Rose and Comcare
[2003] AATA 1286
•16 December 2003
CATCHWORDS – COMPENSATION – Workers' Compensation – whether applicant failed to give notice or lodge claim for compensation in the prescribed period - whether injury/disease suffered in the course of or arising out of the applicant’s employment – whether applicant made a mistake at fact and/or law as to whether compensation could be payable for his disease – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 62 and 124; Part X
Compensation (Commonwealth Government Employees’) Act 1971 ss. 4, 5, 53, 54, 70 and 128
Administrative Appeals Tribunal Act 1975 ss. 26 and 37
Commonwealth Employees’ Compensation Act 1930 ss. 4, 10 and 16
Commonwealth Workmen’s Compensation Act 1912
Willis and Australian Telecommunications Commission (1989) 10 AAR 382
Stevenson v Metropolitan Meat Industry Commission (1937) 37 SR (NSW) 109
DECISION AND REASONS FOR DECISION [2003] AATA 1286
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2001/367 and
GENERAL ADMINISTRATIVE DIVISION ) S2002/83
Re ALFRED ROSE
Applicant
AndCOMCARE
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 16 December, 2003
Place: Adelaide
Decision:The Tribunal:
1.sets aside the reviewable decisions dated 4 March, 2002 and 6 September, 2001 and the determination dated 7 June, 2001; and
2.substitutes a decision that the applicant is not prevented from making a claim for compensation by reason of his failure to make a claim for compensation within the time specified in s. 16 of the Commonwealth Employees’ Compensation Act 1930 (“1930 Act”) or s. 54 of the Compensation (Commonwealth Government Employees’) Act 1971.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 2 October, 2001, the applicant, Mr Alfred Rose, applied for review of a reviewable decision of a delegate of the respondent, Comcare, dated 6 September, 2001. The delegate affirmed a determination dated 7 June, 2001 that compensation was not payable to Mr Rose under the Safety Rehabilitation and Compensation Act 1988 (“1988 Act”) in respect of alcoholism. On 4 March, 2002, a delegate of Comcare revoked both the reviewable decision and the determination. In place of the determination, she substituted a determination that Mr Rose’s claim for compensation was not made within the period prescribed in s. 54(2) of the Compensation (Commonwealth Government Employees) Act 1971 (“1971 Act”) and that, consequently, Mr Rose was not entitled to compensation under the 1988 Act. Mr Rose applied for review of that decision on 22 March, 2002.
At the hearing, Mr Rose was represented by Mr Bulloch and Comcare by Mr Cole of counsel. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence together with the delegate’s decision dated 4 March, 2002, a letter from Comcare’s solicitor to Dr Thompson dated 15 August, 2002, a message from Dr Jeff Stewart dated 29 November, 2001, a message from Sue of Central Clinic at Port Pirie with additional handwritten notes, Sparke Helmore attendance record dated 6 December, 2001, a handwritten note and Sparke Helmore attendance record dated 21 December, 2001, a bundle of documents from the Royal Adelaide Hospital file, a bundle of ten documents under cover of a letter from Mr Richard Coates dated 31 January, 2003, letter to Mr Rose dated 24 November, 1997, a letter from Mr Coates dated 23 May, 2002 including extract from the Dictionary of Medicine and Nursing and sick leave records and a statement by Mr Rose dated 31 January, 2002 with attachments. The records of private medical practitioners, including Dr Thompson and Dr Stewart could not be located. Oral evidence was given by Mr Rose in support of his claim.
THE ISSUES
The issue at this stage of the case is whether Mr Rose has given notice of his injuries or diseases or lodged his claim as required by either the Commonwealth Employees’ Compensation Act 1930 (“1930 Act”) or the 1971 Act (as appropriate) under which Comcare’s liability is to be determined. Determining the legislation under which Comcare’s liability is determined also requires determination of the date on which the injury for which Mr Rose claims compensation arose.
BACKGROUND
For the purpose of resolving the initial issue, I have made the findings of fact set out in the following paragraphs. I have not made them for resolving any wider issues for the case was conducted on the very narrow basis of the single issue.
Mr Rose, who was born on 25 August, 1937 in Kalgoorlie in Western Australia, has eight brothers, none of whom is an alcoholic. He attended school in Kalgoorlie and his family is still there but he left in 1952 when he was 15 years of age. Mr Rose left to join the Commonwealth Railways or, as it is now known, the Australian National Railways (“ANR”). For the first six years, Mr Rose was a silver boy whose duties required him to wash up. When he was 21 years of age, Mr Rose started as a food and Drink Waiter in a Dining Car where he served breakfast, lunch and dinner on trains from Port Pirie to Kalgoorlie and return (four day round trip) and Port Pirie to Alice Springs and return (five day round trip). Mr Rose would spend nine hours in a hotel in Kalgoorlie before he returned to Port Pirie.
Mr Rose was promoted to a position as a Drinks Steward in the Club Car in approximately 1965. He worked there for three or four years and then became the Drinks Steward in a Dining Car. When he worked in the Club Car, he served drinks there but also worked as a waiter in the Dining Car and served meals in the Club Car. In all, he spent twelve years as a Drinks Steward or Drinks Waiter.
In 1969 or 1970, Mr Rose became the Senior Waiter in charge of a Dining Car. In that position, he was responsible for the whole service including the alcohol service on a Dining Car. There were three sittings of twelve tables at each meal time. He had sick leave at various times, some of which are referred to in the evidence below and was suspended from duty on 12 September, 1986 for consuming alcohol on 11 September, 1986. He was ultimately retired on the grounds of invalidity.
