Williams and Comcare
[2004] AATA 8
•9 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 8
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/413
GENERAL ADMINISTRATIVE DIVISION )
Re CHRISTOPHER WILLIAMS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date9 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)......................
RG Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – appropriateness of treatment for disease prior to commencement of Safety, Rehabilitation and Compensation Act 1988 – transitional provisions – notice not given as soon as practicable under Commonwealth Employees’ Compensation Act 1930 – Commonwealth prejudiced by want of notice – want of defect of notice not due to mistake or other reasonable cause – failure to make claim within specified period – failure to make claim not due to mistake or other reasonable cause - notice not given as soon as practicable after applicant first becoming aware of disease - failure to make a claim within six months of first becoming aware of disease
Commonwealth Employees’ Compensation Act 1930 ss 4, 9, 10, 16
Safety, Rehabilitation and Compensation Act 1988 s 124
Banks v Comcare [1996] FCA 382
Re Buttfield and Comcare [2001] AATA 335
Comcare v Luck (1999) 29 AAR 403
Commonwealth v Connors (1989) 86 ALR 247
Re McCarthy and Comcare [2002] AATA 5
Re Harbutt and Department of Defence (1998) 51 ALD 159
Re Muras and Department of Defence (1988) 52 ALD 579
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Re Siemsen and Comcare [1999] AATA 871
Secretary, Department of Defence v Gorton (2000) 98 FCR 497
Telstra Corporation v Roycroft [1997] FCA 774REASONS FOR DECISION
9 January 2004 Mr RG Kenny, Member Background
1. On or about 2 April 2002, Christopher Williams (the applicant) lodged a “Claim for Rehabilitation and Compensation” in relation to “depression”, contending that the condition had developed as a result of failure by the Australian Army to treat him for a psychiatric condition which he referred to as becoming manifest while he was serving in Malaya.
2. On 13 January 2003, a delegate with the Military Compensation and Rehabilitation Service (MCRS) determined that the claim should be disallowed and, on 18 March 2003, another MCRS delegate made a reviewable decision which affirmed that determination and also determined that the requirements for timely notice and claim had not been complied with.
3. On 13 May 2003, an application for review of that decision was received by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Appearances
4. The applicant was represented by Mr D O’Gorman of Counsel. Comcare (the respondent) was represented by Mr C Clark of Counsel.
5. The following material was tendered and taken into evidence:
Exhibit 1 the documents prepared in accordance with section 37 of the AAT Act (“T” Documents – T1 to T23);
Exhibit 2 a statement, dated 22 July 2003, by the applicant;
Exhibit 3 a statement, dated 7 July 2003, by the applicant; and
Exhibit 4 a report, dated 28 May 2003, by Dr Bruce Lawford, consultant psychiatrist.
6. Also in evidence was an affidavit, dated 4 November 2003, completed by Paul Ontong, Director of Appeals with MCRS. The matter had been adjourned to enable this material to be obtained and to enable Mr O’Gorman to cross-examine Mr Ontong. However, the Tribunal was advised that cross-examination was no longer necessary and the affidavit was taken into evidence as Exhibit 5.
Issues and Legislation
7. The Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries or diseases for nominated classes of Commonwealth employees, including those who served in the Australian Army, where the injury occurred after the commencement date of the 1988 Act. This was 1 December 1988. The 1988 Act also contains transitional provisions which pertain to injuries or diseases which are claimed to be associated with periods of employment prior to that date. In that regard, section 124 of the 1988 Act, insofar as relevant, reads:
“Application of Act to pre-existing injuries
(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 1971Act - under the 1930 Act as in force when the injury, loss or damage was suffered; or …
…
(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.”
8. The 1930 Act, as referred to in that provision, is the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act). The applicant claimed that his psychiatric condition developed as a result of inappropriate treatment being provided to him during his service in the Australian Army which extended from 10 July 1967 until 5 January 1970. That period is embraced by the 1930 Act.
9. Under the 1930 Act, in order for the Commonwealth to be liable to pay compensation to the applicant, the injury or disease must have arisen out of or occurred in the course of employment with the Commonwealth. However, a time-frame for giving notice of and for making claim for the injury or disease is set down in section 16 of the 1930 Act which, in so far as relevant, reads:
“(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; …
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.
