Sandercock and Military Rehabilitation and Compensation Commission

[2015] AATA 18

[2015] AATA 18

Division	Veterans' Appeals Division
File Number	2014/0356
Re	Alan Sandercock
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	15 January 2015
Place	Perth

The decision under review is affirmed.

.............................[sgd].........................................

S D Hotop

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant performed National Service in 1958 and 1959 and served in Citizen Air Force and Royal Australian Air Force General Reserves from 1962 to 1970 – applicant exposed to noise from gunfire during service – applicant claimed compensation for hearing loss in 2011 – Tribunal not satisfied that applicant’s hearing loss causally related to service – respondent prejudiced by applicant's failure to give timely notice of hearing loss – applicant's failure to give timely notice of hearing loss and to make claim for compensation within prescribed period not occasioned by mistake, absence from Australia or other reasonable cause – applicant not entitled to compensation for hearing loss – decision under review affirmed

LEGISLATION

Commonwealth Employees' Compensation Act 1930 (Cth), s 4(1), s 4(2), s 9(1), s 10(1) and s 16 Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 123A and s 124

CASES

Black v City of South Melbourne [1963] VR 34

Commonwealth of Australia v Connors (1989) 86 ALR 247
Re Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665

REASONS FOR DECISION

Deputy President S D Hotop

15 January 2015

Introduction

1. Alan Sandercock (“the applicant”) has applied to the Tribunal for review of a “reviewable decision”, dated 9 December 2013, made by a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), whereby it was determined that the respondent is not liable under the SRC Act to pay compensation to the applicant for hearing loss.

   The Evidence

2. The evidence before the Tribunal comprised the “T Documents” (T1–T38, pp 1–142) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:

   ·Exhibits A1–A9 tendered by the applicant;

   ·Exhibits R1–R8 tendered by the respondent; and

   ·the oral evidence of the applicant, Dr Alastair Mackendrick and Professor Terence McManus.

   The Factual Background

3. The following background facts are not in dispute and are found by the Tribunal on the basis of the T Documents.

4. The applicant, who was born in August 1939, performed National Service training in the Australian Army in January/February 1958 and February/March 1959 (T8, pp 39–40).  He subsequently service in the Royal Australian Air Force (“RAAF”) Citizen Air Force from October 1962 to February 1965 and in the RAAF General Reserves from March 1965 to March 1970 (T14).  While in high school, the applicant had been a member of the army cadets in 1955 and 1956 (T3, p 19).

5. On 8 July 2011 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a completed “Claim for Rehabilitation and Compensation” form, signed by him and dated 15 June 2011, whereby he claimed compensation under the SRC Act for “hearing loss” said to have been first sustained by him in 1955 when firing a “303 rifle” on a rifle range during a school cadet camp in Northam without the provision of protective ear muffs (T3, pp 7-13). In an accompanying statement, the applicant stated that he also fired a “303 rifle” and a “Bren, Owen and Vickers machine gun”, without ear protection, during his National Service training in 1958 and 1959, and a “.303rifle” at RAAF Pearce, without ear protection, in the period 1962–1965 (T3, p 19).

6. On 31 January 2012 a delegate of the respondent made a determination under the SRC Act disallowing the applicant’s claim for compensation (T21).

7. On 8 August 2012 a delegate of the respondent made a “reviewable decision” under the SRC Act affirming the abovementioned determination of 31 January 2012 (T25).

8. On 22 July 2013 the Administrative Appeals Tribunal affirmed the abovementioned reviewable decision of 8 August 2012 (T28):  see Re Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517.

9. On 15 August 2013 the applicant lodged with the DVA a further completed “Claim for Rehabilitation and Compensation” form, signed by him and dated 13 August 2013, whereby he claimed compensation under the SRC Act for “noise induced hearing loss” said to have been first sustained by him in May 1955, and further sustained by him in January/February 1958 and January/February 1959 when firing “303 rifle”, “Bren gun”, “Owen gun” and “Vickers machine gun”, without the provision of ear protection, at Army rifle ranges in Northam and Swanbourne (T29, pp 108–115). The applicant attached to that form “new evidence” in support of his claim and indicated in that form that he would provide further evidence in support of his claim (T29, pp 117, 114).

10. By letter dated 29 August 2013 to the applicant, a delegate of the respondent acknowledged receipt of the applicant’s “new claim for compensation in respect of ‘Hearing Loss’ condition” and notified the applicant that “it has been decided that a new claim for this condition is not necessary at this stage” and that, instead, his “new evidence” would be forwarded to a Reconsideration Delegate for consideration (T30).

11. By letter dated 9 December 2013, a delegate of the respondent notified the applicant that he had decided “to Affirm the previous determinations” (T38).

    The Applicant’s Service Medical records

12. The following relevant extracts from the applicant’s service medical records are in evidence.

13. A Record of Medical Examination, dated 4 November 1957, for the purpose of National Service in the Army, contains the following relevant information:

    ·in response to the question, “Have you suffered from deafness or had discharge from either ear?”, the applicant indicated that he had an abscess in his right ear in 1954;

    ·testing of the applicant’s hearing demonstrated normal hearing in each ear at a distance of 20 feet (T8, pp 33–34).

14. A Record of Medical Examination of Recruit, dated 27 August 1962, for the purpose of engagement in the RAAF, contains the following relevant information:

    ·in response to the question, “Have you suffered from deafness or had discharge from either ear?”, the applicant indicated that he had an abscess in his right ear in 1952;

    ·it was further noted as follows:

    “ Otitis Media 1952 – Two weeks saw ENT & no trouble since”;

    ·testing of the applicant’s hearing by “forced whisper” at a distance of 20 feet demonstrated normal hearing in each ear (T8, pp 35–38).

15. A Medical Examination Record, dated 13 December 1964, for the purpose of re-engagement in the RAAF, indicates that a “voice test” of the applicant’s hearing at a distance of 20 feet demonstrated normal hearing in each ear (T8, p 45).

    The Applicant’s Evidence

16. The applicant confirmed that he had prepared various statements and made various statutory declarations for the purpose of this proceeding and that their contents are true and correct.  Those statements and statutory declarations are in evidence (T3, pp 18–24); T19; Exhibits A1, A8, A9).  The contents of those statements and statutory declarations may relevantly be summarised as follows:

    ·he consulted Dr Einihovici, an ENT specialist, in 1954 regarding a serious abscess in his right ear;

    ·while at the school cadet camp at Northam in May 1955 he fired a “303 rifle” under supervision but without the provision of ear protection and his ears “rang & rang with the reverberation from the sound”;

    ·in the course of his National Service training in 1958 and 1959 he fired a “303 rifle” and “Bren, Owen and Vickers machine gun” without the provision of ear protection;

    ·in 1959 he fired a Vickers machine gun as a member of a specialist team of 6–8 persons and “it is likely that [he] would have been exposed to at least one hundred 303 bullets fired in rapid succession” and “the duration of firing was maintained … for much greater than 3 to 3½ minutes”;

    ·he consulted Dr Cuthbert, an ENT specialist, in about 1963 regarding hearing problems he was experiencing as a school teacher in the classroom, but he does not recall any discussion about his having high frequency hearing loss;

    ·he applied to join the Naval Reserve in 1965 and was, for that purpose, “placed in a special chamber and given hearing tests at different frequencies”, after which he was informed that he had “high frequency hearing loss”, resulting in the rejection of his application;

    ·the hearing tests which he had for National Service and the RAAF Reserves were very basic, involving the sound of a whisper or a ticking watch;

    ·in 1974 he consulted Dr Packer, an ENT specialist, and “was placed in a special chamber and was told that [he] had high frequency hearing loss”;

    ·from 1962 to 1997 he was employed by the Education Department of Western Australia as a Teacher, Senior Teacher, Deputy Principal, and Principal, and “at no time during this employment was [he] ever exposed to excessive noise”, nor has he been “exposed to excessive noise since retirement from teaching” in 1997.

17. As regards his failure to give notice of, and his delay in claiming compensation for, his hearing loss, the applicant’s explanation was provided in the following statements:

    ·in his statement of 25 June 2011 (T3, p 18) the applicant explained that he had not reported the incident involving hearing loss in the cadets in 1955 because he was “not of sufficient expertise to realize the necessity of doing so”, and, in the period 1955-2011, because he had “only recently realized that there is a mechanism for this and also the possibility of some acknowledgement by the Dept of Defence and Veterans Affairs which then may lead to some assistance and compensation”;

    ·in his statement of 13 March 2014 (Exhibit A8) and his statement of 27 November 2014 (Exhibit A9) the applicant explained that, “from 1962 to 2011”, he had mistakenly believed that his hearing problems were due to the abscess (otitis media) which he had in his right ear in “1953/1954”, and that “at no stage was [he] ignorant of procedures of reporting in the Army”, and that, after becoming aware of the results of an audiogram in 2011, consulting Dr Haydn Dyer on 6 April 2011, and receiving a letter from Colonel Leonard Brennan, Director, Army Health, dated 27 April 2011, he “promptly” made a claim for compensation on 15 June 2011.