Mr Rose lodge a claim for compensation dated 14 November, 2000 in relation to “Alcoholism compounded by my work as drink waiter Redeployment refused even when recommend by Commonwealth Doc” (T documents, page 13). He said that he first noticed his illness in 1979 and that it was Dr Stewart who first treated him for it. In a supporting statement, Mr Rose said that:
“The reason for this claim was provoked by Comcare … and the specialists referral to my alcoholism.” (T documents, page 11)
Mr Rose named the person whom he believes had provoked his application and that person was the delegate who had made the reviewable decision in relation to his earlier claim for compensation in relation to his sternum injury.
In a determination dated 7 June, 2001, a delegate of Comcare refused Mr Rose’s claim on the basis that he had not provided sufficient notice of his condition to ANR as soon as practicable in accordance within the meaning of s. 53 of the 1971 Act. On review, a delegate of Comcare decided that sufficient notice had been given to ANR but affirmed the determination denying liability on the basis that there was no causal connection between Mr Rose’s Alcoholism and his employment. That reviewable decision was dated 6 September, 2001.
On 4 March, 2002, a delegate of Comcare again considered the determination dated 7 June, 2001 pursuant to s. 62(1)(b) of the 1988 Act. This time, the delegate considered Mr Rose’s claim on the basis of s. 54 of the 1971 Act, which applies to the time within which the claim was made rather than the time at which notice was given to ANR as is the case with s. 53 of the 1971 Act. She decided that the claim had not been made within the time allowed by s. 54(2) of the 1971 Act and, having set aside both the earlier reviewable decision and the determination, substituted a decision that Mr Rose was not entitled to be paid compensation for his Alcoholism. That later reviewable decision may be reviewed by the Tribunal pursuant to s. 26 of the Administrative Appeals Tribunal Act 1975.
THE EVIDENCE
Mr Rose’s employment by ANR and the commencement of his drinking
Mr Rose said that he had no difficulty with alcohol as a waiter but, in order to become a Senior Waiter, he had first to become a Drinks Steward. In that position, he was responsible for serving drinks as well as their storage and ordering. If a passenger came to the bar, he would have a friendly drink with him or her. Alcohol had been introduced in the Club Car in approximately 1961 or 1962 and so before Mr Rose started as a Drink Steward. He described the Club Car as being something like the bar in a hotel on wheels. He was responsible for maintaining the Club Car’s stocks and had the keys to lock and unlock it. No-one supervised him.
A couple of years after he had become a Drinks Steward, he began to drink heavily at work. Other staff on the train, but especially the waiters and kitchen staff would go to him and ask for a couple of stubbies to take back to the cabin. There was very little hierarchy. Initially, a couple of the stewards had refused to supply alcohol and they were disliked and not spoken to. If a person was seen to have a drink, he was obligated to serve the rest of the crew; this is how it worked, Mr Rose said. There was no beer or liquor ration for the crew as a term of their employment. He also said that he:
“… was in the middle of it all. We would stay back and have beers and it just grew on me, creeping up and changing my personality.” (Exhibit D, paragraph 5)
Mr Rose explained his reasons for drinking in the following paragraphs:
“8. I just drank with the other staff as everyone else was doing it. It was just like a football trip. No-one gave a stuff about anything. You couldn’t refuse other crew a drink as they would get half full and have a go at you. 90% of the crews would have been classified as alcoholics as they would start drinking before breakfast. There was no difference in my being a waiter or a senior waiter as I was still serving grog from the kitchen and saloon to the tables.
9.Some trips you wouldn’t get a day off for thirty days in a row. The rest of the crew would say ‘well we don’t get a day off to have a drink, as we will have to have one on our days at work’.
10.We would work through to Adelaide and the bus service provided by AN would pick us up and take us back to Pirie. When we got on the bus the bus driver would ask us where we wanted to stop for grog on the way home. The money for the grog would come from the money that we were being paid. Often these trips were on a Sunday and we would be getting double time for this trip home. Work knew of the amount alcohol being consumed on these trips and okayed it. The Union had okayed it as well. I was trying to give it up, but everyone would be drinking on the bus. Grog would run down the corridor of the bus and I was stuck in the middle because that was the only transport that work provided for me to get back to Port Pirie. I would just have to sit there with everyone smoking and drinking and by the time all the stops for drinks and toilets were made I would have been in that environment for four hours at a stretch. That was a nightmare really as I used to go to institutions to dry out but I would be stuck on the bus surrounded by colleagues drinking and being boisterous, sucking down cans of beer on this bus. What else was I going to do since work hadn’t provided me any other options in order for me to get home?
11.There was no-one to stop it on the trains. It wasn’t until I left AN that they realised the problem and started breathalysing people. AN knew exactly what was going on. Inspectors would come on the trains, but they would have a drink with the stewards as well. As a drink steward and a senior waiter I would often be the one who would have supply the inspector with their grog which they wouldn’t necessarily drink with us but since they were drinking, everyone else would as well.” (Exhibit D)
In his oral evidence, Mr Rose said that he started drinking when he started working in the Club Car. He served lunch for two or three hours and, as he then felt like a cold stubbie, he indulged in it while he was locked on the train. His drinking gradually increased over the years. After 10pm, there seemed to be a few parties on the train. The passengers would ask what was on that night and it became like a football trip in the end.
