Ward and Comcare - [2002] AATA 953

DECISION AND REASONS FOR DECISION [2002] AATA 953

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/1097

GENERAL ADMINISTRATIVE DIVISION       )
           Re      NEIL WARD
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date18 October 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................(Sgd).....................
O Rinaudo
Member
CATCHWORDS
COMPENSATION – practice and procedure – time limits – time in which application for compensation to be made – whether applicant's failure to lodge claim within time was due to a mistake, absence from Australia or other reasonable cause
Commonwealth Employees Compensation Act 1930

Banks v Comcare [1996] FCA 382
Murray v Baxter (1914) 18 CLR 622
Re Willis and Australian Telecommunications Commission and anor (1989) 19 ALD 665
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

REASONS FOR DECISION

18 October 2002 Mr O Rinaudo, Member

Decision under Review

In this case the applicant has sought review of the decision of the respondent, Comcare, to reject his claim for compensation, made by determination of the respondent in June 2001, because the applicant's application was not submitted within the time allowed under section 16 of the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act") and because the applicant had not satisfied the respondent that the failure to claim within time was due to "mistake, absence from Australia or other reasonable cause". This decision was affirmed by an authorised review officer and the applicant's claim for compensation was disallowed as it was out of time.
Evidence
The evidence presented a the hearing consisted of the following exhibits:

Exhibit 1 Letter from Alan Johns dated 21 August 2002
Exhibit 2 Letter from JM Bennett, WO2, Chief Clerk, Australian Army dated 14 August 2002
Exhibit 3 Statement of Neil Charles Ward dated 3 June 2002 and attachments
Exhibit 4 Affidavit of Paul Ernest Alfred Ontong sworn 26 August 2002.

In addition the applicant, Mr Ward, gave oral evidence at the Tribunal. Mr Ward told the Tribunal that he had enlisted in the Australian Army in May 1962. He discharged in May 1982 having attained the rank of Warrant Officer 2nd Class. Mr Ward told the Tribunal that he was serving in Malaya in 1967 where he developed a dermatitis condition on the hands and feet. He says that on many occasions he had to wear thongs and that his hands and feet were covered with creams. He would be put on light duties.
Mr Ward said that he attended at the Orderly Room and a Corporal examined him and placed him on light duties. The Corporal told Mr Ward not to worry about filling out a D11 (a form which noted injuries or unusual diseases). Mr Ward said it was the Australian Medics who ran the Orderly Room who decided who were given the D11 and who would be allowed to compile one. Accordingly, no record of Mr Ward having contracted the skin complaint in Malaya was recorded. In about 1973, Mr Ward was diagnosed with recurrent dermatitis affecting his extremities. Mr Ward said that for the next fourteen years he was treated by the Army for this disease.
Mr Ward gave evidence that he was to fill out all claims before his discharge in 1980. Mr Ward made an application to the Repatriation Department, as it then was, in 1982, but the application was disallowed. Mr Ward appealed the decision but on 13 April 1983 his application was again turned down. Mr Ward said that upon receiving the determination of the Repatriation Department he read the finding and threw the document in the rubbish bin. Mr Ward said he did not distinguish between making a claim with the Repatriation Department or with Military Compensation at that time. Mr Ward said he was making a claim for the purchase of prescribed creams both for his hands and feet.
A number of documents were tendered on behalf of the applicant by the applicant's representative. These consisted of a letter from a Mr Allan Johns MBE (Exhibit 1) who said he was employed as a Chief Clerk in various units during his military service between 1952 and 1976. He said he rose to the rank of Warrant Officer Class 1. Mr Johns in his letter said he had dealings with soldiers with regards to reporting of injuries and it was his decision if forms (D11) were to be compiled. He said that:
"Should I not believe there was a requirement for a report to be completed the soldier would not receive a form to fill in."

He further said that in his experience:

"If a soldier had a minor injury or disease such as a headache, nausea, boils, scratch on the hand, tinea etc the soldier would not be given a form to complete."