18. In cross-examination, the applicant was referred to the transcript of the oral evidence which he gave at the hearing of his previous application before the Tribunal on 18 June 2013 (Exhibit R1).  It was put to the applicant that, in his evidence on that occasion, he had said that, when he saw Dr Packer, “there was never any discussion of high frequency hearing loss”.  The applicant said that that was his recollection at the time when he gave that evidence.  The applicant said that he had since discovered a Health Summary document in the clinical records of Dr N Palmer (his previous general practitioner), which were in his possession, which indicated that he was suffering from “bilateral high tone perceptive deafness” in 1974 and which referred to Dr Packer (T29, p 117).  He acknowledged that his present evidence, to the effect that Dr Packer had told him in 1974 that he had high frequency hearing loss (see paragraph 16 above), was partly informed by his seeing that Health Summary document, but he added:

    “The more I thought about it, I then remembered.”

19. The applicant was also referred to clinical notes of Dr Palmer covering the period from May 1977 to September 1999 (Exhibit R4), and he acknowledged that the only references to consultations relating to his ears in that period were on 26 January 1978 (which referred to “blocked ears”) and on 12 July 1985 (which referred to “discomfort (R) ear” and “wax (R) ear”).

    Recent Medical Evidence

    Ms Bev Eintracht

20. Ms Eintracht, Audiologist, made the following report, dated 28 March 2011, to Dr H Dyer regarding an audiological assessment of the applicant on that date:

    “ Mr Sandercock was seen at the Lions Hearing Clinic in Mt Lawley for audiological assessment.  Please find attached a copy of the results.

    Mr Sandercock reported that he has experienced hearing loss for most of his life, having been involved in cadets during school, with no ear protection having been provided.  He reported that on several occasions his ears would be ringing following a shooting session, but this would resolve itself after a while.  He reportedly has not suffered from ear infections.  His father and paternal uncle both reportedly suffered from hearing loss, but they were both involved in noisy occupations and he feels this could have contributed to their hearing loss.  He has noticed difficulty hearing in certain listening situations, particularly in the presence of background noise.  He reported that his family have been concerned about his hearing.

    Otoscopic examination was clear bilaterally.  Tympanometry results indicated a Type A tympanogram consistent with normal middle ear pressure and compliance bilaterally.

    Pure tone audiometry indicated a mild to severe sensorineural hearing loss bilaterally.

    Speech audiometry indicated excellent discrimination bilaterally when speech was presented at appropriately amplified levels.

    SUMMARY:  Mr Sandercock presents with a bilateral mild to severe sloping sensorineural hearing loss. …

    …”  (T3, p 16)

21. Ms Eintracht provided a report, dated 14 November 2011, to the respondent, regarding an audiological assessment of the applicant on that date, as follows:

    “ Mr Sandercock was seen at the Lions Hearing Clinic in Mt Lawley for audiological assessment.  Please find attached a copy of the results.

    Mr Sandercock reported that he has experienced hearing loss for many years, having been involved in cadets whilst still in school.  He remembers that his ears would be ringing on several occasions following a shooting session, but this would resolve itself after a while.  He has not reportedly suffered from any ear infections.

    He is now experiencing increasing difficulty hearing in various listening situations, in particular if there is any noise around him.  His family have begun to complain about his hearing.  He is experiencing a lot of difficulty hearing the sermon at church, as well as after the service, and he also has difficulty hearing on the telephone, and watching television at home.

    Mr Sandercock reported experiencing very mild tinnitus not present every day.

    Otoscopic examination was clear in the left ear and revealed non-occluding wax in the right ear.  Tympanometry results indicated normal middle ear compliance bilaterally.

    Pure tone audiometry indicated a mild to profound steeply sloping high frequency sensorineural hearing loss bilaterally.

    Speech audiometry indicated excellent speech discrimination bilaterally at appropriate levels of amplification.

    Mr Sandercock present with a mild to profound steeply sloping high frequency sensorineural hearing loss bilaterally. …

    …”  (T15, pp 56–57)

    Dr Haydn Dyer

22. Dr Dyer, General Practitioner, wrote the following letter, dated 6 April 2011, to the Director, Army Health on behalf of the applicant:

    “ This man has severe sensorial [sic] hearing loss (see attached audiogram), which has progressively impaired his life.  This is particularly unfortunate as he is a top class pianist.

    His troubles date from 1955-56, as a school cadet at Northam range he fired 303 rifles without hearing protection on at least 4 occasions.  Each time he would be left with 4-6 days tinnitus & deafness.

    I can verify this as I was in his group & suffered in the same way, as did at least two others from Eastern Goldfields High School.

    Would you please advise if Mr Sandercock has any recourse.”  (T3, p 15)

    Colonel Leonard Brennan

23. Colonel Brennan, Director, Army Health, wrote the following letter, dated 27 April 2011, to the applicant:

    “ I am in receipt of correspondence from Dr Haydn Dyer dated 6^th April 2011 detailing the hearing loss incurred during your time as a cadet at the Eastern Goldfields High School in Western Australia.  I note the period of exposure dates back to 1955 and that your participation on the Northam Range can be verified.

    Dr Dyer requested I advise if you have any recourse resulting from your severe sensorial hearing loss.  I recommend you take advice from the Department of Veterans’ Affairs (DVA) with regard to your eligibility under the Commonwealth Employees’ Rehabilitation [sic] Act 1930 (replaced by the Compensation [Commonwealth Government Employees] Act 1971 and again by the Safety, Rehabilitation and Compensation Act 1988).

    …”  (T3, p 14)

24. Colonel Brennan wrote a letter, dated 7 May 2013, to the applicant as follows:

    “ As discussed, there is not a simple process to determine the minimum percentage of hearing loss based on recruiting standards in the 1960s and 70s.

    The more formal audiometry assessments were not introduced until 1978 and my response is based on these standards.  I have used a book on Quantifying Disabilities and Impairments that dates from the 1970s and endorsed by the US Committee on Rating of Mental and Physical Impairment.  In particular, table 1 conversion of estimated hearing level for speech to a percentage of monoaural hearing impairment [sic].

    The Army recruiting standard for hearing in the worst ear was 35, 35 and 35 decibels (dB) for the three frequencies 500, 1000 and 2000 Hertz (Hz).  Using table 1 above, (and assuming that the audiometer was appropriately calibrated) the Decibel Sum of Hearing Levels (DSHL) is 105 which converts to 15.0 from the table.  Therefore the approximate maximum percentage hearing loss in their worst ear, for a successful applicant would be 15%.”  (T27)

25. Colonel Brennan wrote a letter, dated 16 August 2013, to the applicant as follows:

    “ Thank you for providing an update on the outcome of your recent appeal to the Administrative Appeals Tribunal.  I have read the case report with interest and note that whilst they acknowledged your endeavours there appeared to be multiple issues and not just the issue as to whether you had been exposed to sufficient noise to induce a permanent hearing loss.

    In terms of your request for specific information on the noise exposure associated with various types of rifles and the types of range practices that would have been conducted in the late 1950s and early 1960s during your military service, I am unable to specifically answer those questions due to the passage of time.

    I have identified and enclosed two references that you may find of assistance; Criteria for assessing hearing damage risk from impulse-noise exposure from 1967 and A review of the nature and problem of impulse noise damage to soldiers hearing and its prevention from 1976.  The former report provides specific data on the peak level (dB) at various distances from the firer for a variety of military rounds used during the period including .303 (Flag A).  I highlight to you that there is a technical difference between impulse noise and continuous noise exposure.  The noise from a gun shot round has a duration measured in milliseconds and it would be eronous [sic] to attempt to summate in order to reach a 3.5 minute duration.  It would however be reasonable to work on your impulse exposure to be repeatly [sic] in the vicinity of 160 dB if you were not wearing hearing protection.