In his statement, Mr Rose referred to a Discharge Summary from St Anthony’s Hospital dated 14 July, 1983. It noted that the final diagnoses were Alcohol Dependence Syndrome and Alcoholic Liver Cirrhosis and that Mr Rose had a long history of alcohol consumption. Mr Rose had told the hospital staff that he drank to make himself less shy but also said that he actually detests alcohol (T documents, page 57). In his statement, Mr Rose said that he “… had to drink at work because everyone else did and they would coach you to have a drink so you couldn’t dob them in for anything.” (Exhibit D, paragraph 25)
Mr Rose said that the management of ANR knew that the staff were drinking on the trains and referred to an incident in which a Supervisor had given him money to purchase an additional four cartons of beer to cover the staff party on board the train. All staff were aware, Mr Rose said, that the ANR’s rule book required that they not drink. At the same time, the rules were ignored by everyone and management knew that.
The effect of Mr Rose’s drinking and his means of dealing with it
Mr Rose said in his statement that he realised that he had a problem with alcohol when he was a Drinks Steward. That was as far back as 1971 and he “went through rehabilitation” (Exhibit D, paragraph 12). The medical records of Mr Rose’s then general practitioner, Dr Pellew, show that Dr Pellew referred him to the Royal Adelaide Hospital (“RAH”). The clinical summary of the RAH dated 27 September, 1971 diagnosed “Alcoholic Liver Disease - ? Fatty Stage” (Exhibit 8). He referred to a certificate of sickness issued by the RAH on 27 September, 1971 for the period from 13 to 20 December, 1971 and a consequential application for sick leave (T documents, page 42). He had been hospitalised at the RAH from 21 September, 1971 and 27 September, 1971 (Exhibit 8). In his oral statement, Mr Rose said that he went to see Dr Stewart, who directed him to the RAH as he thought that he might be overindulging in alcohol. Mr Rose said that he was the only person who could rate him as an alcoholic; no-one else could.
Mr Rose said that he started to attend the Port Pirie Hospital as he was becoming ill from his drinking. In 1972 or 1973, he asked his supervisor, Mr Connole, for a transfer to a position as a second-class conductor so that he could get away from the alcohol. That would have been a demotion, he said, but he was prepared to take it in order to get away from the drink. Mr Connole told him, Mr Rose said, “No, you are all right there, you wouldn’t go back as everything has already been worked out and the wage rates have been set and we don’t want to bother altering them.” (Exhibit D, paragraph 13)
As he was becoming more ill due to drinking, Mr Rose said, he decided to see his doctor, Dr Stewart, to ask him for a certificate stating that he had to leave the Dining Car. At about this time, Mr Rose had an ulcer that haemorrhaged. Dr Stewart wrote that certificate on 29 January, 1976 stating that he recommended that Mr Rose be relieved of responsibility as Senior Waiter and be given a position as a conductor for approximately two months (T documents, page 50). Mr Rose said that Mr Connole refused to deploy him.
Mr Williams, the Acting Chief Traffic Manager wrote to Dr Thompson on 3 February, 1976 advising him that the medical appointment for Mr Rose had been made in order to determine whether Mr Rose was fit to continue his employment with ANR. Mr Rose’s behaviour was causing considerable concern and he had been in indifferent health for some time, Mr Williams told Dr Thompson. Mr Rose had told his supervisor that he had domestic difficulties and that his responsibilities as Senior Waiter were too much. Mr Rose had taken sick leave for duodenal ulcer, liver disease, peptic ulcer and haemorrhoids.
On 4 February, 1976, Mr Rose underwent that medical examination to ascertain whether he was fit for continued employment (T documents, page 51). The Medical Officer, Dr Thompson, stated that Mr Rose was suffering from a duodenal ulcer, which had been treated, and a functional nervous disorder. The latter condition was associated with Mr Rose’s responsibilities as Senior Waiter and with private troubles, the Medical Officer found. He considered that Mr Rose was not fit for employment as a Senior Waiter but suggested that he could be a conductor under supervision.
Mr Williams, the Acting Chief Traffic Manager, incorrectly read Dr Thompson’s recommendation as “waiter under supervision” and offered Mr Rose redeployment to that position (T documents, page 63). That was in a letter dated 12 February, 1976. He returned to his normal duties on 3 June, 1976.
On 1 September, 1978, Mr Rose was admitted to St Anthony’s Hospital where he remained until 29 September, 1978. The Discharge Note stated that Mr Rose’s physical and mental state had improved and that he had made fair progress but that he was at risk in his employment and needed further investigation regarding his liver pathology (T documents, page 54).
In his oral evidence, Mr Rose said that there were periods when he abstained from drinking for as long as he could and up to six months. He had a lot of rehabilitation and tried to protect himself from situations such as hotels and nightclubs. His last period of sobriety lasted for six to eight months in 1980.
On 28 November, 1980, the Supervisor of the Dining and Sleeping Car Service reported to the Operations Manager (Northern Region) his concerns regarding Mr Rose’s “booking off sick”. He was aware that Mr Rose had not enjoyed the best of health and expressed his concern that Mr Rose’s problems were due to the excessive consumption of alcohol (T documents, page 61). Mr Rose has sought assistance in the past but without any lasting benefit in the Supervisor’s view. Whether the Rehabilitation Officer could discreetly assist was uncertain, he continued, or whether “… Mr Rose might get the message if he was instructed to appear without warning before the Railways Medical Officer, Dr N. Elson, to ascertain to continue his present employment … is also doubtful. …” (T documents, page 61). In his oral evidence, Mr Rose said that he admitted in 1980 that he was an alcoholic. At that time, he asked Dr Stewart if he could be admitted to hospital so that he could withstand alcohol.
