Russell and Military Rehabilitation and Compensation Commission

[2004] AATA 1367

Administrative

Appeals

Tribunal

 

INTELOCUTORY DECISION AND REASONS FOR DECISION [2004] AATA 1367

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.  A2004/133
  )                  A2004/142

GENERAL ADMINISTRATIVE DIVISION		)
Re		DONNA MARIE RUSSELL

Applicant

And   MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

INTELOCUTORY DECISION

Tribunal   Mr J.W. Constance, Senior Member

Date  14 December 2004

Place  Canberra

Decision Notice of the applicant’s claim under section 53 of the Safety, Rehabilitation and Compensation Act 1988  is taken to have been given.

..............................................

CATCHWORDS

COMPENSATION – whether applicant has complied with section 53 of the Act – when injury sustained - injury occurred in 1992 – claim made in 2003 – whether applicant did not notify the relevant authority of her claim due to ignorance, mistake or reasonable cause – applicant did not notify due to ignorance – section 53 notice taken to be given

Safety, Rehabilitation and Compensation Act 1988 – ss 53, 7

Re Frosch and Comcare (2003) 78 ALD 395

Comcare v Luck (1999) FCA 100

Luck and Comcare AAT No 12663 [1998] AATA 125 (27 February 1998)

REASONS FOR DECISION

14 December 2004 Mr J.W. Constance, Senior Member       

FACTS

1. Unless otherwise stated these facts are based on the affidavit of Ms Russell sworn 3 December 2004 and filed in these proceedings.  Ms Russell was not cross-examined on the contents of this affidavit and I accept her as a witness of truth.

2. Ms Russell was born on 5 November 1970 and is 34 years old.

3. In 1990 Ms Russell enrolled in the Royal Australian Navy and attended the Australian Defence Force Academy in Canberra.  As part of the program for new cadets Ms Russell was required to complete several weeks of single service training at HMAS Creswell, during which she was required to reside in living quarters provided by the Navy.

4. In late 1990, probably November, Ms Russell was raped whilst she was in bed in her room at HMAS Creswell.  She was uncertain of the identity of her attacker and did not report the assault.  She believed that the person who raped her was a senior cadet and she did not think she would be believed if she reported the incident.  She thought that if she said anything she would be ridiculed and that “life would be made very difficult” for her at the Academy.

5. In November 1992 Ms Russell was admitted to hospital suffering from depression, stress, trouble sleeping and headaches.  During the course of her treatment Ms Russell informed a counsellor at the Academy that she had been sexually assaulted in 1990 by a male cadet at HMAS Creswell.  At that time Ms Russell was diagnosed by Dr White, psychiatrist, as having post traumatic stress disorder and depression.[1]

   [1]Report 17 November 1992, T19.

6. About late 1992 Ms Russell consulted a lawyer at the Academy concerning the assault.  There is no detailed evidence before me as to the advice Ms Russell received or whether the possibility of a compensation claim was discussed.

7. Between 1992 and 1995 Ms Russell received ongoing counselling and treatment for post traumatic stress disorder and depression.  These services were provided by the Navy.

8. In 1993, Ms Russell sought legal advice from a solicitor in private practice and on his advice made a claim under the Victims’ Compensation legislation in respect of the assault.  This claim was settled without the need for a court hearing.

9. At the end of January 2003, Ms Russell consulted Ms Anne Macdonald, a clinical psychologist specialising in post traumatic stress disorder and with considerable experience in the treatment of victims of sexual assault.  Ms Macdonald’s reports were tendered and she gave oral evidence.  At their first meeting in January 2003 Ms Macdonald advised Ms Russell that she should make a claim for compensation.  Ms Macdonald also gave evidence that Ms Russell had difficulty coping with the preparation of the paperwork necessary to make a claim and that she raised the issue again with Ms Russell in late February and late April of 2003.  Ms Macdonald said that it is common for victims of sexual assault to experience the problems described to her by Ms Russell and which delayed the preparation of the claim documents.  Ms Macdonald expressed the opinion that one of the symptoms of post traumatic stress disorder is for the sufferer to avoid thinking about the traumatic event.  Ms Macdonald further reported that at this time Ms Russell was going through the process of her discharge from the Navy on medical grounds and that this added to her difficulties in lodging the claim any earlier than she did.  I accept Ms Macdonald’s evidence.

10. In paragraph 45 of her affidavit sworn 3 December 2004 and filed in these proceedings Ms Russell stated:

    “Anne Macdonald advised me that I needed to do something further than I already had, to make a claim for compensation, and assisted me with the process. Prior to that I simply presumed that the Defence Force knew about my injuries and their causation. I had reported my injuries in 1992 to Defence psychologists and had been seeing Defence psychologists on and off ever since.  Had I been aware of a need to do anything further and received the assistance I needed to complete the claim I certainly would have.”