    My quick reading of the articles suggest that a single exposure of 160 dB is unlikely to cause temporary hearing shift in most people, and that repeated exposures (50 rounds) would cause a temporary hearing shift in 25-50% of people.  Whilst I believe you may be able to establish, on the balance of probabilities that your exposure will have resulted in a temporary hearing shift, it will be difficult to argue that it caused a permanent hearing loss.”  (Exhibit A3)

    Dr Geoffrey Hee

1. Dr Hee, Otolaryngologist, wrote a letter, dated 27 November 2012, regarding the applicant to Dr Stephen Boehm as follows:

   “ Thank you for referring Mr Sandercock back to see me.  He has moderate to severe high frequency sensorineural hearing loss bilaterally in keeping with a combination of noise trauma and presbyacusis.  Fortunately, he copes reasonably well with his hearing level and does not find the tinnitus too intrusive.  I have discussed the prospect of using hearing aids in the past, but he remains disinterested in this.

   Examination today was again unremarkable, apart from some wax debris bilaterally.  He was unable to tolerate suction-ear-toilet.

   I think noise exposure during Mr Sandercock’s time in national service has contributed to his hearing loss.  He may have had some pre-existing hearing loss from noise exposure when he discharged firearms without hearing protection whilst in the school cadets.  The further exposure to firearms during his service in the army probably aggravated or accelerated this hearing loss.  It is difficult to ascertain what proportion of his hearing loss is attributed to noise trauma and what proportion is due to the ageing process or genetic predisposition.  I have read Professor Terry McManus’ report and do not agree that Mr Sandercock’s hearing loss is entirely related to the ageing process.”  (T32, p 122)

2. Dr Hee wrote a further letter, dated 14 February 2013, regarding the applicant to Dr Boehm as follows:

   “ I reviewed Alan with regards to his hearing loss.  Although I think his hearing loss is likely related to a combination of noise trauma and presbyacusis, it is not possible to attribute the proportion that is due to the former.  I appreciate this can undermine his application for compensation.  I would agreed [sic] that noise induced hearing loss is unlikely to progress once the subject is removed from the  noisy environment, however, it is also true that the hearing loss sustained is unlikely to recover.  Unfortunately, I have very little else to offer him at this stage.”  (T26)

3. Although Dr Hee was not called as a witness in the present proceeding, he did give oral evidence (by telephone) at the hearing of the previous Tribunal proceeding on 18 June 2013.  In a transcript of that hearing, Dr Hee’s evidence, in cross-examination by the respondent, is recorded as follows:

   “ MR DUBE:   Good afternoon, Dr Hee?---Hello.

   Can you hear me?---Yes.

   Doctor, do you agree that in assessing whether or not someone has suffered from noise-induced hearing loss you need to know the extent of the exposure?  So both in relation to time of exposure or duration of exposure, and also the noise of the exposure?---Sure.  Yes, that’s reasonable.

   Yes.  And is it correct that in terms of the two generally-accepted causes of noise-induced hearing loss, is either prolonged exposure for a long period of time?---Yes.

   Or an exposure to an explosive type noise?---Yes.

   Okay?---So severe intensity for a short duration can also cause injury.

   Yes.  What was your understanding of the history that was given in respect to the exposure to firearms during school cadets?---He fired some weapons, some guns, without any hearing protection, that’s what he advised me.  And there was also a charge that was detonated when he was aged 12, and he suffered some tinnitus after that incident.

   Right?---That’s what I have in my medical records.

   Okay.  So fired some – so you don’t have any history of the duration or frequency of the firearm discharging during the cadets?---No, I don’t have that detail.

   Okay.  And, similarly, you don’t have any detail of the frequency or length of exposure to firearms in national service?---No.

   And so in essence you’re saying, well, look, if someone is shooting guns and if they have some hearing loss which seems to have some relationship to noise exposure, then, you know, you could say, well, look, if we can’t find anything else we’ll say it’s related to that experience?---Well, he had a significant noise exposure in the sense that he described having some tinnitus after exposure to a charge that was detonated at aged 12.  He wasn’t able to recall, I don’t think, the details of that so I don’t have the details of that.  But he recalls having tinnitus at the time, so there must have been no doubt, I would imagine, a significant noise trauma.  I think that was in the cadets.  In terms of his exposure in the national service, he described discharging a machine gun and having some hearing loss and not being able to hear his supervisor.

   Yes.  Now, just in relation to that, the charge that he was exposed to, you said at the age of 12?---M’mm.

   Mr Sandercock was born in 1931, so we’re talking about 1951.

   MR SANDERCOCK:   I was not born in ’31.

   MR DUBE:   ’39, sorry, 1939.  So we’re talking about exposure in 1951 at the age of 12?---That’s what he advised me.

   Yes.  Okay.  And you relate that to being a cause of the hearing loss?---It’s possible.

   Right.  And then just in relation to the reported history of firing a machine gun and then experiencing some reduced hearing afterwards, Professor McManus has already given some evidence today.  Are you familiar with Professor McManus?---Yes.

   Yes.  I understand he might have taught you at some stage?---Yes.

   Yes.  He said that there’s two different- you can have a temporary loss of hearing from exposure to a, for instance, a machine gun firing but that may not result in permanent damage and generally it would recover within one to two days?---Yes, I would agree with that.

   Yes.  Okay.  So in terms of that reporting of a sensation of reduced hearing after firing a machine gun, that could have been a temporary reduction in hearing with no ongoing difficulties?---Yes.

   Yes.  Okay.  And do you agree, Doctor, that one of the difficulties in terms of us, or you, in 2012 trying to identify whether or not something that is said to have happened in the 1950s, is that unless you have an audiogram conducted before and an audiogram conducted after the exposure - - -?---Yes.

   - - - it’s very difficult to, with any great degree of reliability, identify what the cause is?---Sure.

   All right.  Thank you, Doctor, I’ve got no further questions.”  (Exhibit R1, pp 43–45)

   The Evidence of the Medical Witnesses

   Dr Alastair Mackendrick

4. Dr Mackendrick confirmed that he is a specialist ear, nose and throat practitioner and that he had prepared a report, dated 29 April 2014, regarding the applicant.  That report, which is addressed to Dr S Boehm, states as follows:

   “ Thanks for asking me to see this patient.  He suffers from significant hearing difficulties.  He has been aware of having difficulties with his hearing for a number of years.  Between 1962 and 1965, he was a school teacher and teaching music and at that time, was aware of some difficulties with his hearing and also some distortion of sound.  In 1965, he attempted to join the Naval Reserves and was told on the routine testing then that he had a high-tone hearing loss in both ears.  In about 1973, he noted he was having problems discriminating conversation in the classroom and saw Dr Peter Packer at that time and he also confirmed that he had a high-tone sensorineural loss.

   Mr Sandercock does give a history of exposure to noise in the Army Cadets in 1955.  He was exposed to rifle fire at that time and immediately after the exposure, noted he had tinnitus.  In 1958, he did Army National Service and was exposed to extreme noise of the Vickers machine gun. He reports that he had extreme tinnitus for some time after that exposure.  This in itself indicates there must have been some damage at the time.  There is no other history of noise exposure during his lifetime.  There is no family history of deafness.

   On examination, his ears look perfectly normal with no sign of scarring of the eardrums.  He showed me his last 2 hearing tests which were in March and November of 2011.  The tests were quite similar and showed hearing to be normal in the very low frequencies but a marked drop-off in into [sic] the high frequencies to a severe loss.  The configuration of the audiogram is certainly consistent with the history of noise exposure.  There is nothing else in his history to suggest a cause for this loss.  Using standard tables in accordance with NAL Report 118 1988 after deduction of 6.2% of the loss due to presbycusis or the ageing process, he is left with 23.4% of loss due to noise damage.  The configuration of the loss is typical of noise damage.  In the absence of any history of noise exposure other than when he was exposed to gunfire during his cadets and machine gunfire when he did his National Service, these can be put down to the cause of his loss.

   It is my experience having dealt with many of the Veterans from the first and second World Wars, who have slowly developed severe hearing loss over many years after exposure to gunfire during the war and no other exposure, the hearing does continue to deteriorate long after the exposure.  The same has happened in the case of Mr Sandercock.

   He will need to wear hearing aids for the rest of his life.”  (Exhibit A7)

5. Dr Mackendrick elaborated on the penultimate paragraph of his report.  He said that, in his experience, people who have suffered damage to their hearing from noise exposure experience a higher or accelerated rate of deterioration of their hearing caused by the ageing process.

6. In cross-examination Dr Mackendrick confirmed that his opinion regarding the causation of the applicant’s hearing loss was based on the history given to him by the applicant regarding his exposure to rifle fire and the firing of the Vickers machine-gun during his National Service.  He acknowledged, however, that he was not aware of the details regarding the frequency and duration of the applicant’s exposure to the firing of those weapons.  He also said that, in his experience, permanent hearing loss can result from exposure to the sound of gunfire – even from exposure to the sound of a single loud gunshot.  He expressed the opinion that acoustic trauma or acoustic shock may be caused by exposure to the sound of gunfire.