(4)In the application of this section, in accordance with section 10 and sub section (2) of section 4, of this Act, in relation to a claim in respect of an employee who is suffering from a disease …
(a)notice of the accident shall be deemed to have been served in accordance with the provisions of subsection (1) of this section if notice of the contracting of the disease was served on the Commissioner –
(i)…
(ii)in any other case - as soon as practicable after the employee first became aware that he was suffering from the disease …
(b)a claim for compensation shall be deemed to have been made within the period required by subsection (1) of this section if the claim was made –
(i)…
(ii)in any other case - within six months after the employee first became aware that he was suffering from the disease …”
10. In subsection 4(1) of the 1930 Act, the term disease is defined as follows:
“disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development and also includes the aggravation, acceleration or recurrence of a pre-existing disease.”
11. Section 10 of the 1930 Act makes provision for compensation from diseases and reads:
“(1) Where:
(a)an employee is suffering from a disease is thereby incapacitated for work; …
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.”
12. No submissions were made to the Tribunal in relation to whether or not any failure by the Commonwealth to provide appropriate treatment to the applicant for a psychiatric condition would be embraced by the terms of section 10 of the 1930 Act. It was agreed by the parties in this matter that the issue for the Tribunal to determine was whether the circumstances of the applicant meet the requirements of section 16 of the 1930 Act in relation to the timeliness of the notice and claim. In the event that this provision is not satisfied, the applicant’s claim will not be considered under the Commonwealth compensation legislation.
Applicant’s Evidence
13. The applicant made a statement on 22 July 2003 (Exhibit 2) which reads:
“1.I make this Statement in support of my Appeal to the Administrative Appeals Tribunal.
2.The matters herein relate to what the claim that was submitted at the time that it was.
3.At the time that I left the Army all I knew was that I had a lot of gender identification problems which had caused me a lot of psychological pain.
4.Therefore there was no consideration given to me as to whether or not I could put a claim against the Army for their attitude to my problem which was reflected in the way they had failed to adequately treat me.
5.After I left the Army it was many years before I sought treatment for my problems.
6.It was only after I was in the care of Dr Lawford that he, being aware of all the circumstances in relation to my problems, and what had happened in the Army, was of the belief that I required advice from appropriate people.
7.This resulted in my making an appointment with Gilshenan and Luton, my legal representatives and speaking to Jim Wall.
8.It was around 2 April 2002 that I was advised by Jim Wall that it would be in my best interests to submit a claim to the Military Compensation and Rehabilitation Service on the basis that I had a case for them to answer.
9.I submitted that claim on or about that time to Gilshenan and Luton.
10.Therefore I was ignorant of my entitlement under the Military Compensation and Rehabilitation Service but furthermore I was also mistaken as to the existence of my being able to submit the claim.”
14. In another statement, dated 7 July 2003 (Exhibit 3), he said:
“1.I make this Statement in support of my Appeal to the Administrative Appeals Tribunal in relation to Military Compensation and Rehabilitation Service matter of my psychiatric condition.
2.I have read the medical report completed by Dr Robert Athey on 26 December 2002.
3.There are several errors that need to be corrected.
4.On page 2 of his report Dr Athey has indicated ‘Mr Williams stated that he had been plagued with psychiatric difficulties ever since his time in the army and that he considered the onset of his illness was on account of his difficulties experienced in the army and his belief that they were mishandled’.
5.What I had indicated to Dr Athey was that these difficulties I had first appeared whilst I was serving in Malaysia and continued from then on.
6.As indicated earlier, the army failed to give recognition that I had a problem that needed correction at all.
7.I sought treatment for my condition whilst in Malaysia.
8.Their response was to fob me off and not arrange for me to see a doctor until my return six months later in Australia.
9.When I finally got to see this specialist it turned out that he was not even a psychiatrist.
10.Therefore I would say and still say that the army had inappropriately approached my problem with flagrant disregard.
11.Further on that page Dr Athey has indicated ‘he informed me that he had a long standing history of gender difficulties preferring to cross dress for sexual excitement’.
12.As indicated and still is indicated, I had told Dr Athey that it was not until 1968 in Malaysia that I had these difficulties first emerge.
13.Further, Dr Athey on the same page indicated ‘he was offered discharge on medical grounds which he took’.
14.That could not be further from the truth. I was discharged on the grounds that I was an unsuitable soldier and at that time I was offered no discharge on medical grounds.
15.At the bottom of page 2 it should be noted that Dr Athey has indicated ‘he has required ongoing psychiatric treatment and has currently been treated with the anti-depressant drug Avanza 60 milligrams per day; he claims that this drug keeps his symptoms of depression and anxiety in control’.
16.It should be noted that I am presently on 90 milligrams per day and it seems to be losing its potency.