A further letter was tendered from Warrant Officer 2nd Class JM Bennett, Chief Clerk, 41st Battalion, The Royal New South Wales Regiment (Exhibit 2). Warrant Officer Bennett described the procedure for the reporting of injuries and diseases. He said that it had only been over the last fifteen years or so that greater emphasis has been placed on the completion of the forms. He provided a brief description of what is required as follows:
"3. …
a.All soldiers are required to report to their Orderly Room prior to attendance at the Regimental aid Post (RAP), this enables the Orderly Room Clerk to notify the soldiers superiors of his whereabouts.
b.Following treatment from the RAP the soldier reports back to his place of duty via the Orderly Room for any administration that is required. It is at this time that the Orderly Room Clerk will issue the soldier an AC563, this is done for injuries or unusual diseases. I must point out at this stage that when I joined in 1973 right through to around 1986, soldiers were discouraged [to] fill out these forms as we were advised that it could effect our future service, this of course, as we know now, was completely false."
Warrant Officer Bennett further notes that it is up to the Orderly Room Clerk what injuries or illnesses will be actioned. He notes that normally flu, cold, headaches, tinea, blisters etc are not reported as "this would lead to excess paperwork and an image of softness that Infantry soldiers do not relate to".
In addition, a statement by the applicant was tendered (Exhibit 3). In essence this statement contained information which the applicant gave evidence both in examination-in-chief and in cross-examination. In the statement the applicant said that:
"In late 1981 I was informed by one of my peers that I may be entitled to a pension for my dermatitis, under the DVA. He told me that I would be looked after by way of treatment and medication which could be paid for by DVA."

The applicant further stated:

"The advice I was given with regard to recompensing me for my dermatitis was through DVA. This advice was given by a peer group member and also at my discharge seminar."

A Claim for Medical Treatment and Pension form dated 1981 was also tendered. This notes that the applicant was suffering from "skin problem to both hands and feet". The claim notes that:
"The skin problem relates to my service in a tropical area, Malayasia. The wearing of a British issue synthetic sock was detrimental to my feet. I am not absolutely sure whether or not I had skin problem on by hands during my Malayasian tour. However, I have suffered off and on with this condition. The treatment only helps the condition a little. The exact cause of this hands condition is really unknown to me."
The report of Medical Superintendent Dr Deakin of the Department of Veterans' Affairs dated 13 January 1982 was also a part of the material tendered. The diagnosis of Dr Deakin was pompholyx reaction. The decision of the Department of Veterans' Affairs with respect to the applicant's application was also before the Tribunal. The determination of the Department of Veterans' Affairs was that:
"The Board, in the absence of any contrary medical opinion, accordingly accepts the opinion of the departmental medical officer as to the cause of hyperhidrosis of hands and feet with pompholyx reaction and its relationship to the member's eligible service. The Board is satisfied beyond reasonable doubt that there are insufficient grounds for allowing the claim in respect of this disability. The claim is, therefore, refused."
The Board made the determination based on evidence provided by the departmental officer that the applicant's condition "is related to a genetic predisposition which reacts with thermal and/or emotional stimuli". The Board also noted that the applicant's tropical service occurred prior to the commencement of his eligible service for the purpose of Repatriation legislation.
The applicant appealed the decision of the Repatriation Board by letter dated 16 November 1982. A copy was tendered in evidence.
The appeal was heard and determined and copy of the determination dated 13 April 1998 was tendered in evidence. This document contains three pages. The first page has the following words appearing on it:
"The member's appeal against the Repatriation Board determination of 1 July 1982 in respect of incapacity resulting from hyperhidrosis of hands and feet is disallowed."
The applicant said in cross-examination that having read this determination he did not read the other two pages of the document and simply threw it away.
The fifth paragraph of the second page of the document explains clearly that the applicant's service in Malaya in 1967 was not at any stage allotted for "special service" and that as such the applicant's duty in Malaya did not constitute eligible service within the meaning of any Repatriation legislation. The letter then went on to say:
"The member may qualify for consideration under the Compensation (Commonwealth Government Employees) Act, but that matter is not within my jurisdiction."
Exhibit 4 is an Affidavit of Paul Ernest Alfred Ontong, Director of the Military Compensation & Rehabilitation Service which is a section of the Commonwealth Department of Veterans' Affairs. Mr Ontong said that although medical records had been located, no other relevant material is available to the respondent.
Mr Ontong said in his affidavit that on the basis of the applicant's failure to give notice the respondent had been prejudiced, in that, the Commonwealth had been unable to investigate the circumstances of the injury, specifically:
"(a)the Applicant has known of the injury for nearly thirty-four years and the Respondent has not had any opportunity of having the Applicant examined as soon as was practicable after the injury occurred or after he left the Defence Force until he lodged his claim for compensation;
(b) the Applicant alleges that his condition to his hands is aggravated by the use of petroleum products and since the Applicant ceased employment with the Commonwealth he has had other employment which included working with such products and as such the Respondent has found it difficult to gauge the effects of this employment after his service on his present condition;
(c)since the Applicant's discharge from the Army the Respondent has not had the opportunity to have the Applicant tested for allergic reactions to certain stimuli and I particular, to have an independent assessment of the Respondent to confirm if the Applicant's condition is indeed aggravated by any allergic reaction or if it is a pre-existing condition aggravated by appropriate levels of stress as noted in document T24 of the 'T' documents."