7. Dr Mackendrick was also asked to comment on the significance of an incident when the applicant was exposed to the sound of an exploding detonator cap when he was 12 years old.  Dr Mackendrick agreed that that incident would also have been a contributing factor in the applicant’s noise-induced hearing loss.

   Professor Terence McManus

8. Professor McManus, Consultant Otolaryngologist, confirmed that he had prepared four reports regarding the applicant, dated 26 January 2012, 18 November 2013, 15 April 2014 and 18 June 2014.  He confirmed that he adhered to the contents of each of those reports.  He also confirmed that he had reviewed a transcript of his oral evidence at the hearing of the previous Tribunal proceeding on 18 June 2013 and that he adhered to that evidence.

9. Professor McManus’ report of 26 January 2012, which is addressed to the DVA and is based on his assessment of the applicant on 11 January 2012, concludes as follows:

   “ …

   ASSESSMENT AND SUMMARY:

   Diagnosis:

   Bilateral high tone sensorineural hearing impairment.

   Causation:

   Presbycusis.

   Compensable Loss:

   Nil.

   COMMENT:

   Mr Sandercock reported his experience firing .303 rifles on the rifle range whilst in School Cadets, at age 14 or 15.  He complained of tinnitus following this exposure to noise and was of the firm opinion that this experience caused his subsequent hearing impairment.

   The pattern of hearing loss identified in Mr Sandercock’s audiogram is not indicative of acoustic trauma and I have explained to him that hearing loss caused by exposure to excessive noise does not progress after cessation of exposure to noise.  Mr Sandercock’s hearing assessment carried out on enlistment in the armed services showed he had normal hearing and any subsequent loss of hearing cannot be a result of his experience on the rifle range as a schoolboy.

   …”  (T20, pp 69–73)

   In an accompanying questionnaire form, Professor McManus indicated that, in his opinion, the applicant’s service in the Australian Defence Force made no contribution to the causation or aggravation of the applicant’s hearing loss condition (T20, pp 74-76).

10. In response to a request from the DVA, Professor McManus provided a supplementary report, dated 18 November 2013, which states as follows:

    “ Thank you for your letter dated 28 October 2013 requesting my review of my original assessment in light of new evidence.  I have reviewed my previous report, together with the details in the file provided.  I note a highlighted comment in the Health Summary Report, dated 1974, which states ‘Bilateral high tone perceptive deafness’.  (P Packer).  This report was dated 15 August 2013 [sic].

    I presume it is the note in 1974 of high tone perceptive loss attributed to Dr Peter Packer that has initiated a request for supplementary report.

    In my opinion the comment attributed to Dr Peter Packer, high tone perceptive deafness, does not alter the view contained in my previous report.  The statement contained in the health report – ‘1974 – bilateral high tone perceptive deafness’ does not indicate the hearing impairment was a result of exposure to excessive noise causing noise induced hearing loss.  As noted in my previous report, Mr Sandercock’s medical examination on discharge from the Military services indicated he had normal hearing in both ears.

    On the information provided, I find no evidence to suggest that his complaints of hearing impairment have resulted from his Military services.

    …”  (T37)

11. At the request of the respondent’s solicitors, Professor McManus provided a further supplementary report, dated 15 April 2014, which states as follows:

    “ Thank you for your letter of 26 March 2014 requesting clarification of my earlier reports on Mr Sandercock.  I have reviewed the file notes on Mr Sandercock together with my previous reports.

    Mr Sandercock’s medical examination carried out at RAAF base, Pearce on 13 December 1964 (a few months prior to discharge) indicated normal hearing in both ears.

    Therefore, in response to your specific questions listed under item 6.1, I advise that my findings reported in my report of 18 November 2013 paragraph 3, should read:

    ‘As noted in my previous report, Mr Sandercock’s hearing assessment carried out on enlistment in the armed services showed he had normal hearing.  Further to this Mr Sandercock’s medical examination on 13 December 1964, shortly before his discharge, indicated he had normal hearing in both ears.’

    In summary, Mr Sandercock had normal hearing on entry to the military services and medical assessment shortly before discharge reported normal hearing.

    The report from Peter Packer (1974 – 10 years after discharge) indicated hearing impairment that was not indicative of noise induced hearing loss.

    …”  (part of Exhibit R6)

12. At the request of the respondent’s solicitors, Professor McManus provided a further report, dated 18 June 2014, which states as follows:

    “ …

    5.Please review Dr MacKendrick’s [sic] report dated 29 April 2014 and Mr Sandercock’s letter dated 8 May 2014, and advise whether in the light of these documents, you consider there are any aspects of your reports which you wish to alter, and if yes, please advise of the alterations to be made.

    I have noted Dr MacKendrick’s report and refer specifically to the last paragraph in his report dated 29 April 2014.

    ‘… who have slowly developed a severe hearing loss over many years after exposure to gunfire during the war and no other exposure, the hearing continues to deteriorate long after the exposure’ [sic].

    I note that Dr MacKendrick does not state that the progressive hearing loss which occurred after exposure to gunfire during the war was noise induced hearing loss.  If this has been implied, it is incorrect.  There is no evidence in scientific otological publications that noise induced hearing loss does progress after cessation of exposure to excessive noise.  I note that Dr MacKendrick’s report does not specifically state that the progressive hearing loss he has observed was caused by noise induced hearing loss.  The hearing loss he described that has occurred after cessation of exposure to noise is undoubtedly due to other reasons, the most common being the aging process, presbycusis.

    However, I think this comment is irrelevant as the Medical Examination records provided (Mr [sic] MacKendrick may not have been privy to this information) clearly show that Mr Sandercock’s hearing tests were normal on entrance to the Military Services and more importantly was also normal shortly prior to discharge from the Military Services.  For this reason one cannot make a claim that his subsequent hearing loss has resulted from his Military Services with exposure to excessive noise.

    I have noted Mr Sandercock’s concerns about the quantum of hearing loss as measured by hearing tests carried out at Lions Hearing Clinic on 28 March 2011 and again in November 2011.  Calculation of the percentage binaural loss of hearing varies by approximately 8%.  In my opinion this is more likely to represent variations in the testing procedures during hearing assessment rather than genuine increased loss of hearing.

    I also draw attention to the report dated 14 November 2011 from the Lions Hearing Clinic, Bev Eintracht, Audiologist.  The report includes ‘Mr Sandercock reported experiencing very mild tinnitus not present every day’.

    As indicated above I have found no evidence to indicate his hearing impairment has resulted from exposure to excessive noise during his Military Service.  For this reason any tinnitus that he may now experience cannot be a result of his military experience.

    I suspect Dr MacKendrick was unaware of medical records showing Mr Sandercock’s hearing was normal on enlistment in the military and again normal on discharge from the military.

    Therefore there are no aspects of my previous reports that require alteration.

    …”  (original emphasis) (part of Exhibit R7)

13. Professor McManus’ oral evidence (by telephone) at the previous Tribunal hearing on 18 June 2013 included the following:

    “ MR DUBE:

    …

    Just one question, Professor.  You have been provided with some more recently [sic] reports of a Mr Geoffrey Hee?---Yes, I have both those reports of his which I have in front of me now.

    And do the contents of those reports cause you to change any of your opinions expressed in your report of 26 January 2012?---No.  There is some disagreement.  If you note in Mr Hee’s letter dated 27 – I’m just looking at it right now – his letter dated 27 November 2012, he reports, the last sentence I read, ‘Professor McManus’ report – do not agree that Mr Sandercock’s hearing loss is entirely related to the aging process.’  And we have this dispute obviously between his opinion and mine.

    …

    WITNESS:   Now, you were asking me about Dr Hee’s report.

    MR DUBE:   Yes, and whether anything expressed in his reports caused you to change your opinion?---No, not at all.  In fact, I disagree with his views.  I think, to be fair, he was probably unaware of some of the details regarding this patient.  And I say that because if you have his report dated the 27th in front of you, on the last paragraph he has made the comment about his national service contribution.

    Yes?---And I think that, with respect, he wouldn’t know what was involved in national service at that time.  He wouldn’t know what level of noise he was exposed to.  And, similarly, the second section was school cadets, and he would not be aware of the level of noise that he would have been exposed to during school cadets.  And the final one was he thought it aggravated his hearing loss.  Well, he attributes his symptoms to noise exposure during school cadets, and that would have been early 1950s.  He then subsequently had full medicals, including hearing tests, before going into national service.  And that hearing was normal.  Therefore, any symptoms he has now could not have been a result of his military experience during school cadets, because noise-induced hearing loss and tinnitus resulting from acoustic trauma does not progress after cessation of exposure.  Does that make it clear?