17.On page 4 Dr Athey reports ‘he did try homosexuality for a while but preferred sex with adult women and as stated has been married and remained married for thirty years’.
18.I have never tried homosexuality.
19.On page 5 once again under ‘Current Medication and Treatment’, Dr Athey has incorrectly listed that I was on the drug Avanza on a dose of 60 milligrams per day.
20.As stated earlier I am presently on 90 milligrams per day.
21.Further in that same report he stated ‘he also sees his psychiatrist regularly’.
22.What Dr Athey has failed to list there is that I also see a psychologist quite regularly.
23.Under the heading of ‘Past Medical/Psychiatric History’, Dr Athey has indicated ‘his major medical complaints as being his long standing anxiety and depression with recurrent overdoses; he also has low testosterone levels and was found to have a high prolactin level, but the reason for this has not been established’.
24.Contrary to that statement it has been established that depression can lead to an increase in prolactin levels. This has been stated to me by Professor Strackosh at Greenslopes Private Hospital.
25.I receive injections of testosterone every three weeks (very low levels of it).
26.On page 6 under ‘Mental Assessment Presentation’ Dr Athey describes me as having grey eyes. That is correct. My eyes have always been blue.
27.On page 7 under ‘Review of File’ in the last paragraph it stated ‘it is worth noting that Mr Williams claims his discharge medical file dated 5 January 1970 was not filled out by himself’.
28.That is true inasmuch that I did not complete the form even though I did sign it.
29.Under the heading of ‘Summary and Assessment’ in the third paragraph, Dr Athey has stated ‘he was treated for his depression in the army and his transvestism was known to the army’.
30.This is a terribly inaccurate statement inasmuch that my transvestism was not understood by the medical staff who I had approached for appropriate treatment whilst I was in Malaysia.
31.Irrespective of the answers that Dr Athey has given, there has been a flagrant disregard to the obvious question that needed to be asked and wasn’t.
32.The question that Dr Athey should have been asking was ‘were there indications that I had been denied proper treatment for my condition while I was in the service?’.
33.Further it should have been asked ‘had that proper treatment been given in a timely fashion, would my condition have been as bad as it ended up?’.
34.I believe the strength of my case relies on the fact that the army failed to give me adequate medical treatment which I believe they had a duty of care to provide.
35.I am presently under the treatment of Dr Bruce Lawford.”
15. In his oral evidence to the Tribunal, the applicant said that he had not been aware of whether he could make a claim for compensation and he agreed that he was ignorant of any compensation scheme. He said that he had been treated by a psychiatrist, Dr Bruce Lawford, for about two years but then agreed he saw Dr Lawford for the first time in the year 2000 and that, on the first or second visit to Dr Lawford, he was provided information by him about the making of a claim for compensation but that he waited a “long time”, which stretched over some five or six consultations with Dr Lawford, before he took any steps to make a claim. He said that, first of all, he went to the Vietnam Veterans’ Advocacy Service but was unable to get any assistance from them and, eventually, went to see a solicitor and this resulted in a claim being lodged in April 2002.
16. The applicant was referred to another report of Dr Lawford, dated 11 April 2002, where Dr Lawford stated that he had a history of depressive illness which lasted a period of three years after his discharge from the Army (T10). The applicant said that, after he got out of the Army, he had lived a disjointed life for a period but then met his present wife whom he married in 1973. He said that, thereafter, he was able to confide in his wife and obtain support from her. He said that he was able to explain to her the various things that occurred to him during his Army service, including his psychiatric problems and what he described as his deviant behaviour. He said that he had provided her with all that information by about 1974 when his daughter was born.
17. The applicant was referred to an undated statement (T4) and he identified it as a document that he prepared at the time when he first saw Dr Lawford. He agreed that, in that statement, he had referred to his knowledge at the time of his discharge from the Army that his mental well-being had been diminished at that time. He also agreed that he stated in that letter that he had not attempted in the past to apply for compensation owing to a sense of guilt that he felt because he had let the Army and his mates down. In his evidence, he confirmed that this sense of guilt was a reason for his not making a claim for compensation.
18. The applicant agreed that he had served in Malaysia from October 1968 to May 1969, that there was a period during that service when he was absent without leave (AWOL) and that there were periods before he served in Malaysia that he had also been AWOL. He said that these periods coincided with occasions when he needed to be away from the Army because of his desire to dress as a woman. He described this as his deviant behaviour.