This incorrect reading of Dr Thompson’s report was continued in a memorandum written by the Acting Superintendent (Passenger Services) to the Operations Manager (Northern Region) on 5 December, 1980. That memorandum noted that Mr Rose had returned to his normal duties after Dr Thompson had again examined Mr Rose on 3 June, 1976. The memorandum noted that Mr Rose had a long history of illness and that he was known to have suffered from ulcers and a liver complaint. It also noted that Mr Rose had “booked off duty” on a number of trips although his records indicated only two occasions: January and February, 1980 for a total of ten days. On a trip on 18 January, 1976, Mr Rose had collapsed in Kalgoorlie. Although there was no evidence that he had partaken of intoxicating liquor, the nature of Mr Rose’s illness was such that, in other circumstances, a doctor would have been called. The Acting Superintendent (Passenger Services) recommended that Dining Car Inspectors closely scrutinise Mr Rose’s work while on duty.
On 28 December, 1980, Mr Rose was admitted once more to St Anthony’s Hospital and remained there until 16 January, 1981. Further admissions, first at the RAH from 13 June, 1983 to 24 June, 1983 (T documents, page 58) and then at St Anthony’s from 24 June, 1983 to 14 July, 1983 (T documents, page 57). Dr Seemanpillai certified that Mr Rose was unfit for work from 8 February, 1986 to 16 February, 1986 due to alcohol abuse related disorders (T documents, page 44).
Mr Rose said that he remained a Senior Waiter until 1986 but his drinking continued. It affected him so much that, on one occasion, he considered killing himself in the car. He said that he would sober up when he was in various hospitals and institutions where he stayed for up to six weeks but, as soon as he was put back in the environment of the trains, he would start drinking again. On a “blinding hot day”, he would see another of the stewards drinking next to him and that was it; he needed only one to start again.
At some time between 1976 and 1980, various doctors would ask him if he could transfer but ANR would not transfer him, Mr Rose said. He had been with ANR since he was sixteen and he knew nothing else. At the same time, he had three children to support.
In 1985, after repeated requests, he was put in the car barn for three weeks. He had asked for the transfer to help sort himself out. At the same time, he was to attend the Drug and Alcohol Centre but was unable to attend because his working hours did not permit him to do so. No-one was drinking in the car barn and Mr Rose was able to stop drinking for a longer period than he had previously achieved.
The conclusion of Mr Rose’s career with ANR
Mr Rose said that he was suspended from his employment on 12 September, 1986 for consuming alcohol on 11 September, 1986 (Attachment to Exhibit D). He was a patient at Hillcrest Hospital when staff of ANR told him that he was to be retired. His request to return to the car barn was declined. While at Hillcrest Hospital on 22 October, 1986, the Medical Officer found that Mr Rose had raised liver enzymes due to alcohol liver damage. It was a chronic relapsing disability, which was described as a “20 year history of excessive intake of alcohol aggravated by his job as drink waiter” (T documents, page 67). This assessment mirrored an earlier report of a Medical Officer, Dr Coulter, dated 9 October, 1986 (T documents, page 23). Dr Coulter considered that his work as a Drinks Waiter might have compounded his problems and that his loss of employment might ultimately prove to be a positive factor regarding his sobriety.
Mr Rose’s drinking since he left ANR
Mr Rose said that he had one bout of drinking in 1987 but that was the last time that he drank. He did not look for work as he had lost all of his self-confidence and hibernated while existing on his invalid pension and ComSuper payments. Mr Rose started to find his feet when he joined Alcoholics Anonymous in 1986 but he has never asked by ComSuper to undertake rehabilitation or to return to work.
Medical examinations subsequent to Mr Rose’s suspension from ANR
In a report prepared for the Department of Social Security on 29 October, 1986 in connection with Mr Rose’s claim for an invalid pension, a Commonwealth Medical Officer, Dr Potter, referred to Mr Rose’s long history of medical problems including dyspepsia, haematemesis and melaema associated with peptic ulceration. Dr Potter noted that Mr Rose had been “an inveterate drinker for 20 years” (Exhibit A, Document 1) and diagnosed Chronic alcoholism as his major condition with dyspepsia, spondylitis and chronic obstructive airways disease (mild) as the minor diagnoses. His capacity for work was limited by his alcoholism, arthritis and bronchitis. When Mr Rose’s entitlement to a pension was reviewed, Dr Pammany, a Senior Medical Officer, reviewed him on 10 February, 1993. Dr Pammany diagnosed Mr Rose as suffering from, among other conditions, a chronic depressive illness due to his addiction to alcohol.
A partially completed medical report dated 28 January, 1993 refers to a number of conditions from which Mr Rose was suffering and diagnosed chronic alcoholism as an intermittent condition (Exhibit A). Dr Byrne also diagnosed alcohol dependence as well as depression and certain physical problems in an undated report. A further partially completed medical report dated 28 January, 1993 refers to Mr Rose’s alcohol dependence but also notes that he had been “off alcohol” for the previous five years.