I accept this evidence.

1. The claim was lodged with the Department of Veterans’ Affairs on 6 August 2003 or within a few days of that date.[2]

   [2] The claim document is Ex R2.

DATE OF INJURY

1. The issue currently before the Tribunal is whether Ms Russell satisfies the notice provisions in section 53. However, before looking to that section the date of Ms Russell’s injury needs to be determined.

2. The relevant provision of the Safety, Rehabilitation and Compensation Act 1998 is section 7(4) which provides :

   “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 first resulted in the incapacity for work, or impairment of the employee;

   whichever happens first.”

3. Ms Russell was first diagnosed with post traumatic stress disorder in November 1992 and first sought treatment for that disease at the same time.[3]   

   [3] T14, T19.

4. Counsel for the respondent argued that Ms Russell would have suffered impairment before 1992 and that the correct date for the sustaining of the post traumatic stress disorder and depression injury is 1990.  Accordingly it was argued that the time of the injury was the date of the assault.   

5. In the absence of any medical evidence that Ms Russell suffered from post traumatic stress disorder and associated depression prior to her seeking medical treatment in 1992, I reject the respondent’s submission.  The injury in respect of which the claim is made is post traumatic stress disorder and depression, not the assault itself.  I find that, for the purposes of determining the question of the requirements for the giving of notice, Ms Russell sustained the relevant injury in 1992.

THE LAW IN RELATION TO THE FAILURE TO GIVE NOTICE OF INJURY AND ITS APPLICATION TO THE FACTS

1. The Tribunal has jurisdiction to consider the effect of a failure to give notice under section 53 of the Act even though the issue was not addressed in the reviewable decision: Re Frosch and Comcare (2003) 78 ALD 395.

2. Section 53(1) of the Act provides, inter alia:

   “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. Section 53(3) of the Act provides, inter alia:

   “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 this 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.”

4. Ms Russell became aware of her injury in 1992 but did not provide written notice of her claim to the respondent until she lodged her claim form dated 6 August 2003; Comcare v Luck (1999) FCA 100. Clearly Ms Russell did not notify the respondent as soon as practicable. Accordingly, I must decide whether any of the requirements of section 53(3)(c) have been met. In this matter the existence of any one of those requirements is sufficient for a determination to be made that notice shall be taken to have been given.

5. The principles to be taken into account in considering the effect of a failure to give notice in writing are set out in Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535:

   “Although the Act is framed in terms of imposing liability on the Commonwealth and its instrumentalities rather than in terms of its giving to an employee the benefit of compensation, the giving of that benefit may properly be seen as the obverse of the imposition of the liability on the Commonwealth. Consequently the Act should, in our view, be regarded as beneficial legislation. Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act. However, where an appropriate officer of the Commonwealth or the relevant instrumentality is made aware at an appropriate time of the alleged injury or disease and the circumstances in which it was suffered or contracted, the Commissioner and the Tribunal should, we believe, be slow to hold that a claim for compensation for the incapacity resulting from that injury or disease must fail because s 53 has not been complied with to the letter. That is particularly so where, as in the present case, the employee has told the compensation clerk that he or she wishes to claim compensation and has relied on the compensation clerk telling him or her what needs to be done.”

1. On the evidence of Ms Russell set out in paragraph 10 of these reasons I find that prior to Ms Russell was ignorant of the need to give any further notice of her injury other than that which she had already given in November 1992.

2. On the basis of the evidence of Ms Macdonald I find that the disease from which Ms Russell was suffering was the cause for her failure to give notice between late January 2003 and the lodging of her claim in August 2003.  I am satisfied that this amounted to a reasonable cause. 

3. Counsel for Comcare argued that Comcare would be prejudiced if the notice given was taken to be sufficient.  In view of the findings I have made it is not necessary to decide this question.

DECISION

1. Notice of the applicant’s claim shall be taken to have been given under section 53 of the Safety, Rehabilitation and Compensation Act 1988 by the lodging of the applicant’s Claim for Rehabilitation and Compensation on or about 6 August 2003.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .....................................................................................
  Associate (Chelsey Bell)

Date/s of Hearing   3 December 2004
Date of Oral Decision                  3 December 2004
Date of Reasons for Decision     14 December 2004
Counsel for the Applicant           Mr DJC Mossop
Solicitor for the Applicant            Pappas, J - Attorney
Counsel for the Respondent       Mr N Polin
Solicitor for the Respondent       Phillips Fox