19. The applicant said that he had gone to a Regimental Aid Post (RAP) whilst in Malaysia to seek assistance and that the corporal he saw laughed at him and did not understand his problem. He agreed that there was no record of that visit. He said that he also went to an Army medical officer within a week of returning to Australia in May 1969 and asked for a referral to a psychiatrist. He said that there was no psychiatrist available at the time and he also agreed that there was no record of this visitation with the medical officer.
20. The applicant said that there was a long period when he was AWOL from September to December 1969 and that this was a period when he was seeking out people with similar interests to himself and that he had found a medical practitioner who was willing to treat him with female hormones because, at that time, he was interested in becoming a woman.
21. The applicant said that he had attempted to commit suicide on various occasions and had been hospitalised. He also said that he was placed in the psychiatric ward of Concord Hospital just before his discharge but he said that he absconded from the hospital because he was fearful that the military police were going to return him to jail upon his discharge.
22. The applicant agreed that he was having problems with his girlfriend in 1969 because she had become aware of his transvestite tendencies. He denied that he had ever intended to marry her but said that she had talked him out of going to South Vietnam and that he regretted this because he felt that he let his mates down.
23. The applicant said that he went to see consultant psychiatrist Dr Orm Orford in the late 1980s and had been referred to him by Dr S Weinrauch of the Eagleby Medical Centre. He said that he had discussed with Dr Orford matters relating to the Department of Veterans’ Affairs but he said that he did not instruct Dr Orford to write to the Department on his behalf. He said that he was not making any claims at that time. He said:
“I didn’t think my circumstances would warrant compensation. I thought it was a personal thing and nothing to do with the Army.”
24. He said that he had gone to see Dr Orford because he was having problems in maintaining employment and was also feeling depressed at the time and was abusing alcohol. He said that he made no claims in respect of compensation until after he had seen Dr Lawford.
25. The applicant was referred to his discharge history questionnaire which was signed by him on 5 January 1970. He agreed that he had signed the document but said that he did so under duress and that the contents of the document had been covered by a piece of paper when he signed it. He agreed that he had made reference to the questionnaire in the statement that he made on 7 July 2003 and he agreed that he had not referred in that statement to the document being covered by a piece of paper. When asked why this was so, he said that he must have forgotten about it at the time.
Paul Ontong’s Evidence
26. In his affidavit (Exhibit 5), Mr Ontong said that he had examined the T documents and believed that the service records contained in T5 and T6 were the only such records still extant in relation to the applicant. He referred to an absence of any record of any contact between the applicant in the Army medical authorities in respect of any alleged psychiatric or psychological condition before 31 December 1969 when he was admitted to hospital and was diagnosed with a personality disorder.
27. Mr Ontong expressed the opinion that the period of some 32 years which had elapsed between when the applicant left the Army and when he lodged his claim for compensation had created a situation where the Commonwealth would suffer great prejudice in respect of processing any claim in relation to the matter. He said:
“Since the respondent will need to investigate whether or not the treatment given to the applicant was adequate in time, it will be necessary for the applicant to supply an accurate and reliable history of the symptoms which he was alleged to be suffering on 31 December 1969. The long passage of time since would make such an exercise inherently unreliable.
Whilst it may be possible to locate medical practitioners who treated or came into contact with the applicant during the course of his contact with the Army medical authorities, it would be simply untenable to suggest that such medical staff could reliably recall the circumstances of that treatment, or reliably comment upon any assertion that their treatment of the applicant at the time was not appropriate in all the circumstances.
The medical records reveal that the applicant was having personal problems outside of his Army workplace; that is, there are frequent references to girlfriend or fiancé problems. It is submitted that in view of the long period of time which has elapsed, it would be virtually impossible to reliably investigate this aspect of the applicant's life at that particular time.”
28. Mr Ontong continued by referring to the long period of time which had elapsed and the various life events and stressors which the applicant would no doubt have experienced since his time in the Army. He said that the respondent could not reasonably seek to investigate this long period of time to assess what those life events were and what impact those events may have had upon the applicant.
Applicant’s Submission
29. Mr O’Gorman provided a written submission to the Tribunal in which he conceded that the applicant had experienced a depressive disorder prior to joining the Army but submitted that the failure of Army personnel to provide him with appropriate treatment for a psychiatric condition resulted in an aggravation of it. In that statement, he made reference to principles relevant to the extension of time for making application for the review of a decision. However, those principles were not referred to by him in his oral submission where he concentrated on the issues relating to the time-frames relating to the initial notice given and claim made by the applicant in 2002.