Mr Rose’s claim for compensation for bruised right lumbar region in back
Mr Rose claimed compensation for a bruised right lumbar region in his back from an accident on 24 September, 1974. Comcare accepted the claim and paid compensation for the period from 24 September, 1974 until Mr Rose returned to work on 5 October, 1974. He did not claim further compensation in respect of the condition until 12 May, 1990 when he sought compensation in respect of medical expenses and permanent impairment. Comcare began to pay for medical expenses from that time and Mr Rose underwent regular physiotherapy from July, 1990. Comcare determined on 15 June, 1995 that it would no longer be responsible for ongoing payments after 6 March, 1995. It affirmed its decision but the date of the affirmation is not in the papers I have.
On 15 April, 1991, Mr Rose claimed compensation for an injury that he alleged had occurred to his sternum and anterior rib cage as a result of exercising on 28 March, 1991. Dr Seemanpillai stated that the injury had occurred on 26 March, 1991 but Comcare found that Mr Rose had not undertaken physiotherapy or exercise treatment on that day. Although it initially accepted his claim on 18 November, 1997, it revoked that determination on 24 November, 1997 (Exhibit B).
Making a claim for compensation for alcoholism
Mr Rose said that he had paid all of his own medical expenses and had never been offered compensation or rehabilitation by ANR. He had used all of his sick leave and annual leave. Mr Rose said that he had claimed compensation in respect of an injury in 1974 when he was knocked over by a train in a shunting accident. He said that he had not applied for compensation when he kicked his big toe but ANR had paid his medical expenses. Although he was aware that there was a compensation system in place, Mr Rose said, he thought that it applied if a person broke a bone or had an accident. He did not know that he could claim for a sickness or disease. All the time that he was in the ANR, no one explained or informed him of his rights for compensation. He did not find out that compensation applied to matters other than accidents until after he left his employment with ANR. A lot of people at work hurt themselves and did not go on compensation because they would have to wait for their pay for two months. The claim had to be processed in Canberra and so they had to go on sick leave while the claim was sorted out.
Mr Rose said that he found out about compensation when he talked to an assistant in the office of his Member of Parliament, who told him that Commonwealth employees are entitled to compensation. She sent him information about the 1988 Act. He then started to think about whether he had a claim for alcoholism because he read in the dictionary that it is a disease. He looked up the word in late 1998 but was unaware that there was a six month time limit in which to make a claim. Mr Rose said that he was wondering whether it was really worth making a claim. He thought that he had seven years in which to make a claim. Mr Rose thought about it and spoke to a couple of his friends as he could not have done it on his own. Two of his friends attended the hearing with him. In 1999, he started trying to find documentation from the ANR, Drug and Alcohol Board and Social Security as well as the medical files. It took him a long time. By this time, the ANR was no more and people had been redeployed. The files were finally found and he travelled to Adelaide to look at them in May, 1999.
In cross-examination, Mr Rose said that he made a claim for a back injury in 1990 in respect of the shunting accident and that it took seven years to resolve. He denied that he had made his claim in 1990. Mr Rose agreed that he had stated in relation to his earlier claim for compensation that he knew that he had an alcohol problem in 1996 when he saw Dr Coats. At that time, he had his files from Comcare and he found out that Comcare was looking for his medical files. He was surprised that Comcare raised alcohol every time that he saw a specialist and he agreed with Mr Cole that he thought that he would raise it too. Mr Rose said that back in 1996, he realised that alcohol is a disease and he wondered about making a claim but did not pursue it. He was not sure if he had a claim. Mr Rose agreed that he knew earlier than 1996 that alcoholism is a disease and that some doctors referred to it as a liver disease. That went back as far as 1971 but he did not know that this might fall in the category that gave rise to a claim for compensation. He thought that alcoholism was as low as a person could get and that it would not be possible to claim compensation for it. He knew that compensation could be claimed for diseases and that alcoholism is a disease but thought that compensation could be claimed for diseases other than alcohol. Mr Rose said that he just “did not wake up to it” as a claimable disease and he had never heard of anyone getting it.
Later in cross-examination, Mr Rose said that he had not thought about making a claim before he saw Dr Coates about his back. At the time, he had a claim for compensation for his back and was not going to make another claim. Only later did he think about pursuing it. He was unhappy with Dr Coates as he thought that Comcare must have told him about his (Mr Rose’s) alcoholism; why else would Dr Coates have asked him about it, he asked.
Mr Rose said that the booklet that he was given by his Member of Parliament made him think that he could make a claim. After the end of his back claim, he had a holiday for a couple of months and then asked friends to help him with the claim. He started trying to find the documentation from ANR in 1998 or 1999.
LEGISLATIVE FRAMEWORK
1988 Act
Pursuant to s. 124(1) of the 1988 Act, that legislation applies to an injury, loss or damage suffered by an employee whether before or after 1 December, 1988. That date is the date that Part X of the 1988 Act commenced operation. A person is entitled to compensation under that legislation in respect of an injury, loss or damage suffered before 1 December, 1988 if compensation was, or would have been, payable to the person in respect of the injury, loss or damage under the Commonwealth Workmen’s Compensation Act 1912 (“1912 Act”), the 1930 Act or the 1971 Act (1988 Act, s. 124(1A)). The proposition is re-stated in effect in s. 124(2) of the 1988 Act.The 1930 Act came into operation on 10 November, 1930 and the 1971 Act on 1 September, 1971.
