Slender and Comcare
[2003] AATA 325
•8 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 325
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/784
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN GRAHAM SLENDER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger - Senior Member Date8 April 2003
PlaceSydney
Decision
The Administrative Appeals Tribunal affirms the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs dated 6 February 2001 (T8) as affirmed by the Manager Reconsideration of that Service dated 5 July 2001 (T13), who held that pursuant to section 16 of the Commonwealth Employees’ Compensation Act 1930 – 1956, compensation was not payable to Mr John Graham Slender because a notice of the accident was not provided within six months of the accident, and the failure to make the claim could not be held to have been occasioned by mistake, absence from Australia or other reasonable cause. Further the Commonwealth was prejudiced.
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
Compensation - veteran - claim under 1930 Act - 40 years later – whether mistake – whether prejudice to the Commonwealth absence from Australia or other reasonable cause - decision affirmed
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 - 1956 - ss 12(1), 16(1)
Safety, Rehabilitation and Compensation Act 1988 - ss 123A, 124
Veterans’ Entitlements Act 1986 - s 119(1)CASE LAW
Re Willis v Australian Telecommunications Commission (1989) 19 ALD 665
Commonwealth of Australia v Connors (1989) 86 ALR 247
Telstra Corporation Limited v Roycroft (1997) 77 FCR 358
Secretary of the Department of Veterans’ Affairs v Studdert [2001] FCA 1642
Re Loft v Comcare (1996) 52 ALD 606REASONS FOR DECISION
8 April 2003 Ms G Ettinger – Senior Member 1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”), was the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs dated 6 February 2001 (T8) as affirmed by the Manager Reconsideration of that Service dated 5 July 2001 (T13), who referred to section 16 of the Commonwealth Employees’ Compensation Act 1930 – 1956, (“the 1930 Act”), and stated as follows in relation to a claim by Mr John Graham Slender, the Applicant in these proceedings:
“Pursuant to section 16 of the 1930 Act, compensation was not payable unless a notice of the accident was provided within 6 months of the accident, unless the failure to make the claim was occasioned by mistake, absence from Australia or other reasonable cause and the Commonwealth was not prejudiced.
...
I have been provided with no evidence as to whether the failure to report the accident was occasioned by mistake, absence from Australia or other reasonable cause and therefore I cannot make any finding in that regard. I note that you were advised that by the time you completed your National Service you were already suffering slight hearing loss and yet no claim was made at that time.
Therefore in summary I am not satisfied that there is sufficient evidence to overcome the barrier caused by section 16 of the 1930 Act. …”
2. The Applicant was self represented, and the Respondent, Comcare, was represented by Mr G Johnson of counsel, briefed by the Australian Government Solicitor.
ISSUE BEFORE THE TRIBUNAL
3. Mr Slender was interested in receiving hearing aids as he has hearing loss which he now considers arose as a result of being exposed to excessive noise during his National Service which he served between 1956 and 1958.
4. However the Tribunal had, as a threshold issue, to decide whether Mr Slender could meet the tests in section 16 of the Commonwealth Employees’ Compensation Act 1930 – 1956.
5. Mr Johnson submitted that the Respondent was prepared to put its argument regarding liability as well, but as Mr Slender was unrepresented, and had not been briefed as to the implications of this, and in view of the reviewable decision having dealt only with the section 16 issues, I decided this Hearing would be restricted to the preliminary threshold issue.
LEGISLATIVE CONTEXT
6. The relevant legislation in this matter is the Commonwealth Employees’ Compensation Act 1930 – 1956 (“the 1930 Act”), in particular sections 12(1) and 16(1) which follow as relevant:
“12.(1) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column.
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 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 the 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.
(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
(3) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.”
7. I was mindful also that for Mr Slender to be able to claim entitlement for compensation, I had to consider the transitional provisions pursuant to sections 123A and 124 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”). However on this occasion, I dealt only with the threshold issue pursuant to section 16 of the 1930 Act.
“PART X - TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS AND REPEALS
Division 1 - Preliminary
…
SECT 123A
Injuries suffered before the commencing day
123A. 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.
Division 2 - Transitional provisions
SECT 124
Application of Act to pre-existing injuries
124. (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.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act-under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case-under the 1971 Act as in force when the impairment or death occurred.
(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a) where the impairment or death occurred before the commencement of the 1930 Act-the 1912 Act;
(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-the 1930 Act as in force when the impairment or death occurred; or
(c)in any other case-the 1971 Act as in force when the impairment or death occurred.
…”
EVIDENCE BEFORE THE TRIBUNAL
8. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“the T-documents”) as Exhibit R1 and the following other documents.
·The Statement of the Applicant dated 26 November 2002 was before the Tribunal as Exhibit A1.