30. Mr O’Gorman submitted that the respondent would not suffer prejudice as a result of the timing of the lodgement of the claim and notice because there was no evidence before the Tribunal that it had lost the opportunity to verify and properly investigate it. He submitted that it was not uncommon for the respondent to be required to review medical files completed years earlier and there was no evidence that the respondent had lost the opportunity to speak to relevant personnel who completed medical records at the relevant time.
31. Mr O’Gorman submitted that the applicant only became aware of his right to make a claim for compensation after he had seen Dr Lawford. He referred to the occasion when he had spoken with Dr Orford and his evidence that, at that time, he considered that his problem was a “personal thing” and had “nothing to do with the Army”.. He submitted that, within a relatively short time of learning from Dr Lawford of his right to make a claim for compensation, he did so. He said that there was a period when he had spoken with people from the Vietnam Veterans’ Counselling Service but, when he was unable to get assistance there, he approached his current solicitor after which the matter had advanced quickly.
Respondent's Submission
32. Mr Clark submitted that the matter before the Tribunal was not one which involved a consideration of the substantive merits of the applicant’s claim as might be the case if he were seeking an extension of time for lodging a review claim. He submitted that the matter turned on the words of section 16 of the 1930 Act and, in particular, the proviso in that provision.
33. Mr Clark referred to the fact that the applicant had been hospitalised during his service but submitted that this did not constitute any form of notice to the respondent. He submitted that the thrust of the evidence of the applicant was that he was ignorant of his right to make a claim for compensation and he submitted that, in that situation, he did not fall within the proviso because ignorance was not one of the grounds in the provision. He also said that some of the evidence suggested that the applicant may have been aware of his right to make a claim for compensation but that he chose not to and that one of the reasons for this was the sense of guilt he had about his actions during his service. He submitted that there was evidence that the applicant knew, while in the Army, that he had a problem, that he had a grievance with the Army as the Army had failed to provide him with any form of assistance at the time. He referred to the statement by Dr Lawford that the applicant’s symptoms had resolved about three years after his service was completed and submitted that, in that situation, the applicant should be considered as being capable of taking action to address the grievances which he clearly was aware of at that time.
34. Mr Clark also submitted that the respondent would be prejudiced by the length of time between the applicant’s service and the lodgement of his claim in 2002. He submitted that it would be almost impossible now for the matter to be properly investigated by the Commonwealth. He also referred to the applicant’s acknowledgment that there was an absence of service records concerning his medical consultations about his psychiatric problem.
Consideration
35. Section 16 of the 1930 Act makes provision for the time-frames within which certain steps must be taken as preconditions to the operation of the Commonwealth compensation scheme. That section distinguishes between an injury and a disease, with subsection 16(1) relating to an injury and subsection 16(4) relating to a disease. However, in Secretary, Department of Defence v Gorton (2000) 98 FCR 497, Hill J held that the whole of section 16 had to be read as applying in the case of a disease (at 512 and 517). In this case, the evidence of Dr Lawford and of Dr Athey is that the applicant suffers from depressive disorder and I am satisfied that this is the appropriate diagnosis of the condition in the applicant's case and that the condition constitutes a disease as that term is defined in subsection 4(1) of the 1930 Act.
36. Pursuant to sub-section 16(1) of the 1930 Act, notice must be served as soon as practicable and the claim must be made within six months. Those requirements are ameliorated by the provisos which are set out in paragraphs 16(1)(i) and (ii) of the 1930 Act. Further, they are qualified by the terms of sub-section 16(4) of the 1930 Act which deems that the requirements will be met if the notice was given as soon as practicable after the applicant first became aware he was suffering from the disease and the claim was made within six months after he first became aware that he was suffering from the disease. The application of section 16 is not without difficulty and, in part, this is due to the terminology used in the provision. Initially, the notice provision related only to injuries but, after amendment in 1959 through the addition of subsection 16(4), it was extended to diseases. At the same time, subsection 4(2) was enacted. It reads:
“In the application of the provisions of this Act to and in relation to an employee to whom section 10 of this Act applies, any reference in those provisions to personal injury by accident arising out of or in the course of an employee's employment by the Commonwealth shall be read as including a reference to a disease due to the nature of the employment in which the first-mentioned employee was engaged by the Commonwealth.”
