Studdert and Comcare - [2001] AATA 339

DECISION AND REASONS FOR DECISION [2001] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/326

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DONALD STUDDERT
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date26 April 2001
PlaceSydney

Decision The Tribunal decides:

1. to set aside the reviewable decision; and
2.to remit the matter to the Respondent with the direction that the Applicant's claim for compensation for heart and respiratory conditions meets the requirements of s 16 of the Commonwealth Employees Compensation Act 1930 regarding late notice and claim and is to be admitted for consideration; and
3.to order the Respondent to pay the Applicant's costs of these proceedings in accordance with the General Practice Direction of the Tribunal.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
Workers' Compensation – Tribunal jurisdiction – respiratory disease – lodging compensation claim more than six months after onset of injury – prejudice to the respondent – unavailability of medical records – unavailability of witnesses –– transitional provisions – compensation for medical expenses – other reasonable cause – National Service – basic training – tear gas exposure – lack of medical treatment
Safety, Rehabilitation and Compensation Act 1988, ss 123A, 124(1), (1A), (2)(b), (3), (4), (8), (9), (10)(b)
Commonwealth Employees Compensation Act 1930 s 16
National Service Act 1951, ss 25-27

Telstra Corporation Limited v Roycroft (1997) 47 ALD 671
Re Vickery and Commonwealth of Australia (1985) 8 ALD 93
Re Loft and Comcare (AAT 10819, 14 November 1995)
Secretary of the Department of Defence as a Delegate of Comcare v Gorton [2000] FCA 416
Re Muras and Department of Defence (1998) 52 ALD 580
Commonwealth of Australia v Connors (1989) 86 ALR 247
Comcare v Luck (1999) 29 AAR 403

REASONS FOR DECISION

25 April 2001 M J Sassella, Senior Member

History of the application

On 7 July 1998 Donald Studdert ("the Applicant") completed a Department of Defence benefit election record, a claim for medical services and medical release authority in respect of his heart condition and "heart by pass [operation] and stress." (T7)
On 20 July 1998 the Applicant wrote to a delegate of Comcare ("the Respondent") in the Department of Defence, Military Compensation & Rehabilitation Service, attaching a claim for compensation in regard to heart and respiratory conditions allegedly caused by a gassing incident whilst he was serving in the Australian army. The incident occurred on 6 April 1955 (T3).
On 9 February 1999 the delegate wrote to the Department of Defence's Directorate of Entitlements (T7). He requested information on the Applicant's alleged gas exposure and any relevant medical information.
On 25 February 1999 the delegate's letter of 9 February (T7) was replied to by the Defence Health Service Branch (T8). This letter stated that there was no record of the Applicant's injury, illness or condition in the Central Medical Record.
On 23 June the Respondent disallowed the Applicant's claim for compensation (T17). In doing so it relied on the letter of Dr Braude, consultant physician, of 3 May 1999 (T13) where he stated that on the balance on probabilities the "exposure to tear gas has not resulted in a long term respiratory condition." In support of his opinion he relied on an article in the Journal of the American Medical Association ("JAMA").
On 5 July 1999 the Applicant wrote to the Respondent notifying it of his request for a reconsideration and for an extension of time in which to provide further medical opinion (T18). In this letter he made some salient objections to the decision to disallow his claim. He noted the brevity of Dr Braude's report and in particular that Dr Braude, in framing his opinion, had no knowledge of the circumstances of the gas exposure. The Applicant took issue with Dr Braude's reference to the JAMA article which stated that "if tear gas is used correctly the noxious effects are transient and of no long term consequence." The Applicant clearly did not feel that his exposure to tear gas was one that was correct or of "no long term consequence."
On 13 July 1999 the Respondent granted an extension of time to the Applicant in which to lodge further medical evidence in support of his compensation claim (T19).
On 22 September 1999 the Applicant wrote to the Respondent (T20) attaching a report of Dr Gibson of 3 September 1999 (T20, folios 49-51). He also referred the delegate conducting the reconsideration to his army medical examination record dated 11 October 1954 (T7). On this record he stated, in response to the first question regarding any current disabilities or disease, that he had "sharp pain L. breast every few weeks." He contended that it was negligent of the army to expose him to gas when there was the possibility of heart/lung problems.
On 30 September 1999 the Respondent wrote to Dr Gibson requesting a further report on the Applicant and answers to specific questions (T21).
On 15 October 1999 the Respondent wrote to the Applicant requesting reasons as to why he had not lodged a claim for compensation within six months of the injury or onset of the condition, pursuant to s 16 of the Commonwealth Employees Compensation Act 1930 ("the 1930 Act") (T22). The Respondent also requested evidence relating to the Applicant's claim that his left breast pain bore some relationship to his present complaints, or that the pain was affected by the tear gas episode.
The Applicant subsequently wrote back to the Respondent on 25 October 1999 (T23). He stated that he was unaware of his rights "prior to or during the course of my National Service Training, with regard to injury, accident etc. claims." He further stated that the reason why he had not earlier reported his condition was that the doctors he had consulted had no experience or knowledge of tear gas exposure.
On 6 January the Respondent affirmed the decision of 23 June 1999, which denied liability in regard to the Applicant's respiratory illness (T25). It stated that, in addition to the report of Dr Braude, that of Dr Gibson of 9 December 1999 also suggested that it was unlikely that the respiratory condition was due to tear gas exposure in 1955.
On 1 March 2000 the Applicant lodged with the Tribunal an application for review (T1).
Relevant legislation
The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act"), ss 123A, 124(1), (1A), (2)(b), (3), (4), (8), (9), (10)(b), the 1930 Act s 16 and the National Service Act 1951, ss 25-27.
The 1988 Act
"Section 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.
Section 124 Application of the 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:
…
(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
…
(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.
…
(8) A person is not entitled to compensation under subsection 16(1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, if:
(a) an amount was paid in respect of that cost or expenditure under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) an amount was not payable in respect of that cost or expenditure:
    (i) where the liability for the cost arose, or the expenditure was incurred, before the commencement of 1930 Act-under the 1912 Act;
    (ii) where the liability arose, or the expenditure was incurred, after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the liability arose or the expenditure was incurred; or
    (iii) in any other case-under the 1971 Act as in force when the liability arose or the expenditure was incurred.
(9) The amount of the compensation (if any) that is, by virtue of this section, payable under subsection 16 (1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, shall be the same as the amount that would have been payable in respect of that cost or expenditure, if this Act had not been enacted, under:
(a) where the liability for the cost arose, or the expenditure was incurred, before the commencement of the 1930 Act-the 1912 Act;
(b) where the liability arose, or the expenditure was incurred, after the commencement of the 1930 Act but before the commencement of the 1971 Act-the 1930 Act as in force when the liability arose or the expenditure was incurred; or
(c) in any other case-the 1971 Act as in force when the liability arose or the expenditure was incurred.
(10) Where:
…
(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or
…
that person is not entitled to compensation under this Act in respect of that injury.
…"

