employee becomes aware of the injury”
29. Mr Wicks did not submit that notice was given to Comcare, “as soon as practicable after”, Mr Risson became aware that he had been diagnosed as having PTSD. He submitted, rather, that we should find, under s 53(3), that the notice given by lodging a Comcare claim form on 1 June 2000 should be treated as a sufficient notice and be taken to have been given under s 53(3) of the Act.
30. That submission raises several issues:
(i)Was the claim form of 1 June 2000 . . . “notice in writing of the injury”, given to the relevant authority within s 53(3)(a)?
(ii)Did that notice fail to comply with the requirement that notice be given as soon as practicable after the applicant became aware of the injury as contemplated by s 53(3)(b)?
(iii)Do the circumstances satisfy one or more of the requirements of s 53(3)(c) either:
(a)That the relevant authority will not by reason of the failure be prejudiced if the notice were treated as a sufficient notice or
(b)That the failure resulted;
from ignorance,
from a mistake or
from any other reasonable cause?
(i) Notice of the injury (s53(3)(a))
31. In Pacific Manning Company Pty Ltd v Barton [2003] FCA 498 ,Von Doussa J easily disposed of the argument that a claim for compensation is not a “notice of injury”. His Honour said at paragraph 46:
46 Counsel for the employer baldly asserted that the WorkCover form of notice of injury forwarded to the employer on 17 December 1998 was not a notice of injury. Why that should be so was not explained and I am unable to construe the document other than as a notice of injury. Further, it was then contended that the SRC Act form submitted on about 8 January 1999 was not a notice of injury because it was a notice of claim under s 63. In my opinion a notice of claim can also constitute a notice of injury. An argument to the contrary, similar to that advanced by the employer in this case, was rejected by French J in Comcare v Luck (1999) 29 AAR 403 at [60] and [61].
We are satisfied that the claim form of 1 June 2000 was a notice of injury within s53(3)(a).
(ii) Failure of notice to comply with s53(1)(a), as contemplated by s53(3)(b)
32. Mr Wicks did not contend that the notice complied with the s 53(1)(a) requirement that it be given as soon as practicable after Mr Risson became aware of the diagnosis of PTSD. In many matters, the very facts which would establish that a failure to give notice of injury resulted “from ignorance, mistake or from any other reasonable cause”, also establish that it was not “practicable” to give notice of an injury at any time earlier than the time when such notice was in fact given. Thus in Pacific Manning, the issue was whether the notice was given “as soon as practicable” after Mr Barton became aware of his injury. That is not the way in which Mr Wicks put his client’s case. It was implicit in Mr Wicks’ submission that he conceded that it would have been practicable for Mr Risson to give notice of injury at the same time as he lodged his claim under the VE Act, namely by 2 May 1996.
33. We find that the notice of 1 June 2000 failed to comply with the requirement that notice in writing of injury be given as soon as practicable after Mr Risson became aware of the diagnosis of PTSD.
(iii) The s53(3)(c) issues
34. Mr Wicks submitted, first, that Mr Risson’s failure to give notice of injury before 1 June 2000 resulted from “ignorance, from a mistake or from any other reasonable cause”.. In the alternative he submitted that Comcare had not established that it would be prejudiced, by reason of Mr Risson’s failure to give notice in 1996, if the notice given on 1 June 2000 were treated as a sufficient notice.
35. We consider it practical to consider first the issues of ignorance, mistake or other reasonable cause. Only if we find that the failure to give notice “as soon as practicable” did not result from any of those causes, do we need to consider the issue of prejudice. In Comcare Australia v McGuire (1996) 68 FCR 329 at p348E, Carr J said of a similar section (s 16(1) of the 1930 Act):
As a matter of construction, I do not read the proviso in s 16(1)(i) as requiring the Commissioner (or the Tribunal for that matter) to have regard to the matter of prejudice to the Commonwealth once the Commissioner (or the Tribunal) finds that the circumstances fall within any of the alternatives. They should, in beneficial legislation of this type, be treated as true alternatives. If prejudice to the Commonwealth were to stand as a bar to admission of the claim, that would require, in my view, an express provision to that effect. What Parliament has provided are alternatives excusing the want of or any defect or inaccuracy in the notice.