37. In Secretary, Department of Defence v Gorton (above), reference was made to the application of section 16 to diseases and Hill J said (at 512):
“While the problem of applying s 4(2) to the case of a disease to which reference is made above still remained, it seems to me clear that the legislative policy was that thereafter disease claims were to be not admitted unless the relevant notice was given and in the case of incapacity from disease the notice was required to be given within six months of the employee becoming away that he was suffering from the disease. It is clear, beyond doubt, that the insertion of subs (4) had the consequence that the whole of s 16 had to be read as applying to the case of disease and that this was to be achieved by the application of s 4(2) of the 1930 Act.”
38. As I understand the operation of section 16 of the 1930 Act, if the deeming components in subsection 16(4) are not met, the claim may still be admitted for consideration if the provisos in paragraphs 16(1)(i) and (ii) are satisfied in that the Commonwealth is not prejudiced or there was explanation to indicate that the lack of timeliness was due to a mistake, absence from Australia or other reasonable cause.
39. In this case, the applicant's service ended in 1970 and the document which comprised the notice and the claim was not lodged with the respondent until 2002. I have considered the documentation which was prepared while the applicant was still serving to determine whether or not that documentation, in particular, the entries in the hospital records in December 1969, might be sufficient to constitute a notice for the purposes of subsection 16(1) of the 1930 Act. The applicant was hospitalised at RGH Concord on 31 December 1969 where he was noted to have been recently AWOL and as having made previous suicide attempts. In the history he gave, reference is made to his transvestitism, to problems regarding sexual identity, to emotional deprivation in his childhood as well as recent difficulties with his girlfriend. The notes indicate that the applicant was to undergo psychiatric examination. However, this did not happen at that time as he voluntarily discharged himself from the hospital on 1 January 1970. This was followed by another period of his being AWOL and he was discharged from the Army on 5 January 1970 with the reason for that action being given as “having suffered frequent convictions for absence without leave”.
40. The requirements in relation to a notice for the purposes of the 1930 Act are set out in sub-sections 16(2) and (3) thereof and these provisions require particulars of the person to be included in the notice as well as particulars, in ordinary language, of the cause of the injury and the time when it happened. The evident purpose of that provision is to ensure that, not only is the respondent made aware of the fact of the injury, but also of the background to it so that some investigations might be undertaken. In Re Siemsen and Comcare [1999] AATA 871, the Tribunal held that an entry in service medical records could constitute notice of an injury under the 1930 Act but, there, the Tribunal found that the records disclosed the information required by sub-section 16(2) of the 1930 Act. That is not the situation with the applicant in this case as no reference is made to any incidents in the applicant's Army service which may have precipitated any psychiatric condition and, in that situation, I am satisfied that the entries in the hospital records do not constitute notice for the purposes of section 16 of the 1930 Act: see, also, Re Muras and Department of Defence (1988) 52 ALD 579 at 582.
41. Notice was not given to the respondent during the applicant’s service and it is not disputed that no other form of notice was provided until the claim for rehabilitation or compensation was lodged in April 2002. I am satisfied that this document can be construed as being both a notice and a claim for the purposes of section 16 of the 1930 Act: see Comcare v Luck (1999) 29 AAR 403 at 417, Re Buttfield and Comcare [2001] AATA 335 and Re McCarthy and Comcare [2002] AATA 5. Nonetheless, as noted below (paragraph 48), the lodgement time-frames are differently expressed in so far as it constitutes a claim as compared to it as constituting a notice.
the deeming provision: sub-section 16(4) of the 1930 Act
42. Clearly, the lodgement of the claim form in April 2002 was outside of the time-frame referred to in sub-section 16(1) of the 1930 Act. Nonetheless, that, alone, does not preclude a consideration of the claim under that provision. It may still be considered if the terms of sub-section 16(4) are met. That provision distinguishes between the notice and the claim and deems the notice to have been made in a timely manner if it was served as soon as practicable after the applicant first became aware he was suffering from the disease and, further, it deems the claim for compensation to have been made in a timely manner if it was made within six months after the applicant first became aware that he was suffering from the disease.
43. As I understand the submission of Mr O'Gorman, the applicant became aware that he was suffering from depression when he first saw Dr Lawford and the requirements of sub-section 16(4) were met in that the lodgement occurred as soon as practicable thereafter.
44. In his evidence, the applicant conceded that he had seen Dr Lawford in September 2000 and became aware at that time or on his next consultation that he was suffering from depression and was able to make a claim for compensation. He also conceded that he did not make the claim immediately but, rather, continued to see Dr Lawford for five or six further consultations before he approached the Vietnam Veterans’ Advocacy Service and, eventually, a solicitor who assisted him in making his claim in April 2002. In the event that his first, or even second, consultation with Dr Lawford was the first occasion that he became aware of his depression, it might be accepted that notice of his condition was given as soon as practicable thereafter in the sense that he sought advice from one counselling organization and, when unsuccessful, brought the matter to the attention to his present solicitors.