The 1930 Act

"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 –
within six months from the occurrence of the accident; or
in the case of death – within six months after advice of the death has been received by the claimant:

Provided always that –
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
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.
(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 –
in the case of a claim arising out of death of the employee caused by the disease – as soon as practicable after his death; or
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;

a notice shall, for the purposes of sub-section (2.) of this section, be deemed to contain the date at which the accident happened if it specified the date at which, or period during which, the employee contracted the disease; and
a notice shall be deemed to have been duly served in accordance with the last preceding sub-section if –
it was sent in the manner specified in that sub-section to the Permanent Head or Chief Officer of the Department or authority by which the employee was employed in employment to the nature of which the disease was due or, if he was so employed in more than one Department or authority, to the Permanent Head or Chief Officer of the Department or authority by which he was last so employed;
it was delivered at the head office of the Department or authority by which he was so employed or last so employed, as the case requires; or
it was served in any other prescribed manner."

The National Service Act 1951

"25. (1) A person who- (a) is registered, or is required to register, under this Act; (b) has attained the age of twenty years, or, in the case of a person registered under section sixteen of this Act, nineteen years; (c) is not exempt from liability to render service under this Act; and (d) has not attained the age of twenty-six years or, in the case of a person included in a prescribed class of persons, thirty years, is liable to render service as required by or under this Act. (2) A person who has commenced to render service under this Act but has not completed that service is liable to complete the rendering of that service.
26. (1) The Secretary may serve on a person liable to render service under this Act a notice calling up that person for service with the Military Forces of the Commonwealth.
(2) A notice served on a person under the last preceding sub-section shall specify the time and place at which, and the authority to which, that person is to present himself for service. Added by No. 126, 1964, s. 11.
(3) The Secretary may, before the time specified in the notice, serve on the person a further notice that revokes the first-mentioned notice or varies the first-mentioned notice in such manner as is specified in the further notice. Added by No. 51, 1968, s. 12.
(4) Where a person has, whether before or after the commencement of this sub-section, failed to comply with the requirements of a notice served on him under sub-section (1) of this section, the Secretary may at any time serve a further notice on the person under sub-section (1) of this section.
27. (1) A person on whom a notice has been served under the last preceding section shall, upon presenting himself for service, be deemed to have been enlisted for service in the Regular Army Supplement and to have been engaged to serve in that force for a period of eighteen months. Amended by No. 80, 1971, s. 5.
(2) Upon his completion of the period of service in the Regular Army Supplement for which, under the last preceding sub-section, a person is to be deemed to have been engaged, he shall, subject to the succeeding provisions of this section and the next succeeding section-
(a) be discharged from that force; and
(b) upon being so discharged, be deemed to have been enlisted for service in the Regular Army Reserve and to have been engaged to serve in that force for a period of three and one-half years.

(3) If the period of service for which-
(a) a person is to be deemed to have been engaged or re-engaged to serve in the Regular Army Supplement; or
(b) a person is to be deemed to have been engaged to serve in the Regular Army Reserve, expires during a time of war, he shall, upon his completion of that period, be deemed to have been re-engaged to serve in that force for the duration of the time of war.