The word “injury” is defined in s. 4(1) of the 1988 Act to mean:
“(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;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against an employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
The hearing proceeded on the basis that alcoholism is a disease and so an injury within the meaning of the 1988 Act. Consequently, I have set out the relevant provisions relating to diseases in the 1930 Act and the 1971 Act.
1930 Act
Under the 1930 Act, an “injury” means “... any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury” (1930 Act, s. 4(1)). A “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” (1930 Act, s. 4(1)). Section 10 sets out those circumstances in which the Commonwealth is “… liable to pay compensation in accordance with the Act as if the disease were a personal injury by accident arising out of or in the course of his employment” (1930 Act, s. 10(1)).
Section 16(1) of the 1930 Act relates to an injury and provides that:
“The Commissioner [for Employees’ Compensation] shall not admit a claim for compensation under this Act for an injury … unless the claim for compensation has been made -
(a)within six months from the occurrence of the accident; or
(b)in case of death - within six months after advice of the death has been received by the claimant:
Provided always that -
(i)…
(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.”
As originally drafted, no reference was made in s. 16 to a claim for compensation in respect of a disease. Whether it was intended at that time to encompass such a claim on the basis that s. 10(1) was broad enough to have that effect is a question I do not need to consider. I do not need to do so for the answer became clear on 4 December, 1959. On that day, s. 16 was amended by the addition of s. 16(4), which provides, in so far as it is relevant:
“(4) In the application of this section, in accordance with section ten, and sub-section (2) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease –
(a)…
(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 –
(i)…
(ii)in any other case – within six months after the employee first became aware that he was suffering from the disease …
(c)…
(d)…”
The 1971 Act
At all relevant times, the 1971 Act defined a “disease” as including “.... any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development”. The word “injury” was defined to mean “.... any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease.” (1971 Act, s. 5(1)). The word “disease” is defined to mean:
“includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.” (1971 Act, s. 5(1))
Compensation is not payable under the 1971 Act unless a written claim has been served on the Commissioner for Employees’ Compensation (“Commissioner”) by or on behalf of the person who claims it. This was the effect of s. 54 at the time the 1971 Act was repealed by the 1988 Act but that had only been the case since 1 July, 1986. For most of the time that Mr Rose was employed by ANR, s. 54 was differently worded. At that time, s. 54(1) provided that compensation was not payable under the Act unless a claim in writing for compensation was served upon the Commissioner in the prescribed manner and within the prescribed period.
Section 54(2) set out the prescribed period and, in so far as it is relevant in this case, provided that:
“If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is -
(a)…
(b)in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant – the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; …
(c)…”
The effect of this provision was ameliorated in s. 54(6) which provides that:
“Where-
(a)a claim purporting to be a claim referred to in sub-section (1) of this section has been served on the Commissioner;
(b)the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, 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 claim shall be deemed to have been served in accordance with that sub-section.”
In this case, Mr Rose has clearly not given notice or claimed compensation under the 1971 Act while it remained in operation before 1 September, 1988. The 1988 Act has no provision to the effect that a claim may be served on Comcare rather than on the Commissioner to whom it had to be given under the 1971 Act. That must be implied from the general provisions giving Comcare power to do all things necessary or convenient to be done for, or in connection with, its functions (s. 70) and also from s. 128. Section 128 provides that any liability of the Commonwealth or of a Commonwealth authority under, among others, the 1971 Act, shall, to the extent that it has not been discharged before 1 December, 1988, be taken to have been incurred by, in the circumstances of this case, Comcare.
CONSIDERATION
It is apparent from a reading of each piece of legislation that there is an initial question to be asked in each case. That is as to the time at which Mr Rose was suffering from alcoholism and the time at which he became aware of that fact. The answer to the first question is dependent upon the medical evidence. In this case, that takes the form of the various medical records that have been produced. What they show is a consistent pattern of diagnoses of alcoholism and alcohol related disease and particularly liver disease induced by alcohol. I find that the pattern began in the clinical notes of Dr Pellew beginning in 1971 and followed up by the diagnosis of the RAH that Mr Rose was suffering from Alcoholic Liver Disease. The RAH questioned whether that disease had reached the fatty stage but that does not detract from its diagnosis. The later medical reports reached the same diagnosis but I am satisfied on the basis of Dr Pellew’s notes and the RAH report that Mr Rose was suffering from alcoholism by 27 September, 1971.
On the basis of Mr Rose’s evidence, I am satisfied that he became aware that he had a problem with alcohol when he was a Drinks Steward. I find that he moved from his position as a Drinks Steward to that of Senior Waiter in 1969 or 1970. That he felt that he had a problem is not indicative that he thought that he was suffering from the disease of Alcoholism. When he began to go to the Port Pirie Hospital, however, is the time that I am satisfied that he did become aware that his problem had moved from something that was a problem in the sense of a nuisance or an inconvenience to something that was making him ill. That he understood his illness is underlined by his asking for a transfer from his position as Senior Waiter. On the basis of his own evidence, I find that he asked for the transfer in 1972 or 1973. His illnesses, I find, continued after that time and he sought treatment and was treated at Hillcrest Hospital, St Anthony’s and the RAH. I am satisfied that his seeking treatment showed that he knew that he had a continuing illness and that alcohol was at its root. While he may not have acknowledged that he was an alcoholic and suffering from Alcoholism at that time, I am satisfied that from the very early 1970s and certainly by 27 September, 1971, Mr Rose knew that he was ill or ailing and that his inability to stop his consumption of alcohol was the cause of his illness or ailment. Even though he might not have been prepared to adopt the label of Alcoholism for his illness or aliment, and did not do so until some years later and perhaps not until 1979, I am satisfied that before he saw Dr Pellew on 27 September, 1971 he had become aware that he had a disease in the sense of, to use the words in s. 4(1) of the 1930 Act, a “…physical or mental ailment, disorder, defect or morbid condition …” or in the similar words of s. 5(1) of the 1971 Act.