Legislation

The relevant legislation is contained in section 16 of the 1930 Act. That section states as follows:
"16(1)The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made:
(a) within six months from the occurrence of the accident; or
(b)in the case of death – within six months after advice of the death has been received by the claimant:
Provided always that –
(i)the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that 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."

Issue

The issue to be decided in this case is whether the applicant has complied with section 16, that is, whether the applicant has made a claim for compensation under the Act within six months from the occurrence of the accident and, if not, whether the Commonwealth has suffered prejudice and the failure to make the claim within the period of six months was occasioned by the applicant's mistake, absence from Australia or other reasonable cause.
Discussion of the Issues
In this case it is common ground that the applicant has not given notice of injury within six months from the occurrence of the accident. The applicant has otherwise failed to give notice of his skin disease. The Tribunal must therefore consider whether, as a result, the Commonwealth has been prejudiced and if the failure was occasioned by a mistake or other reasonable cause. In this regard it is noted that there is no suggestion that the applicant was absent from Australia during any relevant period which would of itself have given rise to the failure to notify.
There does not appear to be any mistake on the part of the applicant which has given rise to the failure to give notice.
With respect to other reasonable cause, the applicant appears to rely on the fact that in 1967 when he attended at the RAP, the duty officer refused to fill out a D11 form, the clear inference being that the completion of such a report would have put the respondent on notice that the applicant had been injured or suffered the illness. It should be noted that the Tribunal was provided with a copy of a D11 form dated 1968 in which the applicant suffered a laceration of the scalp as a result of being struck on the left side of the head by a cricket bat.
[The representative of the applicant provided the Tribunal with a copy of the Ethics Statement of the Australian Government Solicitor. The Tribunal cannot find any element of the respondent's presentation of its case that would suggest in any way a breach of the ethical statement as provided to the Tribunal. The only issue appeared to be that the respondent had not provided a list of questions as requested within the period of time which the applicant had requested. The late delivery of the affidavit by Mr Paul Ontong also appeared to be of concern to the applicant. The applicant's representative was given an opportunity to consider this late material and was prepared to proceed with the hearing on the basis that there was no prejudice to the applicant. The Tribunal was satisfied that no prejudice was occasioned to the applicant as a result and that the issues raised in the affidavit of Mr Ontong were well known to the applicant and the applicant's representative.]
Whilst it may be said that the completion of a D11 form may have assisted with a clear noting of the injury at the time it was reported, this does not constitute a notice as required under section 16 of the Act and would be only relevant to the issue of prejudice occasioned to the Commonwealth.
The applicant also stated he was not made aware of the right to claim compensation from Military Compensation as opposed to the Department of Veterans' Affairs and this is why he made the claim to the Department of Veterans' Affairs upon discharge. This of course was in 1982, some fifteen years after the incident which the applicant says led to the contraction of the disease. The Repatriation Board rejected the claim on two grounds:
(1) that the service in Malaya was not attributable to his defence service; and
(2)was not contracted in any material degree or was not aggravated by the conditions of his eligible service (s 107M of the Repatriation Act 1920).
The applicant's eligible period of service commenced on 7 December1972.
The applicant sought to appeal the decision of the Repatriation Board and received a determination on 13 April 1983. The applicant stated he only read the first page which contained a short paragraph (set out above) which disallowed the appeal. He said that he threw the document into the bin without reading the other two pages. On the first of the other two pages clear reference is made to compensation under the Commonwealth Employees Compensation Act 1930 and if the applicant had read this page he would clearly have been on notice that such a claim was able to be made.
In any event, much was made in cross-examination of document T40, folio 48 of the "T" Documents which clearly states in Question 8 in answer to the question "Have you ever had an accident or illness for which you have applied or intended to apply for compensation", answered yes. In Question 67 of the form, a notation opposite the figure "8" says "Recurrent rash on hands – awaiting reply from Vets Affairs". This carries the clear inference that the issue of compensation was considered at that time, namely May 1982, that a claim for compensation be made subject to the reply from the Department of Veterans' Affairs.
Of course, the applicant did not make a claim in the prescribed form until 20 March 2001 (T3, Folio 8). This was made after advice from a qualified advocate.
Reasonable Cause
It is clear from the documentary evidence available that the Army was aware from about 1970 that the applicant had a skin condition. There does not appear to be any doubt that the skin condition which the applicant complains of was known to the Army from about 1970 and he was treated for it on various occasions. The obligation to pay compensation is contained in section 10 of the 1930 Act. That section requires the Commonwealth to pay compensation for a personal injury (which includes a disease or injury) by accident arising out of or in the course of employment.
The Tribunal is not concerned in this case to determine the merits of the applicant's substantive application for compensation. The Tribunal is only concerned with whether the applicant should be entitled to proceed with that substantive application on the basis of the failure to notify in accordance with section 16 (set out above).
Submissions
The Tribunal was referred to the decision in Banks v Comcare [1996] FCA 382 in which it was held that:
"The expression 'reasonable cause' has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim: see Black v City of South Melbourne [1953] VR 34, 38: Quinlivan v Portland Harbour Trust [1963] VR 25, 28."