(4) If the period of service in the Regular Army Supplement for which, under this section, a person is to be deemed to have been engaged or re-engaged expires during a time of defence emergency, he shall, upon his completion of that period of service, be deemed to have been re-engaged to serve in that force for the duration of the time of defence emergency or until the expiration of the period of five years after the date on which he presented himself for service under this Act, whichever is the shorter period.
(5) If, upon or before the expiration of the period of his engagement to serve in the Regular Army Supplement, a national serviceman volunteers and is accepted for an additional period of service in that force, he shall be deemed to have been re-engaged to serve in that force for the additional period.
(6) Where, as provided by the preceding provisions of this section, a national serviceman has served in the Regular Army Supplement for a period of not less than five years, he is not liable to render further service under this Act.
(7) Where, as provided by the preceding provisions of this section, a national serviceman has served in the Regular Army Supplement for a period of less than five years, he shall, subject to the succeeding provisions of this section and the next succeeding section-

(a) upon his completion of that period of service be discharged from that force; and
(b) upon being so discharged, be deemed to have been enlisted for service in the Regular Army Reserve and to have been engaged to serve in that force for the period by which the period of five years exceeds the period for which he served in the Regular Army Supplement. Inserted by No. 51, 1968, s. 13. (7A) A national serviceman who is serving in the Regular Army Supplement under a re-engagement referred to in sub-section (5) of this section may be discharged from that force in accordance with regulations under the Defence Act 1903-1966 but, upon being so discharged, he shall, subject to the succeeding provisions of this section and the next succeeding section, be deemed to have been enlisted for service in the Regular Army Reserve and to have been engaged to serve in that force for the period by which the period of five years exceeds the period for which he served in the Regular Army Supplement. Amended by No. 80, 1971, s. 5.

(8) If, upon or before the expiration of the period of his engagement to serve in the Regular Army Supplement, a national serviceman volunteers and is accepted for service, after his discharge from that force in-
(a) the Regular Army Emergency Reserve for a period of not less than four years; or
(b) the Active Citizen Military Forces for a period of not less than three and one-half years, he is not liable to render further service under this Act except as provided by the next succeeding sub-section.

(9) Where a person referred to in the last preceding sub-section, having enlisted in the Active Citizen Military Forces, fails to render efficient service in that force as provided by regulations in force under the Defence Act 1903-1965, he shall be discharged from that force and, upon being so discharged, shall be deemed to have been enlisted in the Regular Army Reserve and to have been engaged to serve in that force for the period by which the period of five years exceeds the total period of his service in the Regular Army Supplement and in the Active Citizen Military Forces.
(10) If, at the date of the expiration of the period of his engagement to serve in the Regular Army Supplement, a national serviceman is absent from duty on account of an illness or injury in circumstances in which, under regulations in force under the Defence Act 1903-1965, he would be eligible, if he were retained in that force, to be paid for service, he may, with his consent, be retained in that force for the period for which he is so absent from duty and, if he is so retained, shall be deemed to have been re-engaged to serve in that force for that period."

Appearances

Mr John Fitzgerald of counsel represented the Applicant. Mr Grant Elliott of counsel represented the Respondent.
The following material was taken into evidence at the hearing:
Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 Exhibit TD1
Report of Dr Gianoutsos dated 1 May 2000       Exhibit A1
Affidavit of Donald Studdert dated 9 August 2000        Exhibit A2
Statement of Paul Ontong dated 15 December 2000   Exhibit R1