    Yes.  It might be suggested to you that perhaps the method of testing the hearing loss in the late 1950s by conducting what we understand to be called a forced whisper test might - - -?---That is true but at the same time Mr Sandercock told me when I saw him in consultation that he only noted his symptoms five or six years previously.

    Right?---That’s what my notes have recorded.

    Well, I’m sure Mr Sandercock will tell you if he’s got a different view?---Yes.  Well, the level of noise to which he was exposed during school cadets is very unlikely to have been a factor.  And if it had, he would have had these symptoms from that date.  And similarly with his noise exposure during his national service.  I say this with some experience because I am roughly the same age as Mr Sandercock, and like him I spent time in school cadets firing .303 rifles, and also did national service in the same intake as he did.  So I am familiar with the levels of noise to which we were exposed.

    Right?---Now, any noise damage that may have occurred at that time does not progress after cessation of noise.

    The final question I had for you, Professor, was in your report on the final page where you have the comment, you say, ‘The pattern of hearing loss identified is not indicative of acoustic trauma.’  Could you just explain what you mean by that?---Okay.  Acoustic trauma which causes noise-induced hearing loss occurs primarily at a frequency of 4,000 cycles per second.  And so you get normal hearing in the lower frequencies, and then you start to get a dip at 4,000 cycles, but that picks up again to more normal levels at 6,000 and 8,000 cycles.  So when you look at the actual audiogram you see a little dip maximal at 4,000, reverting back to a more normal level above that.

    Right?---As you continue with progressive noise exposure causing damage, that dip at 4,000 cycles becomes deeper and slightly broader.  But you always have a recovery to some degree in the higher frequencies above 4,000.  So the pattern, when you look at his audiograms, it is not the pattern that we would normally associate with acoustic trauma.

    Right.  And so you would attribute it more so to what?---Age.

    Right?---It’s something called presbycusis.  In the same way that as you get older the eyes start to deteriorate and your arms get shorter, and your hearing deteriorates in a similar fashion.  There’s always significant variation in a population, but the changes due to age are called presbycusis.

    Right.  Thank you, Professor.  I don’t have any further questions but I think Mr Sandercock has some for you?---Okay. 

    SENIOR MEMBER:   Thanks, Mr Dube.  Mr Sandercock, over to you to ask Professor McManus some questions.

    …

    MR SANDERCOCK:   Yes.  I’m going to move onto a few other quick questions?---Yes.

    Bearing in mind that anything in life is possible to some extent, and that probability is not all range of possible events, would you say it is possible that I did have high-frequency hearing loss by firing a .303 rifle in the cadets?---I think it’s highly unlikely but all things in life are possible, you’re quite correct.

    Thank you?---But I think it’s highly unlikely.

    …

    MR SANDERCOCK:   And I will cut down the number of questions.  Is it possible that I could have had aggravation and acceleration and a reoccurrence of that injury, is it possible, in national service?---Sorry, is it possible for what?  In national service?

    Yes, high-frequency hearing loss, is it possible?---I suppose all things are possible;  it’s highly unlikely.

    …

    MR SANDERCOCK:   But bearing in mind also Dr Hee’s letter - - -?---Yes.

    - - - you still don’t think that it’s probable, do you?---No.

    Thank you.  And even considering if you believed that I attended the navy interview, if you believed that, where they told me that I had the loss, do you even think that it’s probable then?---I’m sorry, I missed the point of the question.  I didn’t hear.  You attended a naval, did you say?

    Yes, a navy interview?---Yes.

    And they told me that I had high-frequency hearing loss?---Well, I’ve had no knowledge of that.  There’s no records provided to me - - -

    No?--- - - - of any interview with the navy or of any hearing test that may have been done.

    But I told you that in the interview.  There’s no record but I told you?---I’m sorry, I do not recall that.  It was some time since I saw you.

    Yes?---It was last year sometime, I think.  Sorry, I do not have your notes in front me.

    No, that’s fine?---And I can’t recall it.  But you would have to provide evidence of hearing tests carried out at the time.

    Yes?---I wouldn’t put too much importance on what an interviewer commented to you unless it was done on the basis of studying expert audiograms carried out at the time.

    …

    SENIOR MEMBER:   I think we haven’t quite finished yet, Professor McManus?---Okay. 

    Are you still there?---All right. 

    All right.  Thank you.  Mr Dube has just indicated he doesn’t want to ask you any more questions.  But can I just ask you a question, myself?---Yes.

    Now, you’ve said that you attended national service - - -?---Yes.

    - - - at the same time as Mr Sandercock?---Yes.

    Now, Mr Sandercock gave us some evidence this morning in which he said that the people on national service training were divided into groups and that he was put in a group which was trained in the use of Vickers machine guns?---Yes.

    Can you recall which group you went into and what sort of weaponry you were trained in?---Boy, you are asking questions, aren’t you?  This goes back to when we were - - -

    I am?---Yes, this goes back 50 years.

    I know?---I think, and I could be wrong, but I think I was in C company, infantry.  We fired Bren guns, machine guns, and rifles and other various things but, boy, I don’t recall details of over 50 years ago.

    That’s okay?---I’d love to have the ability to do that but I’m afraid my memory isn’t that good.

    Well, I was really using you, Professor McManus, because Mr Sandercock also couldn’t recall much from those days?---No.

    And I was hoping that you might have a recollection of how often you did weapons training in the weeks of your national service?---Well, we were in national service for three months, and I spent two years in the CMF where you attend weekly parades and annual camps.  During the three-month national service I could not tell you with any accuracy the number of times we were on the rifle range but I would have thought it was probably no more than six or seven.  But, look, I’m sorry I just do not recall, but I know we did have exposure to automatic weapons as well as .303 rifles.

    All right.  I think I won’t test anybody’s memory any further but I did want to check with you in case you had some recollection while we still had you on the line?---Right.

    There’s one last technical question I would like to ask you?---Yes.  Yes.

    And that is that after you’ve fired either a .303 rifle - - -?---Yes.

    - - - or a Bren gun - - -?---Yes.

    - - - how long does the short-term hearing loss continue?  And you can put it - - -?---It varies significantly in any population group, but you initially, if you’re exposed to acoustic trauma, you initially experience a temporary threshold shift.  And you’re asking how long is temporary, and it’s normally a matter of days.  And I would have expected most to have fully recovered.  If it was just one exposure then it should have recovered within a week - - -

    Thank you?--- - - - but probably even less than that.

    All right.  I have seen figures from the National Acoustic Centre - - -?---Yes.  Yes.

    - - - which suggested between 24 and 48 hours - - -?---Yes, well, that’s probably right, yes.

    - - - would be a period for any damage to the cells in the inner ear, the hair cells in the inner ear?---Yes.  You get a temporary threshold shift, in other words, a temporary loss of hearing.

    All right?---And that generally is, you know, a matter of days.

    Thank you.  And in terms of the hearing loss or the damage to the - - -?

    ---Cochlear, yes.

    Yes, the cochlear, the evidence is that, remove the noise and the damage does not continue?---That is quite correct.  After you have ceased exposure to damaging noise, then the damage does not progress.

    Right.  Can the hair cells in the cochlear actually recover if the damage is not prolonged for any period of time?---Yes, they do.  It recovers so the hearing returns to normal;  that’s why it’s called a temporary threshold shift.  In other words, a temporary loss of hearing in the high-pitched noises.  But it then recovers back to normal but only if you’re exposed to persistent noise in an industrial setting, that’s years of exposure, five days a week, eight hours a day - - -

    So when - - -?--- - - - that you then – yes?

    Yes, carry on, sorry?---That you then convert what is a temporary threshold shift into a permanent threshold shift or deafness.  But that’s the typical form of industrial deafness.  Now, the other form of acoustic trauma is the explosion, you’re blown up in a bomb blast.  And that can be permanent but that, you know, it occurs at the time and it never recovers.

    Right.  And in your view could the exposure which you experienced during your national service, could that have reached the level requires for acoustic trauma in the sense that you have just described it?---Do you mean permanent acoustic trauma?

    Yes, I mean permanent damage?---No.  Yes, no, the level of noise experienced on a rifle range firing those weapons to which we referred, is nowhere near the level required to cause permanent loss from one exposure to noise.  No, nowhere near it.

