Behan v Australian Telecommunications Corporation [1996] FCA 382 | Case summary

Judgment (7 paragraphs)

[1]

In March 1992 Mr Banks submitted a claim for compensation with respect to injury suffered to both his left and right ears resulting in hearing loss in the higher frequencies in both ears and mixed deafness in the left ear. Although the claim originally referred to an alternative cause, mumps or a condition similar to it called parotitis, which Mr Banks may have suffered towards the end of his military service, this was discounted in the hearing in the Administrative Appeals Tribunal. The focus was then on an incident in January 1954 when he was exposed to acute noise during army exercises which involved the firing of an anti-aircraft gun in close vicinity to him. He was at that time taking part in a military camp as a member of the Citizens' Military Forces, having completed his initial national service training in November 1952. His hearing loss was not diagnosed until February 1992, at a time when he had retired from employment. He had however been aware that he suffered some hearing loss, at least so far as it related to his left ear, since 1954 and shortly after the incident in question.

[2]

The original decision, confirmed by the respondent's delegate on 15 November 1993, was to deny liability for the claim on the basis that there was not sufficient evidence that Mr Banks' hearing was impaired in 1954. Further evidence was admitted before the Administrative Appeals Tribunal which determined that, whilst the decision under review should be set aside, the decision to be substituted was that the applicant's claim was out of time under s 16 of the Commonwealth Employees' Compensation Act 1930 and was therefore not to be admitted. The Tribunal arrived at that conclusion by determining preliminary questions as to whether there was any "other reasonable cause", within the meaning of the 1930 Act for the failure to give notice of the accident as soon as practicable after its occurrence and for the failure to make a claim for compensation within six months. The Senior Member constituting the Tribunal explained in his reasons that he was not offering a concluded view as to the merits or otherwise of the application. A perusal of the medical evidence reveals the need for findings were the matter to proceed further. Both medical experts seem to have accepted that an incident of the type in question may have caused some bilateral hearing loss. There was high frequency hearing loss in both ears. This would have occurred almost immediately and would not have deteriorated over the years. This accords with aspects of the applicant's evidence, to which I shall shortly refer, of awareness of some hearing loss immediately after the accident save that, in this regard, he spoke only of the left ear. The deafness to the left ear diagnosed in 1992 involved both the inner and middle ear. This "mixed" deafness was regarded as having been caused by a condition called otosclerosis which one doctor did not consider could be referrable to one occasion of acute noise exposure whilst the other thought that may have contributed to it. There were then potential difficulties for the Tribunal proceeding in the way it did, without concluding what condition the applicant suffered as a result of the incident in question. The course taken by the Tribunal, as appears from its reasons, was to assume, for the purposes of determining the preliminary questions, that the medical evidence established some level of injury in January 1954. In this process the Tribunal also appears to have assumed that the respondent was not contending that it suffered any prejudice by reason of the failure to give notice. The respondent however submits that in this respect the Tribunal was under a misapprehension and that prejudice was simply not adverted to because the case for the applicant was that he was able to show that, in each relevant respect, he had "reasonable cause" for his inaction. I shall refer to this aspect again shortly. It is necessary at this point to refer to the essential facts relating in particular to the applicant's knowledge of his condition as found by the Tribunal: · The applicant suffered the onset of extreme pain to his left ear on the occasion referred to in January 1954. The pain suffered was so intense that he almost lost balance. He was however, after a short time, able to resume his duties. · During this period the gun commander and crew were aware of what had occurred and tended to Mr Banks.