36. Mr Wicks, in paragraph 6 of his written submission, submitted that the relevant time, as to which the applicant must establish that ignorance, mistake or any other reasonable cause caused him to fail to give notice of injury, is the time specified in s 53(1)(a) of the 1988 Act. As set out above, that is, “as soon as practicable after the employee becomes aware of the injury”. Mr Wicks suggested that would cover the period up to the lodging of the claim under the VE Act on 2 May 1996.
37. Mr Wicks developed his argument by reference to Murray v Baxter (1914) 18 CLR 622 at 632-633 where Isaacs and Gavan Duffy JJ said:
Dr. Brissenden raised a further point of considerable importance. He contended that the whole period from the termination of the five months--that is, from about the beginning of October 1912--to the date when the action was commenced--viz., September 1913--must be covered by the plaintiff's excuse. To sustain that, it was necessary to contend, and learned counsel did contend, that "the failure" secondly mentioned in paragraph (b) of sec. 12 meant "the failure to commence proceedings before their actual commencement." But that is an impossible construction of the words of the paragraph, unless we proceed to virtually legislate. "The failure" secondly mentioned refers to "the failure" just previously mentioned, and that is "the failure to commence proceedings within the period above specified." You cannot imply a period where one is expressly "specified." The "period above specified" for the commencement of an action is expressly stated to be "within six months from the time of death"; and "within" does not include a period "beyond." The Act distinctly states and limits within fixed termini a condition precedent; it permits that condition to be excused; if it is excused its effect ceases, and if we were to extend the limits specified we should be creating a different condition.
38. Their Honours, in Murray v Baxter, stated, “You cannot imply a period where one is expressly specified”. In that case the period specified in the legislation was, “within six months from the time of death”.. That is a much more precise period than the period covered by the words “as soon as practicable after the employee becomes aware of the injury”.
39. Ms McMahon did not seek to distinguish Murray v Baxter, because of the difference in wording between s 16(1) of the 1930 Act and s 53 of the 1988 Act. Mr Wicks submitted that the relevant period was the period between when Mr Risson first became aware that his treating doctors had diagnosed him as suffering from PTSD and 2 May 1996 when he lodged his claim to have PTSD recognised as war-caused under the VE Act. Ms McMahon did not dispute that analysis.
40. As to the period until 2 May 1996, Mr Wicks submitted in paragraph 7.1 of his submission:
The evidence is that the Applicant turned his mind to the question of his entitlements and formed [a] mistaken view as to how to pursue his rights.
Mr Wicks referred to Commonwealth v Connors (1989) 86 ALR 247 and Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665.
41. Mr Wicks continued (submissions p8):
7.2As argued, the timing of the mistake is relevant. The issue is the failure to give notice within a reasonable time after becoming aware of the injury. In Re Willis, after considering the authorities, the Tribunal concluded (at p.674):
The effect of all these authorities, I consider, is that when an applicant knows the law to the degree that it provides that, in the case of injury in his employment, he is entitled in some circumstances to compensation, and bona fide applies his mind with the information in his possession and knowledge to the question of the application of the law as he knows it to the facts of his own particular case, and misconceives his true position in law or fact or in both combined, he is not ignorant, but mistaken, although his mental process may not reach the standard which would be ascribed to a reasonable man.
7.3The evidence herein is that the Applicant reached a conclusion that his entitlements were to be pursued under the VEA. He was wrong about that. All the same he pursued what he mistakenly believed to be the correct course and he did so in a timely manner. His mistake was not about the existence of the right to make a claim, but as to which legislation to claim under. Northrop and Gray JJ in Connors (at p.250) concluded:
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.
42. Ms McMahon accepted that analysis of the relevant authorities. She did raise some issues as to Mr Risson’s credibility in respect of his description of the nature and onset of his symptoms of PTSD. Those matters may be relevant as to the substantive issues. They do not give us any reason to doubt Mr Risson’s evidence that he formed the mistaken view that an application under the VE Act was the appropriate means of seeking pension or compensation in respect of his condition which was diagnosed as PTSD.
43. We find that Mr Risson applied his mind to the question of the application of the law to the facts of his case and, to use the words of the Tribunal in Re Willis, he, “misconceive[d] his true position in law or in fact or in both combined”. His misconception related either to the nature of his service or to the application of the VE Act to him or to both combined.