    …”  (Exhibit R1, pp 31–40)

1. In his oral evidence at the hearing of this proceeding, Professor McManus said (inter alia):

   ·an audiogram is required in order to demonstrate the presence of high frequency hearing loss;

   ·high frequency sensorineural hearing loss is “not indicative of noise”;

   ·“there are lots and lots of causes of nerve deafness but the most common cause is ageing”;

   ·in 1965 (when the applicant was in his mid 20s) presbycusis would not have been a factor in relation to hearing loss in his case;

   ·the audiogram regarding the applicant’s hearing in November 2011 is “a typical audiogram of someone with presbycusis”;

   ·the “forced whisper” hearing tests which were administered to the applicant during his military service would have detected a significant hearing loss but would not have detected a “mild” hearing loss and may not have detected a “moderate” hearing loss;

   ·if the applicant had a significant level of high frequency hearing loss at that time, that would have been detected by the “forced whisper” tests, but he may have had a lower level of high frequency hearing loss at that time which the “forced whisper” tests failed to detect;

   ·he agreed with Dr Mackendrick’s opinion (as expressed in the latter’s report of 29 April 2014) that the configuration of hearing loss, as demonstrated in the audiograms regarding the applicant’s hearing in 2011, is “typical of noise damage”;

   ·the applicant may have had noise-induced hearing loss by the mid-1960s but it would have been at a much lower level than that demonstrated by the 2011 audiograms;

   ·the applicant “may well have” sustained some hearing loss as a result of his exposure to gunfire noise in the course of his military service but his present severe level of hearing loss is not due to such noise exposure.

   The Relevant Legislation

2. Pursuant to ss 14(1) and 147(1) of the SRC Act, the respondent is liable to pay compensation in accordance with that Act “in respect of an injury suffered by [the applicant] if the injury results in death, incapacity for work, or impairment”.

3. Part X of the SRC Act contains transitional provisions dealing with the application of that Act to injuries suffered before the date of commencement of that Act (namely, 1 December 1988), including the following relevant provisions:

   “ 123A     Injuries suffered before the commencing day

   A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.”

   “ 124       Application of Act to pre-existing injuries

   (1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

   (1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

   (2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

   (a)where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act;

   (b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or

   (c)in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.

   …”

   The phrase “commencing day” is defined in s 123 to mean “the day on which this Part commences” – namely, 1 December 1988.  The phrases “the 1912 Act”, “the 1930 Act” and “the 1971 Act” are defined in s 4(1) as follows:

   “ the 1912 Act means the Commonwealth Workmen’s Compensation Act 1912.

   the 1930 Act means the Commonwealth Employees’ Compensation Act 1930.

   the 1971 Act means the Compensation (Commonwealth Government Employees) Act 1971.”

4. It is common ground that the Commonwealth Employees’ Compensation Act 1930 (Cth) (“the 1930 Act”) is also relevant in this case. In s 4(1) of that Act the following relevant definitions appeared:

   “ ‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;”

   “ ‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;”

   “ ‘employee’ means –

   …

   (d)     a member of the Defence Force to and in relation to whom this Act applies;”.

   Section 4(2) provided:

   “ In the application of the provisions of this Act to and in relation to an employee to whom section ten of this Act applies, any reference in those provisions to personal injury by accident arising out of or in the course of an employee’s employment by the Commonwealth shall be read as including a reference to a disease due to the nature of the employment in which the first-mentioned employee was engaged by the Commonwealth.”

   Sections 9 and 10 relevantly provided:

   “9(1)       If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.”

   “10(1)     Where –

   (a)an employee is suffering from a disease and is thereby incapacitated for work; or

   (b)the death of an employee is caused by a disease,

   and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.:

   Section 16 relevantly provided:

   “16(1)     The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –

   (a)within six months from the occurrence of the accident; or

   (b)in the case of death – within six months after advice of the death has been received by the claimant:

   Provided always that –

   (i)the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that they want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and

   (ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.

   …

   (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)notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1) of this section if notice of the contracting of the disease was served on the Commissioner -

   (i)in the case of a claim arising out of the death of the employee caused by the disease – as soon as practicable after his death; or

   (ii)in any other case – as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, as soon as practicable after his death;

   (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)   in the case of a claim arising out of the death of the employee caused by the disease – within six months after advice of the death was received by the claimant; or

   (ii)  in any other case – within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death;

   …”

   The Issues

5. The ultimate matter for the Tribunal’s determination is whether the respondent is liable, pursuant to ss 14(1) and 147(1) of the SRC Act, to pay compensation, in accordance with that Act, to the applicant in respect of a hearing loss condition. Pursuant to s 124(1A), (2) of the SRC Act, the applicant will be entitled to compensation under that Act in respect of a hearing loss condition suffered before 1 December 1988 if compensation would have been payable to him in respect of such condition under (relevantly) the 1930 Act.

6. As regards the matter of whether the applicant would have been entitled to compensation in respect of a hearing loss condition under the 1930 Act, the issues which arise for determination are:

   ·the date on which, or the period in which, the applicant sustained a hearing loss condition;

   ·whether the applicant’s hearing loss condition constitutes an “injury” or a “disease”, as defined in s 4(1) of the 1930 Act;

   ·whether the applicant’s hearing loss condition constitutes a “personal injury by accident arising out of or in the course of his employment by the Commonwealth”, within the meaning of s 9(1) of the 1930 Act;

   ·if the applicant’s hearing loss condition constitutes a “disease”, whether s 10(1) of the 1930 Act applies in relation to him;

   ·whether s 16 of the 1930 Act would have operated to prevent the consideration of the applicant’s claim for compensation in respect of a hearing loss condition.

   Analysis

   The applicant’s hearing loss condition

7. It is common ground that the applicant suffers from a hearing loss condition, and, on the basis of the relevant medical evidence before it – namely, the audiological assessments (audiograms) performed by Ms Eintracht in March and November 2011 (see paragraphs 20–21 above), Dr Dyer’s letter of 6 April 2011 (see paragraph 22 above), Dr Hee’s letter of 27 November 2012 (see paragraph 26) above), Professor McManus’ report of 26 January 2012 (see paragraph 34 above), and Dr Mackendrick’s report of 29 April 2014 (see paragraph 29 above) – the Tribunal so finds.

8. On the basis of the abovementioned letter of Dr Hee and report of Professor McManus, the Tribunal finds that the appropriate diagnosis or description of the applicant’s hearing loss condition is “bilateral high frequency sensorineural hearing loss” (“the hearing loss condition”).

9. Having regard to the evidence before the Tribunal, however, the date on which, or the period in which, the applicant sustained the hearing loss condition is, to say the least, very problematic.

10. According to the evidence before the Tribunal, there were four periods in which the applicant’s hearing may have been adversely affected by exposure to noise, namely:

    ·an incident in 1951 when the applicant (who was then 12 years old) was involved in the detonation of a charge (see the evidence of Dr Hee at the hearing of the previous Tribunal proceeding in June 2013, set out in paragraph 28 above);

    ·the discharging of a .303 rifle at a high school army cadet camp in May 1955;

    ·the discharging of a .303 rifle, Bren gun, Owen gun and Vickers machine-gun during National Service in January/February 1958 and February/March 1959 (see the applicant’s evidence referred to in paragraph 16 above); and

    ·the discharging of a .303 rifle at RAAF Pearce in the period 1962–1965.

11. The applicant’s service medical records, covering the period from November 1957 to December 1964, contain no reference to hearing loss and, on the contrary, contain records of medical examinations which indicated that (inter alia) his hearing was normal in both ears (see paragraphs 13–15 above).

12. According to the applicant’s evidence, the first occasion on which he sought medical advice regarding a hearing problem was in 1963 when he consulted Dr Cuthbert.  The applicant’s evidence about that consultation, however, is unspecific and merely refers to his not recalling any discussion about high frequency hearing loss (see paragraph 16 above).

13. According to the applicant’s evidence, the first occasion on which he was informed that he had high frequency hearing loss was in 1965 following a series of tests which he underwent in connection with his application to join the Naval Reserve.  There is, however, no contemporaneous medical documentation in evidence regarding such tests or the state of the applicant’s hearing at that time.

14. The earliest documentary medical record of the applicant’s suffering high frequency hearing loss, which is in evidence before the Tribunal, is a Health Summary document, dated May 1977, which was included in the clinical records of his former general practitioner, Dr N Palmer, and which referred to “Bilat. High Tone perceptive deafness” in 1974 (see paragraph 18 above).  The clinical notes of Dr Palmer covering the period from May 1977 to September 1999, which are in evidence, however, do not contain any reference to the applicant’s suffering hearing loss (see paragraph 19 above).

15. It may be, as acknowledged by Professor McManus, that the applicant sustained some hearing loss as a result of his exposure to gunfire noise in the course of his National Service, which was not detected by the crude “forced whisper” tests which were administered to him in his service medical examinations.  However, in the absence of any contemporaneous medical evidence confirming that the applicant suffered hearing loss, tinnitus or any other hearing problem during his National Service, the Tribunal is not satisfied, on the balance of probabilities, that he did so.