·Mr Slender’s Army Medical Records were Exhibit A2.
·Reports of Dr Pohl were Exhibit A3
·The Respondent’s Amended Statement of Facts and Contentions dated 18 December 2002 was Exhibit R2.
EVIDENCE AND SUBMISSIONS OF MR JOHN GRAHAM SLENDER – THE APPLICANT
9. Mr Slender whose date of birth was 14 April 1936, gave oral evidence before the Tribunal. Exhibit A1 was a handwritten statement of the Applicant. As Mr Slender was unrepresented, I was content to receive both evidence and submissions from him at the same time.
10. I noted that Mr Raymond served on National Service from January 1956 to June 1958, and with the Citizens Military Forces (“CMF”), for the following two years, to 30 June 1960.
11. Mr Slender told me that he did three months basic training and was in the Royal Australian Engineers. There he was subjected to serious noise he said, working on bridge building, jack hammering, hearing explosives including hand grenades and rifle and machine gun fire. Mr Slender said that at the time he did not realise what effect these loud noises had on his hearing, and commented that diseases like asbestosis and hearing loss took many years to develop.
12. Mr Slender told me that after discharge in 1960, he worked in local government as a clerk and an engineering officer until his retirement due to ill health (diabetes), in 1987.
13. The Applicant was most annoyed that he had not been told of a 25 percent hearing loss measured and recorded on his Army entry medical examination carried out on 21 October 1955 (PT6/17). He said that accordingly the noises he incurred during his National Service may not have caused his hearing loss, but had aggravated it. Mr Slender does not have hearing aids and the purpose of his application he said, was to make a claim to the Commonwealth for these.
14. Mr Slender told me that he suffered hearing loss, had his first operation on his right ear in 1965, and the second on his left ear in 1978. He recounted further visits to medical specialists in 1989 and 1998, saying that at the latter visit, the doctor had told him he had nerve damage which was not amenable to treatment. He was also most annoyed that Dr Pohl associated his hearing loss with his diabetes.
15. Mr Slender said that he did not make a claim when he realised in 1958 that he had a hearing loss because he was not aware of the legislation. This was corroborated at PT9/21, in a statement of the Applicant. Mr Slender said that in his time in the Army he was not told about any rights to compensation. Mr Slender said that he only found out some four to five years ago from a pension officer of the RSL that he could claim, and did not do so until 2001 when his hearing deteriorated badly. He said that he had to resign from an RSL sub-branch committee as a result of his hearing.
16. The Applicant also said that for a long time he did not associate his hearing loss with his Army service.
17. When the implications of section 16 of the 1930 Act were explained to him, Mr Slender retorted by saying that at the time the Act was written no one would have known how long deafness took to develop.
SUBMISSIONS AND CONCLUSIONS
18. I had to take into account all the evidence, both written and oral, submissions of the parties, legislation and case law to make the correct and preferable decision regarding whether Mr Slender satisfies the tests in section 16(1) of the 1930 Act. For the Applicant to succeed, I had to be satisfied to the requisite standard that the Respondent is not prejudiced by the failure of the Applicant to notify any accident as soon as practicable after it occurred, and before Mr Slender voluntarily left the employ of the Commonwealth (section 16(1)(a) of the 1930 Act). I had further to consider that as he did not make a compensation claim within six months of the occurrence of any injury, whether that failure to do so was occasioned by mistake, absence from Australia or other reasonable cause (section 16(1)(i) of the 1930 Act). I noted that absence from Australia was not relevant to Mr Slender’s case, but the other indicia required examination.
19. There was no disagreement between the parties, and I accepted that Mr Slender, whose date of birth is 14 April 1936, served his country on National Service between 1956 and June 1958 and in the CMF between 1958 and 1960.
20. I am happy to put on record that I found Mr Slender to be a witness of truth, and noted that Mr Johnson did not express a contrary view.
21. I moved then to consider Slender’s claim in the context of the 1930 Act, noting that provided he was successful in meeting the tests in section 16(1) of the 1930 Act, then to be successful as regards liability, he had to also satisfy the transitional provisions, section 123A and 124 of the Safety, Rehabilitation and Compensation Act 1988.
22. I noted Mr Slender’s submissions that:
· he was not told that his entry medical examination in 1955 disclosed hearing loss until he received the documents approximately four years ago, and he was angry that the Army had not advised him accordingly at the time;
· he did not at first associate the aggravation of his hearing loss with the exposure to loud noises he experienced during National Service (as detailed in his oral and written evidence (Exhibit A1);
· he was not given any information about claiming compensation while he was involved in National Service;
· he did not find out about claiming compensation until four to five years ago, and had joined the RSL in 1990; he did not think of claiming compensation until his hearing loss worsened;
23. Mr Johnson in referring to section 16(1) of the 1930 Act, submitted that the Act specified that “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”. He submitted further, that the claim for compensation had to be made within six months from the occurrence of the accident, unless mistake, absence from Australia or other reasonable cause could be shown, noting also a consideration of prejudice to the Commonwealth was relevant.