44. Accordingly we find that the failure of Mr Risson to give notice in writing of his injury, PTSD, to Comcare “as soon as practicable after the employee becomes aware of the injury”, resulted from a mistake.
45. Even though it was not raised by Counsel, we have given some consideration to the issue whether Murray v Baxter does apply as submitted, in spite of the changed wording in s 53 of the 1988 Act. The difference in terminology between s 16 of the 1930 Act and s 53 of the 1988 Act is significant. There is Federal Court authority pointing to the significance of differences in wording in different compensation legislation. In Commonwealth of Australia v Whillock (1983) 48 ALR 433, St John J, who agreed with the reasons of Smithers J, said at p444:
My approach to decided cases in the field of workers’ compensation is that decisions on the interpretation of Acts other than the one under scrutiny in this appeal are instructive as to the reasoning process but, where the wording differs, are not decisive in the resolution of the particular problem of interpretation being faced here.
Similarly in Commonwealth v Pisani (1987) 12 ALD 299 Evatt J at pp301-302 pointed out that:
Care must be taken in applying the reasoning of the High Court and Privy Council in cases where those courts were considering the Commonwealth compensation legislation under the Commonwealth Employees' Compensation Act 1930 (the 1930 Act); the 1971 Commonwealth legislation, namely Compensation (Commonwealth Government Employees) Act, where the definition of "injury" expressly excluded a disease or an aggravation of a disease, and the New South Wales or the Queensland workers' compensation legislation. Those State Acts have for some years defined the word "injury" to include a disease.
46. The same care must be taken in applying the principles laid down by the High Court in Murray v Baxter, to the different statutory provision in s 53 of the 1988 Act. The High Court, as set out in paragraph 37 above, said that the relevant failure is “the failure to commence proceedings within the period above specified”. In that matter, the period specified in s 16(1) of the 1930 Act was expressly stated to be “within six months from the time of death.” The High Court said “within” does not include a period “beyond”. It continued:
The Act distinctly states and limits within fixed termini a condition precedent; it permits that condition to be excused; if it is excused its effect ceases, and if we were to extend the limits specified we should be creating a different condition.
47. However s53(a)(1) does not contain similarly “fixed termini”. It is therefore necessary to consider what is the precise “failure” referred to in s 53(3)(b). It is the failure to give the notice of 1 June 2000 “as soon as practicable” after Mr Risson became “aware of the injury”. As explained above, Mr Wicks submitted, and Ms McMahon did not suggest otherwise, that on the facts in this matter, it would have been practicable for Mr Risson to give notice of the injury at the same time as the claim under the VE Act was lodged, namely 2 May 1996.
48. We accepted that submission and found that s 53(3)(b) applied because the notice of 1 June 2000 “failed to comply with the requirements of s 53”, by not having been given by 2 May 1996. Unless we had made that finding, s 53(3)(c) would not have been applicable. Once we have made the finding, the period set out in s 53(1)(a) is a finite period and the words of the High Court in Baxter v Murray are directly in point.
49. As already explained in paragraph 35 above, our finding that the failure to give the notice, "as soon as practicable after" becoming "aware of the injury" resulted from a mistake, means that the issue of prejudice does not require consideration. Nor is it necessary for us to consider the evidence as to the other possible mitigating factors in s 53(3), in respect of the specified period. While two factors may exist in conjunction, as pointed out by Carr J in McGuire at p350, all that is required for s 53(3) to apply, is a finding that the failure resulted from one of the relevant factors.
50. We find that the notice given on 1 June 2000 shall be taken to have been given under s 53 of the Act. Accordingly the Tribunal has jurisdiction to hear Mr Risson’s application for review of the reviewable decision of 17 October 2001 which affirmed a determination rejecting his claim for compensation for PTSD.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member and Mr C. Ermert, MemberSigned: Grace Carney
Personal AssistantDate/s of Hearing 3 and 13 June 2003
Date of Decision 11 July 2003
Counsel for the Applicant Mr G Wicks
Solicitor for the Applicant Clarke & Toop
Counsel for the Respondent Ms A McMahon
Solicitor for the Respondent Australian Government Solicitor
2
10
0