It was further submitted that the relevant period to the Tribunal's consideration as to whether a satisfactory explanation was given as required by the subsection was the six months following the accident: Murray v Baxter (1914) 18 CLR 622.
It was further submitted that one applies the "test by looking at what was a reasonable cause of conduct for the plaintiff in the circumstances in which he found himself….It is an objective test taking into account the subjective circumstances of the plaintiff in each of those cases": Re Willis and Australian Telecommunications Commission and anor (1989) 19 ALD 665 (which was applied in Re Spear and Comcare (AAT Decision 13061, 8 July 1998)).
In the present case, there does not appear to be any explanation for the delay other than that in 1968 the disease was not noted on a D11 form and that in 1981 the applicant misunderstood the difference between Military Compensation and the Department of Veterans' Affairs and that notwithstanding that the applicant was notified in a letter from the Department of Veterans' Affairs that a claim for compensation was available, he failed to do so.
In the circumstances there does not appear to be any reasonable cause why the applicant did not make a claim within the time required.
Prejudice
The provisos in section 16 are inclusive, that is, provided there is no prejudice and the failure occurred by mistake, absence from Australia or other reasonable cause, the claim should be allowed. As the Tribunal has determined in this case that the failure was not caused by mistake, absence from Australia or other reasonable cause, it is not strictly necessary to consider the issue of prejudice. However, for completeness the Tribunal considers this issue.
In considering the issue of prejudice, reference to the High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, and particularly the decision of McHugh J is most instructive. That case dealt with application for exercise of the discretion contained in section 31 of the Limitation of Actions Act 1974 (Qld) with respect to a claim for personal injuries. When discussing the issue of prejudice, his Honour noted (at 551):
"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limits has been driven by the general perception that 'where there is delay the whole quality of justice deteriorates'. (R v Lawrence [1982] AC 510 at 517 per Lord Halsham of St Marylebone LC). Sometimes the deterioration in quality is palpable as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [(1972) 407 US 514 at 532], 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed."
His Honour went on to note that the right of a citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. He said (at 552):
"Thus for many centuries the law has recognised the need to commence action promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuse of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties."
His Honour noted that it would be just as unfair to make shareholders, ratepayers or taxpayers of today ultimately liable for the wrongs of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. He noted (at 553):
"The final rationale for limitations periods is that the public interest requires that disputes be settled as quickly as possible."
In this case some thirty-four years has elapsed since the applicant stated he suffered the disease while serving in the Army in Malaya.
Whilst there is documentation available to the respondent in respect of medical examinations undertaken by the applicant from about 1970 onwards that the applicant suffers from a skin disease to hand and feet, clearly evidence that would assist the respondent in making a determination pursuant to section 10 (set out above) that the accident arose out of or in the course of his employment would now be impossible to determine. As the respondent stated, the respondent has not had an opportunity, and that opportunity has now passed, to enable it to properly determine precisely the cause and effect of the applicant's injury.
Accordingly, in the circumstances, the Tribunal is satisfied that the Commonwealth has suffered prejudice in this case. In the circumstances the Tribunal is satisfied that the applicant has not given the required notice as provided for in section 16 of the Commonwealth Employees' Compensation Act 1930 and accordingly the applicant's application for compensation cannot proceed as it is out of time.
The Tribunal therefore affirms the decision under review that the applicant's application be dismissed as the claim was not made within the appropriate time.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed:               S Oliver
  Associate
Date of Hearing  26 August 2002
Date of Decision  18 October 2002
For the Applicant  Mr T Barnes, RSL Advocate
Counsel for the Respondent    Ms E Ford
Solicitor for the Respondent    Australian Government Solicitor