My conclusion means that Mr Rose began suffering from Alcoholism while the 1930 Act was in operation. As I have set out above, ss. 16(1) and (4) required that Mr Rose’s claim for compensation should have been made within six months of the date on which he became aware that he was suffering from his disease. The precise date is unclear but it was some time in 1971. I find, therefore, that Mr Rose did not make a claim within the time limit prescribed under either the 1930 Act or the 1971 Act. Indeed, he did not make it until many years later in 2000.
In assuming that he found out before 1 September, 1971, I must consider whether or not he comes within the proviso to s. 16. The Tribunal, presided over by Hartigan J and of which Senior Member Lynch and I were members, in Willis and Australian Telecommunications Commission (1989) 10 AAR 382 reviewed a cross section of the major authorities which had considered the proviso.
In the first instance, it considered the time within which it is relevant to consider whether mistake or other reasonable cause led to a person’s failing to make a claim for compensation. It said:
“It was put to the court in Murray v Baxter (1914) 18 CLR 622 in considering similar provisions of the Workmen’s Compensation Act 1910 (NSW) that the whole period of the failure to bring the action, that is, from the expiration of the time allowed to bring the action (approximately October 1912) to the time the action was commenced (September 1913) must be covered by the period of the excuse. The proviso read, in part:
‘(b) the failure to commence proceedings within the period above specified shall not be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake, absence from New South Wales, or other reasonable cause.’
Isaacs and Gavan Duffy JJ held (with Griffith CJ dissenting) that the ‘failure’ referred to failure to commence proceedings within the period specified in s 12 itself namely, six months. They said (at 633):
‘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.’
The Tribunal adopts this interpretation with regard to the words of s16 of the 1930 Act.” (page 390)
For the same reasons, I also adopt this interpretation. I must consider whether Mr Rose’s failing to make a claim in the six month period after he first became aware that he was suffering from Alcoholism was caused by a mistake or other reasonable cause. That leads me to consider the meaning of the words “mistake ... or other reasonable cause” for Mr Rose’s failure was clearly not occasioned by his absence from Australia. Again, I adopt the analysis in Willis when it was said:
“The Federal Court in Connor’s case [Commonwealth of Australia v Connors (1989) 86 ALR 247, Northrop, Keely and Ryan JJ] said that the words `mistake ... or reasonable cause’ have been considered in many authorities such as Murray v Baxter (supra); Shotts Iron Co Ltd v Fordyce [1930] AC 503 and Black v City of South Melbourne [1963] VR 34 which were also cited to this Tribunal. Northrop and Ryan JJ referred with approval to the discussion of the problems (at 36-38) of Black’s case. In Black’s case Herring CJ, Lowe and Dean JJ said (at 37):
‘It has to be borne in mind, however, that what the applicant under the section has to show in order to make out a case of mistake thereunder, is not merely that he was mistaken but that his failure to give notice within the prescribed time was occasioned by mistake. It is not enough for him to show that he was mistaken, if in fact he was, unless that mistake occasioned the failure to give notice. The first inquiry must therefore always be as to the cause of the failure to give notice as required by the statute. If it appears that the reason why notice was not given as required was that the person concerned had never heard of the section and did not know of its requirements, then he fails to establish mistake occasioning the failure to give the required notice, even though it should turn out that he was labouring under a misconception as to the law relating to his claim. For, as we have seen, ignorance of the requirements of the section does not constitute a mistake thereunder.’
With regard to the question of ignorance of the law, Northrop and Ryan JJ also referred to Black’s case (at 37) where it was said: ‘Mere ignorance of the law is not a mistake ... there can be no such mistake unless there is an advertence to the subject-matter as to which mistake is alleged.’ Keely J in Connors’ case considered also the words of Isaacs and Gavan Duffy JJ in Murray v Baxter (at 629) when they said:
‘...Assume, however, the mistake is one of law, it is still a ‘mistake’. Roles v Pascall & Sons [1911] 1 KB 982 decided that the workman’s absolute ignorance that Workmen’s Compensation Act 1906 (UK) existed at all was not a ‘mistake’. In that case, however, Cozens-Hardy MR himself said (at 985): ‘A mistake means that a man takes a wrong view as to the construction or effect of an Act of Parliament, if it be a mistake of law.’
Keely J went on to refer to Stevenson v Metropolitan Meat Industry Commission (1937) 37 SR (NSW) 109 and referred to Davidson J, with whom Maxwell J and Owen AJ concurred, and who said (at 117):
‘The position then is that it is not an excuse to rely upon absolute ignorance of the law, but this cannot mean that an applicant is bound to know the law in its correct application to every set of facts: cf Harbon v Geddes (1935) 53 CLR 33, per Evatt J at 543.
... it appears that the applicant not only knew of the statute, but had made use of it successfully in recovering compensation for physical injury, so that he may also be presumed to have been aware that notice was required. He thought, however, that an accident was an essential and did not know that he could make a claim if he were put off with a sickness which had been caused by his work. If he relied merely upon the last part of this statement, it might indeed be suggested that he was only ignorant of the law, but if the two things be combined and his idea was that the necessary point of commencement was a accident, he may well have been the victim of a mistake.’