Medical and other evidence

Before enlistment in the army the Applicant was medically examined on 11 October 1954 (T7). No significant abnormalities or conditions were found, although the Applicant did complain of "sharp pain L. breast every few weeks" at question 1.
On 2 March 1999 Dr Braude, consultant physician, reported on the Applicant (T9). He stated that the Applicant "doesn't classically have asthma" and that "there is a possibility of some small airways disease over time." There was no definite diagnosis provided in this report and Dr Braude recommended sending the information to the Respondent because the Respondent would be more aware of the gas the Applicant was exposed to and the long-term risks of that exposure.
On 10 March 1999 a minute from the Defence Personnel Executive stated that "all members of the Australian Defence Force undergo exposure to tear gas as part of initial training" (T10).
On 3 May 1999 Dr Braude stated in a report (T13) that "…on the balance of probabilities his exposure to hear gas has not resulted in a long term respiratory condition."
On 3 September 1999 Dr Gibson, staff specialist in respiratory medicine, reported on the Applicant's medical condition (T20). Dr Gibson found that the Applicant's "history and clinical features are consistent with upper airway dysfunction." He also found that it was "conceivable that this problem could have occurred following a severe exposure to an irritant gas."
On 9 December 1999 Dr Gibson again reported on the Applicant (T24). He found that "on the balance of probabilities I consider it to be unlikely that Mr Studdert's current respiratory illness was due to the nature of his employment in the army or his exposure to tear gas in 1955."
On 1 May 2000 Dr Gianoutsos reported on the Applicant (Exhibit A1). He found that the Applicant's description of his gas exposure "strongly suggests to me he had what would nowadays be called reactive airways dysfunction syndrome."
On 9 August 2000 the Applicant swore an affidavit relating to the gas incident and the onset of his condition (Exhibit A2). He described in detail the procedure of being shut up with other recruits in a hut with all the windows and doors shut. The Applicant stated that after this incident he visited the army medical centre, but was effectively "told to get back to training." He further stated that after his discharge from the army on 4 January 1960 he saw many doctors but was never given any treatment. He reiterated his statement that he did not lodge a claim for compensation earlier because he was never informed of his compensation rights during the course of his national service.
On 15 December 2000 Mr Paul Ontong, an officer from the Military Compensation and Rehabilitation Service, provided a statement to the effect that the Respondent had been prejudiced by the delay in the lodging of the claim for compensation (Exhibit R1). He stated that the Respondent had had no opportunity to examine the Applicant either during his service or after he left the army. He further stated that the delay would cause the Respondent difficulties in gaining evidence from witnesses who were present at the time of onset of the disease. Because the Applicant has, since the onset of the condition, had other employment, it is difficult for the Respondent to gauge the effects of his employment on his condition.
The Applicant gave evidence at a hearing convened by the Tribunal. Before enlisting, the Applicant had been an apprentice plumber from the age of 15. He enlisted at 19. His national service required three months of full-time service followed by short-term commitments to fortnight-long or weekend camps. He continued to work by day as a plumber.
The Applicant understood that he was covered by workers' compensation if injured during civilian employment. His boss had told him that. At one time he had fallen and injured his ankles while working as a plumber.
When he was inducted into the Army the pre-service training and instruction was limited to a talk where he was told he would have to do the three months of basic training and that he had to abide by Army rules and regulations and do as he was told. He was told nothing of what to do if he sustained any accident or injury on service. Again, at the time of discharge, the recruits were given no advice as to their rights and obligations as regards any injuries that had occurred during training. He picked up nothing from colleagues on this.
After the gassing incident the Applicant complained that he was short of breath and that he had wheezing and tightness in his chest. He reported to the sick bay but the attendant there told him to get back to his training. The Applicant says that he protested that he was sick from being gassed. However he was told to return to training and forget about it. The Applicant had understood that it was necessary to report to the sick bay if he became sick or had an accident during training. He expected to receive help there. The response was not what he had expected. He had understood that the Army was to look after him and he felt that the approach of the sick bay attendant was wrong.
The Applicant then spoke of his time in the Army after the gassing. While his chest tightness eased after the gassing he still had wheezing at a slightly lower level. He had a shortness of breath which has persisted. He complained of his lingering problems at least six times over about a fortnight to non-commissioned officers ("NCOs"). This was apropos treatment, not compensation in monetary form. They were uninterested in how Mr Studdert felt. They again told him to concentrate on his training. The Applicant did as he was told for fear of being incarcerated if he agitated any further. The Applicant cannot recall the names of the NCOs. The Applicant agreed in cross-examination that he submitted nothing in writing to the Army concerning the gassing incident and alleged injuries.
The Applicant said the conditions were "hell". He was sick and in pain but he was required to keep going. The Applicant discussed his concerns with his colleagues. One, Malcolm Whalley, is reported to have said that it was disgusting that the Army had done nothing for the Applicant. He referred to another recruit who had fallen off a cliff and died during his basic training. This had occurred before the gassing incident. The commanding officer had told the recruits to say nothing about the cliff incident. The body was retrieved and the relatives were notified. The Applicant could not recall the name of the deceased. The Applicant agreed in cross-examination that this incident did not deter him from reporting injuries. He in fact reported after the gassing, which was a later occurrence.
After he finished his three months training the Applicant went to civilian doctors about his chest difficulties. He had no discharge medical in the Army itself. He saw Dr Colditz at Rockdale. He spoke also to his parents who advised him to seek help from civilian doctors. The Applicant obtained very little help from civilian doctors.
It was not until July 1998 that the Applicant became aware that he could seek compensation in respect of the gassing.
Applicant's argument
Mr Fitzgerald presented alternative arguments. On the assumption that s 16 of the 1930 Act applied to Mr Studdert he argued that Mr Studdert might take advantage of the exceptions of mistake or other reasonable cause (s 16(1) Proviso) as acceptable bases for not having given notice in writing and lodged a claim within the time limits specified in s 16.
Reference was made to Telstra Corporation Limited v Roycroft (1997) 47 ALD 671 in which the Federal Court (North J) explained the dividing line between a mistake by an employee and the employee's ignorance at 679. Under the 1930 Act an employee might be allowed relief if he or she operates under a mistake but not if he or she is merely ignorant.
"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."

Mr Fitzgerald applied these principles by suggesting that the Applicant's state of mind was that there was no point in pursuing with the Army any rights to treatment or compensation. This was a mistaken state of mind. He had a mistaken belief that the Army had no responsibility to offer him treatment. As an extension of this belief he understood that, as an ex-soldier, he had no rights. This was a reasonable belief. It was not inadvertence. He had "had his nose rubbed in it" when he made his approaches to the Army.
The Applicant might argue also that he had "other reasonable cause" for failure to notify and to claim within the appropriate time. In Re Vickery and Commonwealth of Australia (1985) 8 ALD 93 at page 103 the Tribunal suggested that ignorance in appropriate circumstances might amount to "other reasonable cause" The Tribunal said:
"It is a question for the Tribunal whether New South Wales Workers' Compensation Commission decision-making, and earlier decisions of other courts and tribunals under workers' compensation applying in the various States, should bind this Tribunal in its special role of providing administrative review of decision-making under the 1971 Act …. The Tribunal considers that it should not. Those charged with the administration of the 1930 Act, and the respondent, as an employer under that Act, had failed in their responsibility to acquaint the applicant at the relevant time with his rights under beneficial legislation, and had failed to assist him in securing those rights. It would be strange indeed if the Tribunal were to endorse the notion that their successors, namely the Commissioner under the 1971 Act, and the respondent, should be able to rely upon their failings, and deny the applicant's right to have his claim determined on its merits."