45. The report of Dr Orford described the applicant as being depressed when he saw him in 1988 and 1990 but Dr Orford’s report does not provide any formal diagnosis of that condition and he was not called to provide evidence to clarify the terms of his report. I also note the reference by the applicant, in the document he completed before seeing Dr Lawford (T4), to his being aware that he had a form of mental disorder while he was still serving. The notes from Concord hospital make reference to a personality disorder but a psychiatric analysis was not conducted at that time and there is no evidence to suggest that the applicant was aware that he was suffering, as Dr Lawford has indicated retrospectively, from depression at that time.
46. I also note that the report of Dr Orford referred to the applicant as having requested that it be written for the purposes of an application to the Department of Veterans’ Affairs. In his evidence, the applicant denied that he did this, though he conceded that he had discussed the Department with Dr Orford. The reference by Dr Orford was not supported by evidence from the respondent of any claims made by the applicant at any time before 2002 and, as noted above, Dr Orford did not give evidence.
47. In the event, I am satisfied that the applicant first became aware that he was suffering from depressive disorder when he saw Dr Lawford in 2000 and that the notice of this was provided to the respondent as soon as practicable thereafter.
48. Whilst it is the case that the single document made by the applicant is construed as being both a notice and a claim, sub-section 16(4), as noted above, distinguishes between the time-frames relevant to the notice and claim. Whilst the notice has been given as soon as practicable after the applicant became aware of his condition, that does not answer the requirement that the claim must be made within six months after he first became aware of the condition. It was more than six months after first becoming aware that he had depressive disorder in 2000 that the claim was lodged in April 2002. I am satisfied that this requirement as provided for in sub-paragraph 16(4)(b)(ii) of the 1930 Act is not met the applicant.
the provisos in sub-section 16(1) of the 1930 Act
49. Although part of sub-section 16(4) of the 1930 Act is not met, as I understand the decision in Gorton (above), sub-section 16(1) of the 1930 Act must also be considered in relation to the applicant's disease. Two provisos are given in that provision. The first proviso, in sub-paragraph 16(1)(b)(i) of the 1930 Act, relates to notices and enables a matter to be considered if any want of timely notice does not prejudice the respondent or if it was occasioned by mistake, absence from Australia or other reasonable cause. I have determined that the notice was given in a timely manner because of the deeming effect of sub-paragraph 16(4)(a)(ii) of the 1930 Act. The second proviso, in sub-paragraph 16(1)(b)(ii) of the 1930 Act, relates to claims and enables a claim to be considered if any failure to claim within the nominated period was occasioned by mistake, absence from Australia or other reasonable cause. The proviso relating to the claim, unlike that relating to the notice, does not make reference to prejudice to the Commonwealth.
mistake
50. Commonwealth compensation legislation distinguishes between ignorance and mistake with only the latter being of relevance under the 1930 Act. The distinction between the two concepts was referred to in Telstra Corporation v Roycroft [1997] FCA 774 by North J who described the relevant authorities as establishing the following propositions:
“1. A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 of KB 982.
2. A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.
3. A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.
4. It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.”
51. His Honour went on to point out that there was a thin line between mistake and ignorance but said:
“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.”
52. In this case, the applicant conceded that he had been ignorant of any compensation scheme until he saw Dr Lawford. In that situation, the applicant would have been ignorant of his right to make a claim from the cessation of his Army service until 2000. However, there were inconsistencies in the applicant's evidence in that regard. He made reference to having feelings of guilt about the way he had behaved during his Army service and because he had not gone to South Vietnam. He said that his sense of guilt had acted upon him and that this also had a role to play in his not making an earlier claim. This would suggest that, rather than being ignorant of the capacity to make a claim, there was a conscious decision not to do so for personal reasons. Nonetheless, such a conscious decision does not constitute a mistake in relation to his capacity to make a claim.
53. No evidence was advanced or submission made in respect of any mistake in the period after the applicant became aware that he was suffering from depression.
54. On the evidence, I am satisfied that the lateness of the applicant’s lodgement of his claim was not due to mistake.
absence from australia
55. The issue of the applicant’s absence from Australia does not arise in this case.
other reasonable cause
56. As to any other reasonable cause for the applicant’s delay in giving notice or making a claim for his condition, there must be a nexus between the “reasonable cause” and the delay: see Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at 673, 674 and Re Harbutt and Department of Defence (1998) 51 ALD 159 at 163. Also, there must be evidence of something more than mere ignorance before reasonable cause will arise: see Commonwealth v Connors (1989) 86 ALR 247 at 252 and Re Harbutt (above) at 165.