24. I turned then to consider whether there was prejudice to the Commonwealth pursuant to section 16(1) of the 1930 Act if the discretion to admit a claim for compensation by Mr Slender should be made.
25. In doing so, I was mindful that prima facie time limits are specified in legislation so that matters can be attended to in a timely manner and to ensure that documentation is intact and witnesses available as necessary.
26. Mr Slender did not make submissions with regard to any possible prejudice to the Commonwealth. Mr Johnson submitted that some prejudice to the Commonwealth arose with regard to the fact Mr Slender did not notify his injury rather than through the failure to make a claim. He submitted that the state of Mr Slender’s hearing in the period from 1958 – 1960 could not now be assessed, as there was no documentation available (T7). I was mindful that the issue of paucity of documentation often arises in this Tribunal in matters relating to periods in the past. As Mr Slender was in the Army and claims to have been injured during that service, I was entitled to give consideration to that issue taking into account section 119 of the Veterans’ Entitlements Act 1986. Section 119 in summary states that the decision maker is not bound by technicalities, and shall act according to substantial justice and the substantial merits of the case, and take into account difficulties engendered by the passage of time and deficiency in records. Having considered the above, I accepted Mr Johnson’s submission, agreeing that some prejudice would be experienced by the Commonwealth were it required to assess a claim based on the state of Mr Slender’s hearing loss, as claimed, between 1958 and 1960 because it was not now possible to assess the extent of hearing loss in that period.
27. That however would not be the end of it, as in consequence of Mr Slender not notifying the Army of any injury within the six months specified, and in fact making a claim some 40 years later, I was entitled to consider any mitigating circumstances such as mistake, absence from Australia or other reasonable cause with regard to the failure to notify injury or make a claim. As Mr Slender was not absent from Australia, I had only to consider mistake or other reasonable cause.
28. In that regard Mr Johnson referred to Mr Slender’s request for reconsideration of the Respondent’s decision (T9), and his oral evidence at the Hearing, submitting that the Applicant admitted he was aware he had suffered additional hearing loss by 1958. Mr Johnson referred to Mr Slender’s reply in cross-examination that he did not claim compensation because he was ignorant of his rights in that regard, noting that this was his state of mind at the time of making the claim.
29. I noted in addition, Mr Slender’s statement that he did not at first associate his hearing loss with his activities in National Service, and his understanding that conditions such as asbestosis and hearing loss took a long time to develop.
30. Mr Johnson then referred to a line of cases relevant to this area including Commonwealth of Australia v Connors (1989) 86 ALR 247, Secretary of the Department of Veterans’ Affairs v Studdert [2001] FCA 1642 and Telstra Corporation v Roycroft (1997) 77 FCR 358.
31. With regard to Connors (supra), I noted that in Mr Connors’ case, his ignorance of his rights was held to be insufficient as a ground to establish mistake pursuant to section 16(1) of the 1930 Act. I noted their Honours Northrop and Ryan JJ in Connors (supra), who stated at 250 that:
“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”.
32. Mr Johnson submitted correctly that Connors (supra) stood for the proposition that ignorance alone would not suffice in regard to reasonable cause, and that if the Veteran did not know his rights under the legislation that was also insufficient to satisfy “reasonable cause” in section 16(1)(ii) of the 1930 Act. I noted from Mr Slender’s evidence that he can be said to have been ignorant of the law and his compensation rights, rather than that he made a mistake about it.
33. I was mindful also of Mr Johnson’s reference to Telstra Corporation v Roycroft (supra) where I noted that North J in referring to various authorities, stated as follows:
“As these authorities show, there is a thin line between “mistake” and “ignorance”.. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence, as Keely J pointed out in Connors.”
34. I further noted the case of Secretary of the Department of Veterans’ Affairs v Studdert (supra). Moore J in that case, dismissed the appeal by the Secretary of the Department of Veterans’ Affairs against the decision of the Tribunal which, relying on Telstra Corporation Ltd v Roycroft (supra), had held that there had been no mistake; however Mr Studdert had “reasonable cause” for late notice of his claim.
35. That case can be distinguished as far as Mr Slender goes because there were in fact military instructions extant at the time of Mr Studdert’s injury, whereas when Mr Slender was injured, there was no obligation pursuant to section 16 of the 1930 Act to notify him of compensation rights.
