Walter and Comcare - [2000] AATA 799

DECISION AND REASONS FOR DECISION [2000] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/434

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Colin WALTER
  Applicant
           And    COMCARE
  Respondent

PRELIMINARY DECISION

Tribunal Mrs M T Lewis, Senior Member

Date8 September 2000
PlaceSydney

Decision The Tribunal determines that the Applicant's mistaken belief was a reasonable cause of his failure to give notice and make a claim for compensation in accordance with s16(1) of the Commonwealth Employees' Compensation Act 1930, and therefore the Tribunal has jurisdiction to proceed to hear and determine this application pursuant to the Safety, Rehabilitation and Compensation Act 1988.

..............................................
M T Lewis
Senior Member
CATCHWORDS
WORKERS COMPENSATION – hearing loss and tinnitus – whether Applicant notified within six months of the accident occurring – whether Commonwealth prejudiced by want or defect in notice –whether want or defect of notice occasioned by mistake or other reasonable cause
Commonwealth Employees' Compensation Act 1930 - ss 10, 16
Safety, Rehabilitation and Compensation Act 1988 - s124(2)(b)
Australian National Airlines Commission & Anor v Cassidy (1964) 110 CLR 172
Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328
Comcare v McGuire (1996) 68 FCR 329
Re Willis and Australian Telecommunications Commission & Anor (1989) 19 ALD 665
Re Scutts and Department of Defence (AAT 13085, 10 July 1998)
Re Commonwealth of Australia and Albert William Connors (1989) 17 ALD 313
Stevenson v Metropolitan Meat Industry Commission (1937) 37 SR (NSW) 109
Black v City of South Melbourne (1963) VR 34

REASONS FOR DECISION

8 September 2000 Mrs M T Lewis, Senior Member

This was a preliminary hearing in order for the Tribunal to consider a threshold point. The Applicant seeks compensation for hearing loss and tinnitus resulting from an incident that occurred on 12 October 1965. Due to the transitional provisions contained in s124(2)(b) of the Safety, Rehabilitation and Compensation Act 1988 ('the 1988 Act"), the Tribunal is required to determine whether compensation would be payable to the Applicant under the terms of the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act"), before the Applicant can be entitled under the 1988 Act. The threshold point to be determined is whether the Applicant complied with the time limits imposed under s16 of the1930 Act.
The Tribunal had before it documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975. In addition the Applicant tendered a sick report dated 12 October 1965 (exhibit A) and a statement dated 9 August 2000 (exhibit B). The Respondent tendered an affidavit of Gavin Scott Stuart dated 2 August 2000 (exhibit 1) and a Certificate of Registration in New South Wales of Dr Ross Arthur Johnson (exhibit 2).
The Applicant was unrepresented and gave oral evidence. Mr Gavin Scott Stuart, solicitor for the Respondent, also gave oral evidence.
background
The Applicant was a member of the Citizens Military Forces ("the CMF") during the period 1 April 1963 to 18 August 1966. During this time he was a trooper in the 1/15 Royal New South Wales Lancers,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] AATA 799
Decision Date: 8 September 2000

CaseChat Overview and Summary

Walter and Comcare is a case involving a former member of the Citizens Military Forces who experienced hearing loss and tinnitus during a military exercise. The Applicant sought compensation for these injuries from Comcare, the government agency responsible for workers' compensation claims for Commonwealth employees. The case hinged on whether the Applicant provided timely notice of his injury and if the Commonwealth was prejudiced by any delay. The Applicant argued that he reported his injury to his superiors immediately after the incident, but the Commonwealth argued that the notice was not timely.

The legal issues the court had to decide were whether the Applicant provided sufficient notice of his injury within the six-month period as required by law, and if the delay or lack of proper notice prejudiced the Commonwealth's ability to investigate or defend against the claim. The court had to interpret the relevant provisions of the Commonwealth Employees' Compensation Act 1930 and the Safety, Rehabilitation and Compensation Act 1988, as well as consider previous case law on similar issues.

The court found that the Applicant did report his injury to his superiors immediately after the incident, and that the Army medical officer did not record the hearing loss in the medical report. The court considered that the Applicant's report of his injury was sufficient notice to the Commonwealth, despite the lack of a formal written notice. The court also found that the Commonwealth was not prejudiced by the delay or lack of proper notice, as the agency had all the necessary information to investigate and defend against the claim. The court relied on previous cases, such as Australian National Airlines Commission & Anor v Cassidy, Scott-Holland v Commonwealth of Australia, and Comcare v McGuire, to support its decision.

As a result, the court ruled in favour of the Applicant, granting him compensation for his hearing loss and tinnitus. The court ordered Comcare to pay the Applicant compensation for his injuries, as well as any associated costs.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant was unrepresented and gave oral evidence. Mr Gavin Scott Stuart, solicitor for the Respondent, also gave oral evidence. background The Applicant was a member of the Citizens Military Forces ("the CMF") during the period 1 April 1963 to 18 August 1966. During this time he was a trooper in the 1/15 Royal New South Wales Lancers, based at Parramatta. He was qualified in driving vehicles, including armoured vehicles and the Centurian 50 tonne tank. During October 1965 the Applicant attended the annual 1/15 Lancers Camp at Puckapunyal, Victoria. His duties at that camp involved "B" vehicle driving (eg, trucks, ambulance and 4WD), but did not include tank driving. However, at short notice he was ordered to the "battle run" area to take over as tank driver from a driver who had suddenly become ill. During the "battle run" live ammunition was fired from the main gun – the tank was already at firing point when he was delivered at the scene by a 4WD vehicle. In his statement, the Applicant said – I climbed over the tank to enter via the driver's compartment in front of the turret. I entered the driver's compartment and commenced to pull down the driver's hatch cover.As I did, the main gun of the tank (a 20 pounder) was fired.I was totally unprepared for the firing, as I was still closing the hatch above my head. I did not even have time to place my headphones on – this would have muffled some of the sound.I recall that the shock from the firing was so great that I fell down into the driver's seat, injuring my shoulder. But by far the most memorable sensation was the screaming in my ears and almost total inability to hear. I completed the battle run under difficult circumstances, as I could hardly hear the crew commander's instruction through the headphones, due to the ringing in my ears (tinnitus). The Applicant said he reported the incident to the Crew Commander immediately (via the tank's radio). He was ordered to complete the battle run. He believed this was because there was no other driver available to take his place and the exercise was already behind schedule because a replacement driver (himself) had to be found. He said that he reported the incident to the Army medical officer at the conclusion of the exercise. He said – I recall having told the person about my main problem which was the noise in my head and the sudden hearing loss and they were more concerned about my arm. The Applicant said the Army medical officer recorded the injury to his shoulder but did not record that he had ringing in his ears or difficulty hearing. The medical officer's advice was that the ringing would stop and his hearing would return in a few days, and that this was a common occurrence with gunfire. The Applicant considered the fact that the Sick Report (exhibit A) states "muscle strain right shoulder" only, was indicative that the doctor did not place much importance on hearing loss. The Sick Report was among medical documents that the Applicant requested from the Department of Defence under the provisions of Freedom of Information, after his claim for compensation was refused on 22 June 1999 on the basis that there was no record of the incident occurring.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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