Mr Fitzgerald sought to apply the principle embodied in this quotation to Mr Studdert's case.
Mr Fitzgerald referred also to Re Loft and Comcare (AAT 10819, 14 November 1995) where the Tribunal wrote:
"13. Mr Thompson, in making that submission, relied on Military Board Instruction ('MBI') 34/1950 dated 3 March 1950 (exhibit A24) and on the provisions of the Report of an Injury form ('AAF D11') prepared for use by the Australian Military Forces. Part V is headed 'Injuries to Members'. It provides:
'38. When a member is injured, the CO of the member will ensure that an AAF D11 is completed, without delay, . . .
'39. The medical officer who attends to the member will record, on the AAF D11, a description of the disability and the probable period, if any, during which the member will be incapacitated for resuming duty or civil avocation and whether in his opinion - (a) the injury will, or is likely to, cause permanent ill-effects; (b) the injury will, or is likely to, impair the future efficiency of the member as an officer or as a soldier; (c) the present condition of the member could have resulted from an injury so stated by the member; (d) there is any evidence of a pre-existing disability and, if so, has it been aggravated by any recent injury; and (e) the injury is of a minor nature.
'40. (a) Before a member who is injured is evacuated to a medical unit, the medical officer directing his evacuation will endorse on the Field Medical Card (AF W3118) either 'D11 prepared' or 'D11 NOT prepared', whichever endorsement is appropriate, and he shall sign and date the endorsement made by him. (b) If, on the admission of such a member to a medical unit, his AF W3118 is endorsed 'D11 NOT prepared', or if there should be no endorsement, the medical officer in charge of the case will prepare an AAF D11, forward it to the member's unit and endorse the member's AF W3118 with the words and figures 'D11 prepared', signing and dating the endorsement. (c) If a member is admitted to a Repatriation, public or private hospital, the CO of the member will be responsible for ensuring that the AAF D11 is completed by a Repatriation or civilian medical officer, if it were not completed by a medical officer prior to admission.
'41. (a) Upon receipt of the completed D11, the CO will, subject to sub-para (b) of this paragraph, appoint an investigating officer. Except in the circumstances mentioned in para 43, the report submitted by the investigating officer will be in writing. (b) Unless the appointment of an investigating officer is otherwise required pursuant to this instruction or the CO or superior authority for some special reason considers it necessary, an investigating officer will not be appointed under this paragraph where- (i) the medical officer reports on the AAF D11 that the injury is of a minor nature and unlikely to cause permanent ill-effects; and (ii) the CO is of the opinion that compensation is unlikely to be entailed.
'42. (a) The majority of members of the AMF are covered by the provisions of the Commonwealth Employees Compensation Act 1948 (see Note 1 below). In each case of death or injury of a member, it will be necessary for the CO to ensure the completion and forwarding of he following documents, which are required for compensation under that Act:- (i) Treasury Form 'A' or 'B' (Application). (ii) Forms I, II and III (Statement by Claimant, Witnesses and Officer-in-Charge). (See Note 2 below.) . . . (b) The action required under para 42(a) need not be taken where the injury is slight and no loss of wages is involved. However, where the injury is serious or likely to cause loss of salary or wages or give rise to a subsequent claim for compensation, the required documents will be prepared and forwarded, through the usual channels, to the Command Secretary without delay. (c) It is stressed that application under this paragraph is required in every case where the injury may eventually give rise to a claim for compensation, whether or not a present claim is involved.'
"14. A blank copy of the form 'AAF D11 Report of an Injury' referred to in the MBI was received in evidence (A11). Section 7 is required to be completed by the Commanding Officer of the injured person. It confirms that the Commanding Officer has the responsibility of considering whether or not a claim for compensation should be made. It provides:
'7. DECISIONS AND RECOMMENDATIONS OF COMMANDING OFFICER . . . (e) (i) A claim for compensation under the Commonwealth Employees' Compensation Act 1948 has been/will be made. OR (ii) A claim for compensation under the Commonwealth Employees' Compensation Act 1948 has not been made for the reason that - the member is covered for compensation by the Australian' Soldiers' Repatriation Act. or the injury is slight and no loss of wages is involved. or the injury is not likely to cause permanent ill-effects or incapacity. or (here state any other reason). . . .'
"15. Major Craig, who is a major in the Australian Army and is a Staff Officer Grade 2 at the Australian Defence Force Health Records, Army, gave evidence. She stated that Mr Loft 's Army medical file does not contain any AAF D11 report of injury. She said of the MBI, at transcript p272: 'My reading of that is that it is the CO's responsibility to ensure that a D11 is completed. It is not the member's responsibility.'
"16. I find on the evidence of Major Craig, having regard to the provisions of the MBI and the form of the AAF D11, that in the Army the obligation to ensure that notice of an accident or a report of injury was served, and that the making of a claim for compensation was considered, rested with the medical officers and Commanding Officers concerned, and not with the soldier. I consider that it was reasonable for Mr Loft to rely on the medical officers and on his Commanding Officer to take any steps necessary as a result of his injury and to fulfil their obligations under the MBI. I find that the particular circumstances of Army service provide reasonable cause for Mr Loft to have failed to lodge notice of the accident within six months from its occurrence, and also for his failure to make a claim for compensation within six months of his injury. I am satisfied that s.16 of the 1930 Act did not prevent Mr Loft's claim being admissible under that Act and thus s.124(10) of the Act does not prevent Mr Loft being entitled to compensation."