(b) in 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." The Tribunal concluded that notice should not be taken as having been given because of the knowledge of the army officer supervising the gun exercises at the time the injury was sustained or because the Army was aware that Mr Banks was later hospitalised. Accepting, for the purpose of the argument, that notification other than as provided by s16(3) might suffice, the Tribunal considered the knowledge was limited and observed, with respect to the period of hospitalisation, that the Commissioner could hardly be taken to have inferred that the symptoms for which Mr Banks was being treated resulted from the gun incident given the diagnosis of parotitis made. Neither of these findings or the conclusion drawn from them was the subject of dispute. And although the Tribunal adopted what, with respect, appears to me to be an erroneous construction of the requirements of the subsection concerning the notice provisions, namely that lack of prejudice may not be conclusive of this issue and that notice might be excused if a claim for compensation was made within six months, it nevertheless dealt with the facts relating to whether there was "other reasonable cause" for not giving notice and concluded that there were none, since the applicant during his hospitalisation very shortly after the accident made the causal connection between the symptoms he suffered and the accident which he was required to give notice of. Clearly enough, as the Tribunal had also found, there was no notice given "as soon as practicable" after the accident. The facts as found by the Tribunal would preclude a determination that the applicant suffered from any relevant mistake and there was no other reasonable cause shown to the satisfaction of the Tribunal. If acceptance of the claim for compensation turned upon whether notification of the accident, within time, could be excused the matter would have to be remitted to the Tribunal for determination as to the question whether the respondent had suffered prejudice as a result of the failure to give that notice "as soon as practicable". Although it is regrettable that the matter was not clarified by the legal representatives, it is clear enough that the Tribunal assumed, in error, that no such point was taken. It was not suggested that the respondent is now precluded from asserting prejudice was suffered and it is not too difficult to accept that that might be the case. The onset of symptoms and an understanding of their cause may be thought to be potentially more important to the question why a claim for compensation was not made than as to the reason why notice of the occurrence of an accident was not given. The latter may not be thought to require, necessarily, an appreciation of injury suffered although one would think that delay in symptoms becoming apparent or pronounced might go far towards a satisfactory explanation as to why no notice was given and so providing "other reasonable cause" within proviso (i). The Tribunal obviously considered that might be the case, for it dealt with the issue relating to notice on the basis of when these matters were apparent to the applicant. And of course it is of some importance there was no other explanation offered either with respect to the failure to give notice or the failure to make a claim save that he was managing well enough in his day to day life despite the hearing loss. It was submitted, with respect to the Tribunal's determination that Mr Banks had not also shown that there was "other reasonable cause" for failure to make a claim for compensation, that the Tribunal made inconsistent findings as to the reason why he had not done so and findings which, individually, could not support the conclusion. At one point the Senior Member did refer to the applicant not wishing to hinder his entry into the Victorian Police Force as his motive and, at another, that the reasons for his inaction were not entirely clear. The explanation however is that the reference were to different periods in the applicant's history. It was correct to observe that in the year following, 1955, the applicant had determined not to do anything to draw attention to his left sided hearing deficit, as he understood it to be, because it might affect his acceptance into the police force, where he in fact remained for over thirty years. And, with respect to the period he was hospitalised following the incident, in February 1954, no reason could be deduced for none was offered. The period relevant to the Tribunal's consideration as to whether a satisfactory explanation was given, as required by the sub-section, was the six months following the accident: Murray v Baxter (1914) 18 CLR 622. It is not apparent to me that the Tribunal had any doubt about this, as was submitted. The Senior Member referred to that case in that connection and in conclusion stated: "63. There are decisions pointing both ways in this area but the point of distinction is a factual one concerned with the point in time the injury claimed to be compensible became symptomatic or, as in *Willis (supra), when it became apparent that there was a causative link between the accident and the injury. 64. These considerations do not apply here. The causative link and the hearing deficit became apparent within six months of the accident, the causative link was apparent at the time of hospitalisation but for reasons which are not entirely clear the applicant chose to do nothing. Those findings do not justify a finding of reasonable cause for the failure to make the claim within six months of the accident." (*Re Willis and Australia Telecommunications Commission and Anor (1989) 19 ALD 665)

The reference to the factors influencing Mr Banks at a later time, when he sought to join the police force, should be seen in the context of the reasons as part of the broader narrative but from which no inference could usefully be drawn with respect to the critical period. The conclusion here reached by the Tribunal was brought about by the same factor relevant to the failure to give notice, namely the applicant's knowledge, very shortly after the accident, that he had suffered injury as a result of the accident. In the absence of further explanation the only conclusion which could be reached was that there was no "mistake" or "other reasonable cause" within the meaning of the proviso. In the absence of that explanation it is not strictly necessary for me to deal with the alternative contention that the excuse given, but which cannot be said to be necessarily connected with the relevant period, sufficed. Not wishing to diminish one's prospects of employment, when a person is able to cope with a limited disability, furnishes a reason for not making a claim which is understandable. But that may not suffice as a satisfactory explanation for the failure. Proviso paragraph (ii) requires that it be "occasioned by ... other reasonable cause". Unlike proviso (i), this proviso does not excuse inaction where there is no prejudice. And the words of proviso (ii) set out furnish little guide to what the a decision-maker might regard as an acceptable excuse. 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 [1963] VR 34, 38; Quinlivan v Portland Harbour Trust [1963] VR 25, 28. Here however it was not just the circumstances prevailing which operated to hinder or prevent the giving of notice, but a conscious decision made by the applicant in light of those circumstances and according to where it was perceived his best interests lay. It was a decision that a claim not be pursued as the applicant felt he was able to manage. There may be cases where a decision not to claim, for a time, is held to be justified and qualify as reasonable, for instance when it is made absent full knowledge though not amounting to a mistaken belief, a separate ground of excuse under the proviso. It is difficult however to accept that proviso (ii) was intended to encompass a position where a person might later change their mind about making the claim for the reason that it now suited them to do so. Counsel for the applicant also submitted that the Tribunal failed, in arriving at its conclusions, to take account of the fact that the claim related to loss of hearing in both ears and not just the left. Certainly the Tribunal did not refer to the facts concerning the injury to the right ear, but that may well have been because there were none pertinent to the issue. In that case it could not be said that the resolution of the further question could affect the conclusion already reached and it would be unnecessary to send the matter back to the Tribunal for the purpose of it making a finding: see BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 34 FCR 246, 253-5; Klinkert v Australian Postal Corporation (1992) 16 AAR 86, 92. It was not suggested by Mr Banks in his evidence that knowledge that he had also suffered injury to the right ear would have made any difference and it is difficult, given that what he did know failed to motivate him to make a claim, to infer that a lack of appreciation that he suffered some loss of hearing in that ear could have operated as any "cause". The Tribunal was correct in concluding that the proviso (ii) did not operate to excuse the late claim. It follows that the claim could not be accepted. It is not necessary to remit the matter for further determination on the question as to whether prejudice was suffered by failure to notify of the accident. The appeal will be dismissed. I certify that this and the preceding twelve pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel. Associate Date: 22 May 1996 Counsel for the applicant: Mr M Wilson Solicitors for the applicant: Mullins & Mullins Counsel for the respondent: Ms E Ford Solicitors for the respondent: Australian Government Solicitor Date of Hearing: 26 July 1995 Place of Hearing: Brisbane Date of Judgment: 22 May 1996

Behan v Australian Telecommunications Corporation

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Judgment (7 paragraphs)

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Cases Cited (3)