On the question of ignorance and mistake of law, this Tribunal also refers to the following passage from Davidson J’s judgment (at 118):
‘The reasonableness of the alleged mistake may, no doubt, be one of the matters which has to be taken into account by the tribunal dealing with the facts in considering the credibility of the applicant, and in arriving at a conclusion as to his mental attitude in the matter at the relevant time, but otherwise on the issue as between ignorance and mistake, the question is only one as to whether or not there was a mistake. Once mistake is established, it is immaterial to consider whether it is reasonable or otherwise: Murray v Baxter.
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.’
...
Although we have concluded that mistake occasioned his failure to make a claim, we have also considered whether there was `reasonable cause’ occasioning the failure. Again the Federal Court cited Black’s case with approval (see p 9 of the unreported reasons for judgment of Northrop and Ryan JJ) and referred particularly to the following passage at 38:
‘The inquiry here appears to be of a much wider kind justifying a more liberal attitude. The expression ‘reasonable cause’ appears to us 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. In Quinlivan v Portland Harbour Trust [1963] VR 25 at 28, Sholl J, used these words: ‘The subsection means to refer to a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man.’
What was meant by a ‘reasonable cause’ and ‘a reasonable man’ received some considerable attention by counsel for the respondent in the case before this Tribunal. Although counsel for the respondent did not refer to Black’s case, he referred to a number of decisions which, he argued, established that a ‘reasonable man’ must be determined on the basis of an objective rather than a subjective test. By an ‘objective test’, the Tribunal understood Mr McKay to mean, in the context of his submissions, that no account can be taken of matters which are subjective to the applicant.
In addition to those set out above, counsel for the respondent referred to the cases of Quinlivan v Portland Harbour Trust (supra); Melbourne & Metropolitan Tramways Board v Witton [1963] VR 417 and Cowie v State Electricity Commission of Victoria [1964] VR 788 and Pryse v State Electricity Commission of Victoria [1964] VR 788 in support of his argument. He referred also to decisions of other members of this Tribunal namely, Re VL and Commonwealth (1987) 13 ALD 447; Re Van Gelder and Commonwealth (supra) and Re Connors and Commonwealth (1988) 8 AAR 204. These cases, he argued, take the view that Witton’s case adopts an objective test as opposed to a subjective test as to what is reasonable.
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 & Metropolitan Tramways Board v Witton (supra) and by single judges of the Supreme Court in Quinlivan v Portland Harbour Trust and Cowie v State Electricity Commission of Victoria (supra); 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.” (pages 390-393)
Mr Rose has said that he lodged his claim for compensation because he was unhappy with the delegate who made the reviewable decision regarding his claim for compensation in relation to his sternum injury and unhappy with the medical practitioners’ reference to it. That relates to his current motive but does not relate to his reasons for not making his claim in the six month period after he became aware of his disease.
I have come to the conclusion that he was aware that he could claim compensation for an injury and, indeed, he had done so in 1970 in relation to an injury he received in a shunting accident. I am satisfied on the basis of his own evidence that he had thought that he could not claim for his condition. If regard is had only to this, Mr Rose has made a mistake of law and that is not a mistake within the meaning of s. 16(1)(ii).. On the same basis, I am also satisfied that Mr Rose thought that he could only claim for an injury received in an accident such as he had experienced and in relation to which he had been paid compensation. This could be regarded as a mistake of law or a mixed mistake of law and fact on the basis of the principles set out by Davidson J in Stevenson v Metropolitan Meat Industry Commission (1937) 37 SR (NSW) 109. I also find that Mr Rose did not know that Alcoholism was a disease until he looked the word up in a dictionary and he did that in late 1998. This is a mistake of fact of the sort contemplated by s. 16(1)(ii).. There is no need to consider whether it is a reasonable mistake for there need only be a mistake.
In view of my conclusion, I have decided that Mr Rose’s failure to make a claim within the period specified in s. 16(1) shall not prevent consideration of his claim. If it should be the case that he found out after 1 September, 1971, I find that he knew by 27 September, 1971 when his condition was diagnosed by Dr Pellew. If that is the case, he became aware of it after the commencement of the 1971 Act. My finding as to his having made a mistake for the purposes of s. 16(1)(ii) of the 1930 Act would mean that he has also made a mistake for the purposes of s. 5(6)(c) of the 1971 Act. Therefore, it would follow that Mr Rose’s claim would be deemed to have been served in accordance with s. 54(1).
For the reasons I have given, I:
1.set aside the reviewable decisions dated 4 March, 2002 and 6 September, 2001 and the determination dated 7 June, 2001; and
2.substitute a decision that the applicant is not prevented from making a claim for compensation by reason of his failure to make a claim for compensation within the time specified in s. 16 of the Commonwealth Employees’ Compensation Act 1930 (“1930 Act”) or s. 54 of the Compensation (Commonwealth Government Employees’) Act 1971.
I certify that the sixty-two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: .(sgd. P. Paczkowski)..................….......
P. Paczkowski Associate
Date/s of Hearing 26 May, 2003
Date of Decision 16 December, 2003
For the Applicant Mr D. Bulloch
Solicitor for the Applicant Westside Community Lawyers Inc
For the Respondent Mr S. Cole
Solicitor for the Respondent Sparke Helmore
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