According to Mr Fitzgerald, the Army regulations imposed an obligation on commanding and medical officers to ensure that notice of an accident or injury was served and that the making of a claim for compensation was considered. It was not an obligation imposed on a soldier. If anything, the obligation owed a conscript such as Mr Studdert was stronger.

As an alternative argument Mr Fitzgerald then submitted that s 16 of the 1930 Act applies only to volunteer soldiers, not to conscripts such as Mr Studdert. He said that the 1930 Act did not initially apply to military personnel. By amendment in 1951 (Act number 27 of 1951) military personnel were brought into the definition of "employee" under the 1930 Act. Section 16 of the 1930 Act was not amended. Section 16 provides for the following scheme. The employee must notify the employer of the accident. The employee must make a claim. The notification must occur as soon as practicable after the accident has happened "and before the employee has voluntarily left the employment of the Commonwealth". The claim must be made within six months of the occurrence of the accident. There is then a discretion should the employee not observe the time requirements.
Sections 25-27 of the National Service Act 1951 provided for no area of voluntary choice for a national serviceman. The national serviceman could never voluntarily leave the Army. A national serviceman could never, within s 16, "ha[ve] voluntarily left the employment of the Commonwealth". There is therefore no time limit within which the national serviceman must notify or lodge a claim.
Mr Fitzgerald submitted that the rules of statutory interpretation mean that the word "voluntarily" in s 16 cannot be ignored.
Respondent's argument
Mr Elliott responded to the Applicant's argument that s 16 did not apply to national service personnel by indicating that s 16 requires that the claimant must make his or her claim within six months of the occurrence of the accident in any event. Regardless of any merit that there might be in the Applicant's argument, the requirement to act before voluntarily leaving the employment applies only to the giving of notice.
Mr Elliott submitted that regardless of whether the Applicant has sustained an injury or contracted a disease, since 1959 s 16 applies. This flows from the decision in Secretary of the Department of Defence as a Delegate of Comcare v Gorton [2000] FCA 416 and the Federal Court's interpretation of s 16(4) of the 1930 Act. Thus, even if the Applicant in the instant case contracted a disease in 1955, rather than suffering an injury, he has had, since 1959, to satisfy s 16 of the 1930 Act if he is to make a successful claim. Mr Elliott submitted that Mr Studdert had not given notice of the accident as soon as practicable and had not lodged a claim within six months of the accident.
Mr Elliott indicated paragraph 12 of Exhibit A2, the Applicant's affidavit. In that paragraph Mr Studdert states that the reason he did not submit a claim on or soon after becoming aware of his respiratory illness in 1955 is that he was never informed of his rights prior to, or during, his national service training as regards injury or accident claims. He had never heard of the 1930 Act or of s 16 of the 1930 Act as being applicable to training accidents.
This led to the proposition, from the Loft case (supra), that the commanding officers and medical officers had a duty to ensure he gave notice and made a claim. Mr Elliott submitted that the Applicant was not badly advised or misled by his commanders. He had approached them only about possible treatment. He had not referred to compensation.
This, said Mr Elliott, is a classic case of ignorance on the part of Mr Studdert. It fits within the scope of the Roycroft case (supra). The Applicant was acting without any knowledge of the Act and did not whether or not it applied. He was ignorant as distinct from operating under mistake, as was described in Roycroft (supra) by North J.
Mr Elliott cited Re Muras and Department of Defence (1998) 52 ALD 580 as authority on many of the issues involved in applying s 16 of the 1930 Act in this case. Because the Applicant may have a disease rather than an injury, the effect of s 5(2) of the Commonwealth Employees Compensation Act 1959 ("the amending Act") was to require notice of the disease to be given as soon as practicable after 4 December 1959. Merely attending the Army medical centre or sick bay does not suffice. This is established in paragraph 15 (page 582) of the Muras decision (supra). Likewise, s 5(2) of the amending Act and s 16 of the 1930 Act combine to require that the Applicant must have lodged a claim for compensation by no later than 4 June 1960.
Mr Elliott proceeded to consider whether the Applicant could be excused from his failure to give notice and lodge his claim within time. He addressed the matters in the proviso in s 16(1). The first of these is prejudice to the Commonwealth. He referred to the elements of prejudice listed on Mr Ontong's statement of 15 December 2000 (Exhibit R1). These include that the delay is 42 years and memories are likely to be affected; the diagnosis is controversial and the chance has been missed for the diagnostic advice that would come from ongoing timely medical assessment; the exact time of the incident, and length of the Applicant's exposure to the gas, are unknown; the particular gas involved, the chemicals comprising the gas at the time, and its concentration, are not known; no medical records relating to the alleged incident are known to exist or have been located (T8); no medical reports have been provided that are any earlier than 1998, and so any changes in the condition over the years are not recorded; it is now too late to investigate other possible causes of respiratory ill-health such as exposure to smoking; and it is now difficult to identify officers involved in the Applicant's discharge from the Army to verify what he was told at the time.
Mr Elliott addressed whether the Applicant could argue mistake. This was covered earlier in these reasons at paragraph 48.
Mr Elliott submitted that the Applicant could not show "other reasonable cause" for his failure to notify and claim within time. Ignorance seemed to have been raised but is not relevant to show "reasonable cause" in this context. This was so held by the full Federal Court in Commonwealth of Australia v Connors (1989) 86 ALR 247 at pages 252 and 254. Mr Elliott argued that the decision in the Vickery case (supra), which effectively imposed a positive duty on administrators of compensation legislation to educate employees as to its operation, is dubious because it is a Tribunal decision that predated the authoritative decision of the Federal Court in Connors (supra).
Mr Elliott argued that the Connors decision (supra) would also seem to answer the Loft case (supra), where the Tribunal discerned a duty on commanding and medical officers in the forces to ensure that their servicemen reported accidents and lodged claims.
In summary, Mr Elliott pressed on the Tribunal that Mr Studdert had made no inquiry of the Army and was given no advice, bad or otherwise. He was simply ignorant.
Findings on material questions of fact with reference to the evidence or other material on which the findings are based
These reasons have been prepared without access to a transcript of the proceedings.
The primary legislation relevant to this application is the 1988 Act. The 1988 Act is the only Commonwealth workers' compensation legislation currently in force, however in some of its provisions it provides for compensation payments to be made only if an employee would have been paid under an earlier repealed compensation Act, such as the 1930 Act. A repealed Act can thereby become important in applying the 1988 Act.
