Watson and Military Rehabilitation and Compensation Commission

[2005] AATA 1187

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1187

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2005/355

VETERANS’ APPEALS DIVISION		)
Re		MARK WILLIAM WATSON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date2 December 2005

PlaceBrisbane

Decision The Tribunal does not have jurisdiction to hear and determine the applicant’s claim because the applicant did not comply with the requirements in s 16 of the Commonwealth Employees Compensation Act 1930.

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

SENIOR MEMBER

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/355

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARK WILLIAM WATSON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

CORRIGENDUM [2005] AATA 1187

Tribunal Senior Member B.J. McCabe

Date13 December 2005

PlaceBrisbane

I DIRECT THAT paragraph 12 of the Tribunal’s Reasons for Decision should read: 
Section 16(1) includes two provisos. The first says the Commissioner may still consider a claim where the notice requirements have not been complied with if the inadequacy does not prejudice the Commonwealth or “was occasioned by mistake, absence from Australia or other reasonable cause”. The second proviso says a failure to make a claim as required will not be fatal if the failure “was occasioned by mistake, absence from Australia or other reasonable cause”.

I DIRECT THAT paragraph 15 of the Tribunal’s Reasons for Decision should read: 
The notice (included in the T documents at T10, pp 40 to 41) must satisfy the requirements of s 16. I think it does. Section 16(1) refers to the need to file an accident report. The report in the T documents describes the accident and its cause. The employer was put on notice that someone was injured in an accident and considered whether to undertake a further investigation into what transpired that day; it chose not to make further inquiries: cf Muras and Department of Defence [1998] AATA 645.

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – jurisdiction to hear and determine claim – non-compliance with statutory requirements – adequate notice of accident – failure to make claim without mistake, absence fro Australia or other reasonable cause - the Tribunal does not have jurisdiction to hear and determine the applicant’s claim.

Safety, Rehabilitation and Compensation Act 1988 s 124

Commonwealth Employees Compensation Act 1930  s 16

Muras and Department of Defence (1998) 52 ALD 579; [1998] AATA 645

Bull v Attorney-General (NSW) (1913) 17 CLR 370; (1913) 14 SR (NSW) 179; (1913) 30 WN (NSW) 205b; [1913] HCA 60

Zangzinchai v Milanta (1994) 53 FCR 35; (1994) 125 ALR 265; (1994) 35 ALD 709

Commonwealth v Connors (1989) 86 ALR 247; (1989) 17 ALD 313; (1989) 10 AAR 395

REASONS FOR DECISION

2 December 2005                 Senior Member B J McCabe

introduction

1.      Mr Mark Watson served in the air force (the RAAF) between 1951 and 1956. He claims his back was injured in an accident at work on 8 January 1954. He did not make a claim for compensation until 29 January 2004. The Military Rehabilitation and Compensation Commission (the MRCC) rejected the claim. Mr Watson has asked the Tribunal to reconsider that decision.

2. Section 124 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) says a person who claims compensation in respect of an injury, loss or damage arising before the SRC Act commenced may nonetheless recover under the SRC Act if compensation would have been payable under the legislation that was in force at the time the claim arose. The Act in force in 1954 was the Commonwealth Employees Compensation Act 1930 (the CEC Act). The MRCC says Mr Watson cannot recover under the CEC Act because he did not give notice and file a claim as required in s 16 of that legislation. The respondent goes on to say the Tribunal should not use its discretion to waive the requirement because of prejudice to the Commonwealth.

3.      The respondent has asked for a hearing of jurisdiction to determine whether or not it is required to face the substantive claim. Mr Clark represented the MRCC at the hearing. Mr Watson appeared in person. The T documents and a statement from Mr Paul Ontong outlining the prejudice to the Commonwealth were exhibited, along with several other documents.

the factual background

4.      Mr Watson was an aircraft technician. At the time of his injury, he was based at Laverton airfield. On 8 January 1954, he was working on the wing of a Dakota DC‑3 aircraft. Apparently he had his arm extended inside the wing where he was engaged in the process of removing the split pins from the control cable fork-end mechanism. Mr Watson confirmed an unusually large number of technicians were working on the aircraft at the time because the Dakota was part of the Queen’s flight. It was to be used during the course of Her Majesty’s visit that year. Mr Watson said the cockpit would ordinarily be sealed while he carried out his work. On this occasion, someone was in the cockpit. The occupant of the cockpit inadvertently caused the flaps of the aircraft to operate. The flap mechanism jammed the applicant’s arm against the main-plane members. He said it also passed over his back. He cried out. It took some time to free him from the contraption. He sustained visible injuries to his hand and arm although he claimed he felt battered all over. He was taken to hospital where he was treated. An x-ray was taken of the arm and hand, but no damage was found. He was released from hospital with his arm in a sling and given light duties while he healed.

5.      A report was filed on 29 January 1954 in connection with the incident. The report is reproduced in the T documents at T10, pp40-41. It includes a statement from the applicant describing the incident, a report on the applicant’s injuries from the medical officer and the opinion of the commanding officer. The medical report refers to an arm and hand injury. The commanding officer’s remarks address whether or not the incident was the product of negligence or misconduct. He decided that no further action should be taken.