16. The Tribunal is, nevertheless, prepared to accept, on the basis of the applicant’s evidence, that he was experiencing hearing difficulties in 1963 and that he was informed in 1965, following audiometric testing in connection with his application to join the Naval Reserve, that he had high frequency hearing loss.

17. The Tribunal is, however, unable, having regard to the absence of contemporaneous relevant medical evidence, to determine when, or even approximately when, the applicant initially sustained that hearing loss; nor is the Tribunal able to determine the degree of hearing loss then suffered by the applicant.

    Does the hearing loss condition constitute an “injury” or a “disease”, as defined in s 4(1) of the 1930 Act?

18. The hearing loss condition is either an “injury” or a “disease”, as defined in s 4(1) of the 1930 Act.  The Tribunal, however, is unable, having regard to the medical evidence before it, to determine which of those two statutorily-defined terms more appropriately describes the hearing loss condition.  Accordingly, the Tribunal will consider each of those two alternatives in the analysis which follows.

    Does the hearing loss condition constitute a “personal injury by accident arising out of or in the course of [the applicant’s] employment by the Commonwealth”, within the meaning of s 9(1) of the 1930 Act?

19. As mentioned in paragraph 48 above, the evidence before the Tribunal indicates that there were four periods in which incidents occurred which may have adversely affected the applicant’s hearing by exposure to noise. The first two of those periods (namely, 1951 when the detonation incident occurred, and May 1955 when the discharging of the .303 rifle at a high school army cadet camp occurred), however, occurred before the commencement of the applicant’s service in the Defence Force in January 1958 – that is, before he became an “employee” and before the commencement of his “employment by the Commonwealth”, within the meaning of s 9(1) of the 1930 Act. The third and fourth periods (namely, January/February 1958 and February/March 1959, and 1962–1965, when the discharging of various firearms occurred during his National Service and his service with the Citizen Air Force), on the other hand, did occur in the course of the applicant’s service in the Defence Force when he was an “employee” and in the “employment of the Commonwealth”, within the meaning of s 9(1) of the 1930 Act.

20. Dr Hee and Dr Mackendrick have each expressed the opinion that the applicant’s exposure to the noise of gunfire during his National Service was a contributing factor in his suffering the hearing loss condition.  The Tribunal, however, has substantial reservations regarding the validity of that opinion for the following reasons:

    ·both Dr Hee and Dr Mackendrick acknowledged that they did not take a detailed history from the applicant regarding the frequency and duration of that gunfire;

    ·Dr Hee (in his oral evidence at the hearing of the previous Tribunal proceeding on 18 June 2013) agreed with Professor McManus that exposure to the noise of gunfire (including machine-gunfire) may result in a temporary loss of hearing for 1–2 days, rather than permanent loss of hearing;

    ·Dr Hee also agreed with the proposition that, in the absence of an audiogram conducted before and after exposure to noise, it is very difficult reliably to identify that noise exposure as the cause of subsequent hearing loss;

    ·Dr Mackendrick acknowledged that his opinion was based on the history given to him by the applicant – a history which, according to his report of 29 April 2014, included the applicant’s experiencing “extreme tinnitus for some time” after exposure to the noise of the Vickers machine-gun, but which (the Tribunal notes) is not substantiated by the applicant’s service medical records.

21. For the above reasons, the Tribunal attaches limited weight to the opinion of Dr Hee and Dr Mackendrick that the applicant’s exposure to the noise of gunfire during his National Service was a contributing factor in his suffering the hearing loss condition.

22. Notwithstanding the abovementioned opinion of Dr Hee and Dr Mackendrick, the Tribunal, in the absence of audiograms testing the applicant’s hearing both immediately before the commencement of, and immediately after the completion of, his National Service, cannot be satisfied, on the balance of probabilities, that he suffered hearing loss as a result of that service.  It may be, furthermore, that the applicant had previously suffered hearing loss in the pre-service incidents in 1951 and 1955 referred to in paragraphs 48 and 57 above.  In that event, the Tribunal, in the absence of contemporaneous audiograms as abovementioned, likewise cannot be satisfied, on the balance of probabilities, that any pre-existing hearing loss experienced by the applicant was aggravated as a result of his service.  The Tribunal prefers the opinion of Professor McManus, which he expressed in his oral evidence, that the applicant may have sustained some hearing loss as a result of his exposure to noise in the course of his military service but that his present severe level of hearing loss (as demonstrated in the audiograms of March and November 2011) is not due to such noise exposure.  Having regard to the evidence before it, the Tribunal is left in the position where it is unable to be satisfied, on the balance of probabilities, that the hearing loss condition arose out of or in the course of the applicant’s National Service in January/February 1958 and February/March 1959.

23. For the sake of completeness, the Tribunal notes that it is likewise not satisfied, having regard to the evidence before it, that the hearing loss condition arose out of or in the course of the applicant’s service in the Citizen Air Force or the  RAAF General Reserves from October 1962 to March 1970.

1. Accordingly, the Tribunal is not satisfied that the hearing loss condition constitutes a “personal injury by accident arising out of or in the course of [the applicant’s] employment by the Commonwealth”, within the meaning of s 9(1) of the 1930 Act.

   Does s 10(1) of the 1930 Act apply in relation to the applicant?

2. On the assumption that the hearing loss condition constitutes a “disease”, as defined in s 4(1) of the 1930 Act, the question whether s 10(1) of the 1930 Act applies in relation to the applicant arises.

3. Section 10(1) of the 1930 Act applies where (relevantly) “an employee is suffering from a disease and is thereby incapacitated for work”. There being no medical evidence before the Tribunal that the applicant was, at any material time, incapacitated for work by reason of the hearing loss condition, the Tribunal is satisfied, and finds, that s 10(1) of the 1930 Act does not apply in relation to the applicant.

   Would s 16 of the 1930 Act have operated to prevent consideration of the applicant’s claim for compensation in respect of the hearing loss condition?

4. Although, in the light of the foregoing analysis, it is unnecessary for the Tribunal to address this question, it will do so in deference to the parties’ submissions and for the sake of completeness.

5. There can be no dispute that the applicant did not comply with the timeliness requirements prescribed by s 16(1) or s 16(4) of the 1930 Act. Specifically, the hearing loss condition was (as the Tribunal has found) sustained by the applicant at some time prior to 1965, and the applicant did not, at any time, serve notice thereof on the Commissioner for Employees’ Compensation (or any successor thereof), and did not make a claim for compensation in respect thereof until 8 July 2011 when he lodged a claim for compensation under the SRC Act for “hearing loss” with the DVA. In those circumstances the question arises as to whether the proviso in s 16(1) of the 1930 Act is satisfied such that consideration of the applicant’s claim for compensation in respect of the hearing loss condition is not prevented by the applicant’s failure to give such notice and by his failure to make a claim for compensation within the 6-month period prescribed by s 16(1) or s 16(4) of that Act.

6. The Tribunal accepts the respondent’s submission that, given the very lengthy passage of time, it has been prejudiced by the applicant’s failure to give notice of the hearing loss condition before he “voluntarily left the employment of the Commonwealth” (within the meaning of s 16(1) of the 1930 Act), or indeed at any time before 8 July 2011. The applicant did not dispute that submission.

7. The critical question which arises for the purposes of s 16(1) of the 1930 Act, therefore, is whether the applicant’s failure to give notice of his sustaining the hearing loss condition “as soon as practicable …” and before he “voluntarily left the employment of the Commonwealth”, and his failure to make a claim for compensation in respect of that condition within the prescribed 6-month period, were “occasioned by mistake, absence from Australia or other reasonable cause”, within the meaning of the proviso in s 16(1) of the 1930 Act.

8. The applicant submitted that, in the period from 1962 to 2011, he had mistakenly believed that his hearing problems were due to the abscess (otitis media) which he had in his right ear in “1953/1954” and that, after becoming aware of the results of an audiogram in 2011 and consulting Dr Dyer on 6 April 2011 (see paragraph 22 above) and receiving a letter from Colonel Brennan, Director, Army Health, dated 27 April 2011 (see paragraph 23 above), he took reasonable action in promptly making a claim for compensation on 15 June 2011.