The first issue to be dealt with is the Applicant's argument that s 16 of the 1930 Act is irrelevant to the Applicant because he was a conscript who could not voluntarily leave the employment of the Army. That meant that the phrase in s 16(1) of the 1930 Act requiring an employee who has had an accident to notify the employer about the accident as soon as practicable after the accident, "and before the employee has voluntarily left the employment of the Commonwealth" could not meaningfully be applied to the Applicant.
The Tribunal finds this an intriguing argument but is not persuaded. Regardless of whether the National Service Act can be read as barring a national serviceman from voluntarily leaving national service within the 18 months commitment, the obligation in s 16(1) is that an employee must notify of an accident as soon as practicable. There is no doubt that this requirement can meaningfully be applied to the Applicant and to other national service inductees. The reference in s 16(1) to having to notify, in any case, before voluntarily leaving Commonwealth employ simply imposes an outer limit on what might be the appropriate period for giving notice if the practicalities, for some reason, mean that reasonably timely notice is not practicable, or if the employee is about to leave Commonwealth employ quite soon. It does not appear to the Tribunal to matter if the phrase referring to leaving of employment cannot be applied. The underlying obligation to act as soon as practicable remains undisturbed.
Has the Applicant satisfied s 16 of the 1933 Act?
Section 16(4) of the 1930 Act required an employee who contracted a disease to serve on the Commonwealth notice in writing of the contraction of the disease as soon as practicable after the employee became aware that he was suffering from the disease, and to lodge a claim within six months after first becoming aware that he or she was suffering from the disease.
The proviso in s 16(1) of the 1933 Act permitted a claim to be entertained in several situations. One was if a notice was actually served but it failed to comply with time or form requirements, provided that the Commonwealth would not, by reason of the failure. be prejudiced by the failure. The others arise if the failure was occasioned mistake, or absence from Australia or any other reasonable cause.
In the present case no notice was served until the Applicant claimed compensation in a form received by or for Comcare on 20 July 1998 (T3). A claim form can also fulfil the role of a notice under s 16 of the 1933 Act. Comcare v Luck (1999) 29 AAR 403 is authority for this proposition in relation to the 1988 Act provisions. The provisions in the 1933 Act are largely similar, except that a time limit is imposed for lodging the claim. It would be strange if a different principle were to apply. There has, therefore, been a notice given under s 16(1) of the 1933 Act but it is deficient in not having been provided as soon as practicable.
It is necessary then to ascertain whether any of the exceptions in the proviso in s 16(1) can apply in this case. The first of these is if there is no prejudice to the Commonwealth arising from the delay in notification.
The period of delay is lengthy in this case. It is some 42 years, or 38 years if the Applicant is regarded as having contracted a disease. The issue of prejudice received considerable attention from Mr Elliott (for the Respondent) at paragraph 53, above, but little if any, from the Applicant.
The Tribunal is convinced by the Respondent's argument on this point. The range of matters addressed by Mr Ontong in Exhibit R1 is largely appropriate and relevant. This is a case where contemporary medical evidence appears extremely thin on the basis of what is currently presented to the Tribunal.
The Tribunal therefore finds that the exception in the proviso in respect of lack of prejudice to the Commonwealth is not applicable to assist the Applicant in this case.
The excuse of any absence of the Applicant from Australia is not applicable in this case. It was not raised by either party as a possibility.
The excuse of the Applicant's mistake is squarely raised in this case. Mr Fitzgerald argued that the Applicant was operating under a mistake in accordance with North J's analysis and explanation in Roycroft (supra). Mr Elliott countered by showing how Mr Studdert was affected by ignorance, within the North J analysis, rather than by mistake. The Applicant swore in Exhibit A2 that he was never informed of his compensation rights and he was ignorant of the 1930 Act and of s 16 of that Act.
The Tribunal finds that there has been no mistake by the Applicant of the type required by the Roycroft case (supra). The Tribunal accepts Mr Elliott on this point and the Applicant's own statements. At the same time the Tribunal acknowledges Mr Fitzgerald's argument as paragraph 36, above, in which he suggested that the Applicant was mistaken in his belief that the Army had no obligation to offer him treatment and that he had no rights. In the Tribunal's view, at base this argument is an argument based on the Applicant's ignorance. Indeed, in view of the Applicant's own evidence, to try and describe the Applicant's state of knowledge as anything other than ignorance requires such tortuous treatment of the English language as to render the proposition unsustainable.
The final issue is whether there is any other reasonable cause for the lateness of the Applicant's notice. The Applicant argued that the Army had failed in a duty it had to advise and assist the Applicant to claim compensation and notify of the accident. Cases such as Vickery (supra) and Loft (supra) were cited. Mr Elliott rebutted this with the Connors case (supra). The Tribunal notes the comments made by Northrop and Ryan JJ in Connors (supra) at pages 251-252:
"In the present case the tribunal pointed out that under the 1971 Act, failure to comply with the requirements equivalent to those imposed by s 16(10 of the 1930 Act to give notice of injury and to make a claim within prescribed times is excused where the failure results from ignorance, mistake or other reasonable cause. Despite the absence of 'ignorance' in the 1930 Act, the tribunal said of the respondent:
'In the present case I find that in 1972 the applicant was an average public servant working at a fairly low level after 20 years' service. It is extremely unlikely that such a person would be aware that a heart attack might lead after two years' more work to a valid claim for compensation. He was understandably ignorant of his rights and accordingly he had reasonable cause for his failure to make a claim within six months of his decision to retire.
'Such a factual situation cannot of course be equated to that of a man who ought to have known that a fall from a ladder resulting in injury and producing incapacity for work and loss of wages was a compensable injury. Such ignorance would be far less likely to constitute reasonable cause.'
"Since the only claim was that made under the 1930 Act in respect of the heart attack suffered in November 1970, we cannot understand why the tribunal found it necessary to consider whether there was reasonable cause for the applicant's failure to make a claim within six months of his retirement in 1972. …
"In our opinion, those facts are not sufficient to constitute other 'reasonable cause' under s 16 of the 1930 Act. On any view, if the respondent had known of the existence and extent of his rights under the 1930 Act, he could have given notice of the accident at any time after he returned to work in January 1971 and likewise could have made his claim within six months of 6 November 1970. 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 [by Court]). 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."

