Ward and Military Rehabilitation and Compensation Commission

[2004] AATA 1199

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1199

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/932

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHEN WARD

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date15 November 2004

PlaceSydney

Decision The decision under review is affirmed.

......................................

Ms N Bell, Senior Member

COMPENSATION – Chronic Cervical Spinal Pain Syndrome – Incident occurred 31 August 1971 – 19 Year Delay in Lodging Claim – Commonwealth Employees Compensation Act 1930 – Section 16 – Claim Must be Made Within 6 Months - Exceptions

Safety, Rehabilitation and Compensation Act 1988

Compensation (Commonwealth Government Employees) Act 1971

Commonwealth Employees Compensation Act 1930

Scott-Holland v Commonwealth 1983 46 ALR 328

Connors v Commonwealth 1989 86 ALR 247

REASONS FOR DECISION

15 November 2004 Ms N Bell, Senior Member

1.      Mr Ward, born in 1950, was conscripted and commenced National Service in June 1970.  He was discharged on 22 January 1973.  On 31 August 1971, while lifting free weights as part of physical training, he lost control of the bar and it fell, striking him on the back of his neck.  He was hospitalised for two days.

2.      Mr Ward contends that this incident was the initial cause of his current serious cervical spine condition.  He lodged a claim for compensation on 19 February 2002.  Comcare refused to entertain the claim.

3.      The 19 year delay in lodging a claim has, predictably, given rise to some complicating issues.  The first issue is which legislation should govern determination of liability for compensation.  The second issue is whether the applicable legislation allows for consideration of an application lodged so long after the event.

4.      These issues were raised early in the progress of the application, on a preliminary basis, before it was set down for hearing of the substantive application, and the Tribunal heard submissions from the parties and evidence from Mr Ward. 

5. Section 124(2) of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”), provides that a person is not entitled to compensation under that Act for an injury suffered before the commencement day of that Act if compensation is not payable under the Act in force at the time the injury was suffered.

6.      The precursor to the 1988 Act was the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) which commenced on 1 September 1971.  The precursor to that legislation was the Commonwealth Employees Compensation Act 1930 (“the 1930 Act”).

7.      At the preliminary hearing, the representative for Mr Ward submitted that he suffers from cervical spondylosis and that, as a disease, this did not manifest until a time after the commencement of the 1971 Act.  It follows, it was argued, that the relevant question is whether compensation was payable under the 1971 Act.  The provisions of the 1971 Act are more favourable to the circumstances of Mr Ward’s delay than are the provisions of the 1930 Act.

8.      The Tribunal, after considering these preliminary issues and hearing evidence from Mr Ward, directed that it had jurisdiction to hear the application, on the basis that the more favourable 1971 Act applies.  In the context of these threshold issues, Mr Ward’s argument concerning the late manifestation of cervical spondylosis was accepted.

9.      At the hearing of the substantive application these threshold issues were raised again by Comcare on the basis that the medical and other evidence to be heard by the Tribunal may resurrect them.

10.     Dr G David Champion, Rheumatologist and Consultant in Pain Medicine is Mr Ward’s treating specialist and gave evidence to the Tribunal.  His evidence was, among other things, that Mr Ward does not suffer from cervical spondylosis but rather from chronic cervical spine disorder and pain syndrome and that he has had those conditions since the injury in 1971.  Mr Ward’s evidence was that from the time of the injury he suffered intermittent headaches and cramping in his neck.  This evidence makes it impossible for me to conclude that Mr Ward has a disease that manifested sometime after the commencement of the 1971 Act.  I do not accept, as urged by Counsel for Mr Ward, that Dr Champion gave evidence of two distinct conditions with different dates of onset, straddling the commencement of the 1971 Act.

11.     The injury for which Mr Ward claimed took place on 31 August 1971 – the day before the commencement of the 1971 Act.  Therefore, I must consider whether compensation is payable under the 1930 Act.

12.     Section 16 of the 1930 Act provides that the Commissioner (or, in this application, the Tribunal) “shall not admit a claim for compensation … for an injury” unless the claim is made within 6 months of the date of the accident.  The term “admit”, in this context, means “entertained” (Scott-Holland v Commonwealth, 1983 46 ALR 328 at 344).

13.     The provision goes on, in 16(1)(a)(ii), to provide that consideration of the claim is not prevented if failure to make the claim within 6 months was caused by mistake, absence from Australia or other reasonable cause.

14.     Mr Ward’s evidence, in a statutory declaration dated 5 April 2002, was that he was not aware of his right to make a claim.  He declared “the only reason I have not approached the Veterans Affairs or SRCA in the past for assistance in this matter is that I was not aware of the assistance I could obtain or my rights under this Act.”

15.     The decision of the Federal Court in Connors v Commonwealth, (1986) 86 ALR 247, is authority for the proposition that the word “mistake” includes mistake of law as well as of fact but ignorance of the law does not constitute, by itself, a mistake and cannot, by itself, constitute “reasonable cause”.

16.     Mr Jackson, for Mr Ward, drew my attention to the Tribunal’s earlier finding, in the preliminary hearing, that Mr Ward believed he could claim when necessary under Veterans’ legislation.  However, even if I were bound by the Tribunal’s earlier findings, I note the conclusion of Senior Member Allen, on the evidence before him, that, if the 1930 Act applies then Mr Ward’s claim is defeated because ignorance is not a mistake.  He was clearly of the view that Mr Ward’s failure to claim was occasioned by ignorance.

17.     Mr Jackson also urged me to conclude that Mr Ward’s failure to claim was occasioned by “reasonable cause” in that he had no actual entitlement, no awareness of an injury sufficient to give rise to an entitlement or no reason to make a claim.  This does not sit well with Mr Ward’s evidence of symptoms immediately following the injury and in the 6 to 12 months following it.  His evidence was that he suffered, during that period, headaches with a cramp running up the side of his neck to the base of his skull and stiffness in his neck.  There is no evidence to suggest that a claim would have been, as Mr Jackson submitted, “otiose”.

18.     I am also mindful of the decision of the Federal Court in Department of Veterans Affairs v Studdert ([2001] FCA 1642) in which Moore J accepted that there must be a direct relationship between the failure of the individual to make the claim and the reasonable cause. The only evidence before me is that of the Applicant to the effect that he did not claim because he was ignorant of his right to do so.

19.     As the reason for the delay was not one that comes within section 16(1)(a)(ii), and it therefore cannot be entertained under the 1930 Act, Mr Ward is not entitled to compensation under the 1988 Act.

Decision

20.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ..[Linda Blue]...................................................
  Associate

Dates of Hearing  27 and 28 September 2004
Date of Decision  15 November 2004
Counsel for the Applicant         Mr C Jackson
Solicitor for the Applicant          Mr B Winship
Counsel for the Respondent     Mr G Johnson
Solicitor for the Respondent     Ms J Greaves