36. In considering the above cases, I was mindful of Mr Slender’s submissions that the Army made a mistake in failing to inform him about his hearing loss at the entry medical examination, and failed to provide information about his rights to compensation. I was mindful that pursuant to the 1930 Act and at the time of Mr Slender’s claimed incidents and injuries, there was no obligation on the employer to inform employees of their rights to compensation under the 1930 Act. The fact that personnel were not told about rights to compensation may have been deliberate, and the situation regarding disclosure of hearing loss in the entry medical situation did not persuade me that there had been mistake of the Commonwealth.
37. Having decided that it was not the Commonwealth’s mistake, and that Mr Slender could not succeed on mistake, accordingly I could not find that “mistake” applied so that the discretion to permit him to claim compensation could be exercised in Mr Slender’s case.
38. In further considering Mr Slender’s situation in regard to the discretion referred to in section 16(1) of the 1930 Act, and in consideration of “reasonable cause”, I also considered ReWillis v Australian Telecommunications Commission (1989) 19 ALD 665, where I noted the Tribunal held that it had been reasonable for a person in that applicant’s situation not to give notice of his early (1956 & 1957) injuries. It was held in that case, that the applicant’s failure to serve notice of those injuries and to claim compensation in respect of those injuries within the relevant periods had been occasioned by “reasonable cause” within the meaning of section 16(1) of the 1930 Act. The Tribunal in that case had therefore held that it was entitled to entertain the applicant’s claim for compensation.
39. I noted also in Re Loft and Comcare (1996) 52 ALD 606, also a case where the Applicant did not make a claim until many years outside the six month period specified in the 1930 Act, that the Tribunal found a reasonable cause could be construed pursuant to section 16(1) of the 1930 Act. Senior Member Dwyer in that case, gave weight to the fact that on the basis of Army medical records and the fact that Mr Loft had been hospitalised and absent from duty, the onus was (based on military instructions), on the medical officers and commanding officers to assist with compensation claims. That is of course a situation very different from that of Mr Slender and Re Loft (supra) can be distinguished on that basis.
40. I was mindful of Mr Slender’s submissions that hearing loss and other conditions take time to develop, that he did not for a long time associate his hearing loss with his National Service activities, and that he was ignorant of his rights to claim compensation. I noted also his concern that he was not told of his hearing loss on entry into National Service. I also took into account Mr Johnson’s submissions with regard to “other reasonable cause”, and the relevant case law. The result was that I could find no “other reasonable cause” arose in relation to Mr Slender which would permit me to exercise the discretion to permit him to make a claim for compensation for his hearing loss or aggravation of hearing loss claimed to have arisen out of his National Service.
41. Having decided that it was not the Commonwealth’s mistake, and that Mr Slender could not succeed on “mistake”, that there was no question that he had been present in Australia in the relevant period, and that there was no “other reasonable cause” which could account for his not making a claim within the six months prescribed by section 16(1) of the 1930 Act, I could only affirm the decision of the Respondent. Accordingly I have decided that the discretion to permit Mr Slender to claim compensation some forty years after the incidents he claimed occurred on National Service cannot be exercised. His failures to notify any injury or aggravation or claim for compensation were not occasioned by mistake, absence from Australia or other reasonable cause. Accordingly, Mr Slender’s application must fail.
42. For the sake of completeness I have commented on the implications of section 12 of the 1930 Act without making any findings. In that regard, I noted Mr Slender’s evidence that he worked successfully in local government as a clerk and engineering officer from his discharge from the Army in 1960 until 1987 when he retired due to ill health (diabetes), in 1987. There was no incapacity or difficulty with work mentioned during the Hearing.
43.
44. I have noted also that Dr Pohl, ear, nose and throat specialist who treated Mr Slender expressed his opinion, in a report dated 1989, that his hearing problems were due to ageing, diabetes and cochlear otosclerosis. For Mr Slender to succeed in claiming for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988, his entitlement would need to be considered pursuant to the transitional provisions in sections 123A and 124 of the 1988 Act.
45. However lump sum compensation would not be available at all unless Mr Slender was able to satisfy the tests in section 16(1) of the 1930 Act and liability was accepted which in fact had not occurred.
DECISION
46. The Administrative Appeals Tribunal affirms the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs dated 6 February 2001 (T8) as affirmed by the Manager Reconsideration of that Service, dated 5 July 2001 (T13), who held that pursuant to section 16 of the Commonwealth Employees’ Compensation Act 1930 – 1956, compensation was not payable to Mr John Graham Slender because a notice of the accident was not provided within six months of the accident, and the failure to make the claim could not be held to have been occasioned by mistake, absence from Australia or other reasonable cause. Further the Commonwealth was prejudiced.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member
Signed:L Bonouvrie
AssociateDate/s of Hearing 25 March 2003
Date of Decision 8 April 2003
Applicant Self Represented
Counsel for the Respondent Mr G Johnson
Solicitor for the RespondentAustralian Government Solicitor
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