While these comments appear perhaps inconsistent with the principle applied by the Tribunal in the Loft case (supra), they are not, in the Tribunal's view. Connors (supra) was not a case about an alleged duty to inform and assist, as was Loft (supra). Connors (supra) was about an average public servant in the civil service. The Tribunal notes that the instructions issued to the military in 1950 predated Mr Studdert's injury. As reproduced in the Loft case (supra) at paragraph 39, above, they demonstrate a serious attention to detail by the military in ensuring that military officers are treated as well as possible by the military when an accident or injury occurred. The system described included failsafe measures to ensure the recording and treatment of an injury occurring while on duty. The Tribunal refers to Mr Suddert's evidence in paragraph 29, above. He understood that the Army had the sorts of responsibilities for his welfare as are described in the Loft case (supra). It appears from the sworn evidence given by Mr Studdert in Exhibit A2 and orally at the hearing, evidence not contradicted by the Respondent, that the standards established in those documents were not adhered to when Mr Studdert was injured.
For these reasons the Tribunal finds that this failure to adhere to the mandated standards is an "other reasonable cause" for the purposes of the proviso in s 16(1) of the 1930 Act.
Conclusion
The Tribunal has therefore decided that the Applicant's claim in respect of heart and respiratory conditions should be entertained by the Respondent.
Decision
The Tribunal decides:
to set aside the reviewable decision; and
to remit the matter to the Respondent with the direction that the Applicant's claim for compensation for heart and respiratory conditions meets the requirements of s 16 of the Commonwealth Employees Compensation Act 1930 regarding late notice and claim and is to be admitted for consideration; and
to order the Respondent to pay the Applicant's costs of these proceedings in accordance with the General Practice Direction of the Tribunal.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  19 December 2000
Date of Decision  25 April 2001
Counsel for the Applicant  Mr J Fitzgerald
Counsel for the Respondent  Mr G Elliott