9. The interpretation of the proviso in s 16(1) of the 1930 Act was considered by the Federal Court of Australia (Full Court) in Commonwealth of Australia v Connors (1989) 86 ALR 247. In that case Northrop and Ryan JJ said (at 250, 251–252):

   “ … The words ‘mistake ... or reasonable cause’ or ‘mistake or other reasonable cause’ have been considered in many authorities; see for example Murray v Baxter [1914] 18 CLR 62; Shotts Iron Co Ltd v Fordyce [1930] AC 503 and Black v South Melbourne [1963] VR 34. From the authorities it is clear that in this context the word ‘mistake’ includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other "reasonable cause’. …

   …

   …  As was said in Black's case (at 37): ‘... 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.’

   …

   … In order to come within the provisos to s 16(1), it is necessary that the want of giving notice and the want of making the claim ‘was occasioned by mistake ... or other reasonable cause’ (emphasis added). The findings of fact do no more than support a conclusion that he was ignorant, that is, that he did not know of his right to make a claim for compensation. Of course it followed from that conclusion that he was ignorant also of the requirements of giving notice and of making a claim within the times prescribed in s 16(1). The failure to give the notice and the failure to make the claim, on these findings, was occasioned by ignorance. Ignorance, in the sense we have used it as signifying failure to advert to the existence of the right cannot of itself constitute ‘reasonable cause’ under the 1930 Act.

   As was said by the Court in Black's case (at 38), when considering ‘reasonable cause’: ‘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 sub-section 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.”’

   Applying that test, it is clear on the findings made that the only reason for the failure to give the notice and to make a claim was ignorance of the law. That does not constitute ‘reasonable cause’.”

   In Black’s case the Supreme Court of Victoria (Full Court) cited Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 114 and expressed agreement with the view of Sholl J in that case that:

   “ … what has to be shown is that the failure to give the statutory notice within six months was occasioned by mistake or reasonable cause.  Delay after that period has expired is irrelevant for this purpose, though it may in some cases be relevant to the question of prejudice, …”  (original emphasis)

   See also Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at 672 (citing Murray v Baxter (1914) 18 CLR 622).

10. The Tribunal notes that the explanation provided by the applicant for his failure to give notice of, and his delay in claiming compensation for, his hearing loss, for the purpose of his claim for compensation in July 2011 (the subject of the former Tribunal proceeding in 2013), was substantially different from the explanation which he provided for the purpose of the present Tribunal proceeding (see paragraph 17 above). The Tribunal notes that, in the former Tribunal proceeding, it was determined that the applicant’s explanation involved “ignorance of the law” and did not constitute “mistake” within the meaning of the proviso in s 16(1) of the 1930 Act: see [2013] AATA 517 at [44]–[46].

11. In his explanation for his failure to give notice of, and his delay in claiming compensation for, his hearing loss, for the purpose of the present proceeding, the applicant departed from his earlier explanation, stating that “at no stage was [he] ignorant of procedures of reporting in the Army”.  Instead, the applicant explained that, “from 1962 to 2011”, he had mistakenly believed that his hearing problems were due to the abscess (otitis media) in his right ear (which he suffered in 1952) and that, after becoming aware of the results of an audiogram in 2011, consulting Dr Dyer on 6 April 2011 and receiving a letter from the Director, Army Health, dated 27 April 2011, he “promptly” made a claim for compensation on 15 June 2011 (which, the Tribunal notes, was lodged with the DVA on 8 July 2011).

12. The Tribunal has some difficulties with that explanation.  In the Tribunal’s opinion, the applicant’s claim that, “from 1962 to 2011”, he had believed that his hearing problems were due to the abscess (otitis media) in his right ear in 1952 is implausible, given that:

    ·in the record of his medical examination for the RAAF, dated 27 August 1962, it was noted as follows:

    “ Otitis Media 1952 – Two weeks saw ENT & no trouble since” (see paragraph 14 above);

    ·the abscess (otitis media) in 1952 affected only his right ear, whereas his subsequent hearing problems were bilateral.

    In the Tribunal’s opinion, a more plausible (and more likely) explanation is that, although the applicant was experiencing some hearing loss in the early-to-mid 1960s, he did not initially advert to the cause thereof, perhaps because, in the early years, his hearing loss was not significant or troublesome; but that, because his hearing problems had significantly increased in recent years (as a result of presbycusis), he consulted his general practitioner, Dr Dyer, and then adverted to possible service-related causes of his hearing loss (which Ms Eintracht, on the basis of an audiogram of 28 March 2011, described as “mild to severe”), following which he lodged a claim for compensation with the DVA on 8 July 2011.

13. In terms of the proviso in s 16(1) of the 1930 Act, the Tribunal is not satisfied that the applicant’s failure to give notice of his sustaining the hearing loss condition “as soon as practicable …” and before he “voluntarily left the employment of the Commonwealth”, and his failure to make a claim for compensation in respect of that condition within the prescribed 6-month period, were “occasioned by mistake, absence from Australia or other reasonable cause”.

14. As regards the applicant’s failure to give timely notice of his sustaining the hearing loss condition, the Tribunal regards the explanation formerly provided by the applicant in his statement of 25 June 2011 (see paragraph 17 above), namely, that, in effect, he was ignorant of the statutory requirement to do so, as plausible, and it accepts that explanation as true. The Tribunal, however, does not accept the applicant’s assertion, in his statements of 13 March 2014 and 27 November 2014 (see paragraph 17 above), that “at no stage was [he] ignorant of procedures of reporting in the Army”. The Tribunal is satisfied that, for the remainder of his military service, the applicant remained ignorant of that statutory requirement or, at least, did not advert to it. The Tribunal is also satisfied that the applicant did not, at that time, advert to the cause of his hearing loss. The Tribunal finds, therefore, that the applicant’s failure to give timely notice of his sustaining the hearing loss condition was, at all material times, entirely due to ignorance in the sense that he failed to advert to the cause of his hearing loss or to the statutory requirement to give timely notice of his sustaining hearing loss. Accordingly, the Tribunal is not satisfied that the applicant’s failure to give timely notice of his sustaining the hearing loss condition was “occasioned by mistake, … or other reasonable cause”, within the meaning of the proviso in s 16(1) of the 1930 Act. It is common ground that there was not, at any material time, “absence from Australia”, within the meaning of that proviso, on the part of the applicant.

15. As regards the applicant’s failure to make a timely claim for compensation in respect of the hearing loss condition, the question is whether failure to make such a claim within the statutorily-prescribed period of six months was likewise “occasioned by mistake, absence from Australia or other reasonable cause”. On the evidence before it, the Tribunal is unable to make a precise finding as to the date from which that 6-month period commenced. The best that the Tribunal can do, having regard to the evidence before it, is to regard that period as commencing in 1965 when (as the Tribunal has found) the applicant first became aware (at an interview regarding his application to join the Naval Reserve in that year) that he was suffering from the hearing loss condition. In the Tribunal’s opinion, the applicant’s failure to make a claim for compensation in respect of the hearing loss condition within the period of six months after he first became aware in 1965 that he was suffering from that condition was entirely due to ignorance in the sense that he failed to advert to the cause of that condition or to his entitlement to make a claim for compensation in respect of it at that time. Accordingly, the Tribunal is not satisfied that the applicant’s failure to make a claim for compensation in respect of the hearing loss condition within the period of six months after he first became aware in 1965 that he was suffering from that condition was “occasioned by mistake, … or other reasonable cause”, within the meaning of the proviso in s 16(1) of the 1930 Act. As previously mentioned, it is common ground that there was not, at any material time, “absence from Australia”, within the meaning of that proviso, on the part of the applicant.

16. The Tribunal concludes, therefore, that s 16 of the 1930 Act would have operated to prevent consideration of the applicant’s claim for compensation in respect of the hearing loss condition.

    Conclusion

17. The Tribunal concludes that compensation would not have been payable to the applicant in respect of the hearing loss condition under the 1930 Act because:

    ·the hearing loss condition is not a “personal injury by accident arising out of or in the course of [the applicant’s] employment by the Commonwealth”, within the meaning of s 9(1) of the 1930 Act;

    ·on the assumption that the hearing loss condition is a “disease” (as defined in s 4(1) of the 1930 Act), s 10(1) of that Act does not apply in relation to the applicant; and

    ·in any event, s 16 of the 1930 Act would have operated to prevent consideration of the applicant’s claim for compensation in respect of the hearing loss condition.

18. It follows, pursuant to s 124(2) of the SRC Act, that the applicant is not entitled to compensation under that Act in respect of the hearing loss condition, and the Tribunal so determines.

    Decision

19. For the above reasons, the decision under review is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

...............[sgd D Brodie]...................................................

Administrative Assistant

Dated 15 January 2015

Dates of hearing	26, 27 November 2014
Applicant	In person (unrepresented)
Counsel for the Respondent	Mr B Dube
Solicitors for the Respondent	Australian Government Solicitor