6.      The applicant did not file a claim for compensation in respect of his arm and hand injury. He said those conditions improved. But he says he started to suffer from dizzy spells. He said he would sometimes feel like passing out after physical activity. He did not experience any back pain at the time. He says he complained to RAAF medical personnel on many occasions. They ultimately concluded he had psychological problems: see document T5, p27.

7.      Mr Watson was discharged from the RAAF at his own request in 1956. His service medical records include a questionnaire filled out by the applicant prior to discharge: document T5, p30. The applicant pointed out in the hearing that he had answered “yes” to the question about persistent disabilities arising out of an injury he sustained during service. He says that answer referred to the ongoing problems with dizziness. He says he did not (and does not now) suffer from psychological problems. He says the RAAF was kept fully informed of the symptoms of the condition in respect of which he now makes a claim.

8.      Mr Watson said he continued to suffer intermittently from the dizziness after his discharge. He said the problem persisted, but it was not too serious and only really bothered him when he played sport. (He was a keen badminton player.)

9.      The applicant finally saw a doctor about the condition in around 1960. He says he saw a number of other doctors over the years. He said they all asked about any trauma to the spine. They took x-rays and were unable to identify any abnormalities. He says the problem was finally discovered in 1984 when a doctor commissioned x‑rays lower down on his spine. Mr Watson said the doctor discovered crushed vertebrae that were probably the product of a trauma. The applicant confirmed the only trauma he could think of was that occasioned by the incident in the wing of the Dakota in 1954. He recalled that the mechanism that crushed his arm also passed over his back.

10.     Mr Watson said he did not make a claim for compensation in 1984 because he assumed after talking to someone (from the RSL, he thinks) that he had left his claim too late. He says he filed his claim in 2004 after obtaining better advice, and in the interests of setting the record straight.

the legislation

11.     Section 16(1) of the CEC Act provides that the Commissioner may only accept a claim for compensation in respect of an injury:

·     if notice of the accident has been served on him as soon as practicable after it happened; and

·     the claim for compensation is made within six months of the accident and before the applicant left the service of the Commonwealth.

12.     Section 16(1) includes two provisos. The first says the Commissioner may still consider a claim where the notice requirements have not been complied with if the inadequacy does not prejudice the Commonwealth and “was occasioned by mistake, absence from Australia or other reasonable cause”. The second proviso says a failure to make a claim as required will not be fatal if the failure “was occasioned by mistake, absence from Australia or other reasonable cause”.

13.     Section 16(2) says the notice of injury required under s 16(1) must include “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”.

14.     The respondent says the applicant did not file a notice for the purposes of s 16(1) because the notice he did file only referred to the arm injury. It did not refer to a back injury. In those circumstances, the MRCC says the notice is defective and should be ignored. Mr Clark, for the respondent, also argued the applicant’s claim must fail because of the obvious prejudice to the Commonwealth if the case were to proceed after 50 years. He referred to Mr Ontong’s statement describing the serious evidentiary difficulties the MRCC would face in trying to deal with the claim. I accept Mr Ontong’s evidence in this regard: the Commonwealth would almost certainly have a difficult time responding to the applicant’s claims given the passage of time, the loss of records and witnesses and the dimming of memories.

15.     The fate of the application depends on whether the notice included in the T documents at T10, pp40-41 satisfies the requirements of s 16. I think it does. Section 16(1) refers to the need to file an accident report. The report in the T documents describes the accident and its cause. The employer was put on notice that someone was injured in an accident and considered whether to undertake a further investigation into what transpired that day; it chose not to make further inquiries: cf Muras and Department of Defence [1998] AATA 645.

16.     I acknowledge s 16(2) refers to a “Notice in respect of an injury”, but the sub-section does not go on to require information about the injury. It focuses instead on the need to describe the accident which caused the injury. The respondent’s predecessor has been provided with such a description, albeit that the authorities did not appreciate the injuries resulting from the accident may have been more extensive than it appeared in 1954. Any ambiguity that arises out of the words of s 16(2) ought to be resolved in favour of the applicant given the beneficial nature of the legislation: see Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 per Isaacs J; see also Zangzinchai v Milanta (1994) 125 ALR 265 at 272-273 per Burchett J.

17.     It only remains to be considered whether the applicant’s failure to file a claim for compensation in a timely fashion was the product of “mistake, absence from Australia or other reasonable cause.”

18.     There is no suggestion the applicant was absent from Australia. The applicant’s failure to file a claim for compensation prior to 1984 can be attributed to his ignorance of a right to compensation in respect of the condition. (The applicant knew he had a condition, even if he did not know it was connected to his service.) The cases make it clear that ignorance of an entitlement to compensation is no excuse under the legislation: see, for example, Muras at paragraph 20 per DP McMahon; see also Commonwealth v Connors (1989) 86 ALR 247 at 251-252 per Northrop and Ryan JJ. After 1984 he might be able to argue that his failure to claim was the product of a mistake engendered by bad advice as to his rights – but it was probably too late to make a claim by that point in any case.

conclusion

19.     The Tribunal does not have jurisdiction to hear and determine the applicant’s claim because the applicant did not comply with the requirements in s 16 of the CEC Act.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Date of Hearing  24 November 2005
Date of Decision  2 December 2005
The applicant appeared in person.

The respondent was represented by Mr Clark of counsel.