57. Reference has been made, above, about the feelings of guilt that the applicant had as a result of his behaviour during his service and to the effect that this had on him in not making any claim against the Commonwealth. In Banks v Comcare [1996] FCA 382, the decision to make no claim was made consciously because the claimant believed that he was able to manage and Kiefel J said that it was difficult to accept that the proviso was intended to encompass a position where a person might later change his mind about making a claim because it then suited them to do so. Kiefel J said:
“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: see Black v City of Melbourne (1963) VR 34 at 38; Portland Harbour Trust (1963) VR 25 at 28.”
58. To the extent that the applicant made a conscious decision not to make a claim, this does not constitute reasonable cause for the purposes of section 16 of the 1930 Act.
59. Again, no evidence was advanced or submission made in respect of any other cause operating in the period after the applicant became aware that he was suffering from depression. The evidence was that he also became aware of his capacity to make a claim at that time and the delay was in the prosecution of that claim procedure through the agency of a veterans’ organisation and then, by the applicant’s solicitor.
60. In this case, I am satisfied that there was no evidence of reasonable cause for the lateness of the applicant’s claim for the purposes of section 16 of the 1930 Act.
prejudice
61. Although the issue of prejudice to the respondent is not specifically relevant to the matter of the claim in the proviso in sub-paragraph 16(1)(b)(ii) of the 1930 Act, I make the following observations in relation to prejudice.
62. In Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534, at 535, the following reference was made by the Tribunal to the purpose of the notice requirement as it appears in sub-section 53(1) of the 1988 Act which is not materially different from the provision under consideration in the 1930 Act:
“Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act.”
63. The statement by Mr Ontong refers to difficulties associated with attempting to investigate a matter which occurred more than thirty years ago. In this case, the applicant's contention is not that the circumstances of his service were the cause of the psychiatric condition with which he was subsequently diagnosed. Rather, it was that the Army had failed to provide him with appropriate treatment when he presented to medical practitioners towards the end of his service. An investigation into matters of that kind would require an analysis of any medical reports which related to treatment given to the applicant at that time. It was the applicant's evidence that he had made complaint about the problems that he suffered whilst he was serving in Malaya. There are no records of any such treatment during that period of his service. The applicant also said that he approached Army medical staff for further assistance within a short time of his return to Australia from Malaya. Again, there is no record of this. That absence of any contemporaneous medical records would mean that reliance would have to be placed upon information provided by medical staff who were in a position to treat the applicant towards the end of 1969. Even if it were the case that such personnel could be located, it is more probable than not that they would not be able to provide meaningful information about the applicant's circumstances some 30 years earlier. As noted above, the applicant was to undergo a psychiatric assessment when he was admitted to Concord hospital on 31 December 1969 but this was not done. I consider it to be material that, as noted above, that this was due to the applicant's voluntary discharge from the hospital.
64. Clearly, these matters present significant difficulties for the respondent and these are compounded by the continuing difficulties that the applicant has faced since his discharge from the Army. In that regard, I have noted the terms of the report by Dr Orford, dated 9 August 1990 (T7). There, Dr Orford said that he saw the applicant in February 1988 and in August 1990. He described the applicant as harbouring strong feelings of disgust for himself and as feeling that the future for him was bleak. He described the applicant as feeling agitated and frightened and as experiencing difficulty in coping with sudden demands. He referred to the applicant is being disoriented from reality in a manner significantly different from that of the average person and described him as being unable to hold down a job for any period of time, as having an increased anxiety level, low self-esteem and as continuing to engage in cross-dressing into woman's clothes. I am satisfied that the life experiences that the applicant has undergone since his discharge and the effects of these upon him would serve to exacerbate any difficulty faced by the Commonwealth in attempting to evaluate the quality of medical treatment provided to the applicant in 1969.
65. The respondent was not given the opportunity to investigate the matter in a timely manner and I am satisfied that it would be prejudiced if it were required to do so more than 30 years after the incidents of alleged causation occurred.
Decision
66. I am satisfied that the applicant does not meet the requirements of section 16 of the 1930 Act and, accordingly, the decision under review is affirmed.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 9 October 2003
Date of Decision 9 January 2004Counsel for the Applicant Mr O’Gorman
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Phillips Fox
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