Comcare v Luck

Statutory Framework 19 At the time of Mr Luck's first surgical treatment for his knee in 1957 the legislation under which he would then have had to claim statutory compensation was the Commonwealth Employees' Compensation Act 1930 (Cth). That Act had replaced the Commonwealth Workmen's Compensation Act 1912 (Cth) and was designed to achieve consistency in compensation payments to Commonwealth employees generally. 20 As enacted in 1930 liability for compensation under the Act was created by s 9(1), subject to various expressed provisoes. Section 9 was repealed and a new s 9 inserted in 1948 by the Commonwealth Employees' Compensation Act 1948 (Cth). The section in that form was applicable thereafter until the repeal of the Act in 1988. It provided: "9(1) If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act." Subsections (2) and (3) are not relevant for present purposes. 21 Section 16 of the Act provided for the giving of notice of accidents and imposed a time limit for so doing in the following terms: "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 case of death - within 6 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." 22 The term "injury" which appears in s 9 was not defined in the Act until 1948 when the definition section, s 4, was repealed and a new s 4 with a number of additional definitions, inserted in its stead. This was done by the Commonwealth Employees' Compensation Act 1948. The term "injury" was defined thus: ""injury" means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;"

23 The 1930 Act was replaced by the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and that in turn was supplanted by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). That legislation has subsequently been renamed as the Safety, Rehabilitation and Compensation Act 1988 (Cth) which took effect on 24 December 1992.

24 Section 68 of the Act established the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees. That Commission operated under the name Comcare. However from 22 June 1992 the administrative arrangements were restructured and a new compensation claims management body given the statutory designation Comcare was established by s 68. This was done by the Industrial Relations Legislation Amendment Act (No. 3) 1991 (Cth). Liability under the Act was established by s 14(1) which provides:

"14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." Qualifications on liability under subss (2) and (3) of s 14 are not relevant for present purposes. 25 Section 14 appears in Part II of the Act headed Compensation and specifically in Division 1 headed "Injuries, property loss or damage, medical expenses". Division 4 of Part II deals with Injuries Resulting in Impairment. Section 24 of the Act in that Division is relevantly in the following terms: "24(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury. . . . (7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section…." 26 The definition of the word "injury" is extended to include disease and is set out in s 4 as follows: ""Injury" means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment." 27 The word "disease" is also defined in the following terms: ""disease" means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation." "Ailment" is defined in turn thus: ""Ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)." ""Impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function." ""Permanent" means likely to continue indefinitely." 28 As with the 1930 Act, the 1988 Act includes provision for the giving of notice in writing of injury "as soon as possible after the employee becomes aware of the injury" (s 53). In addition compensation is not payable unless a claim is first made in writing to the relevant authority accompanied by a certificate by a legally qualified medical practitioner in accordance with a form approved by Comcare for that purpose (s 54). 29 Relevant parts of s 53 for present purposes are: "53(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority: (a) as soon as practicable after the employee becomes aware of the injury; . . . (3) Where: (a) a notice purporting to be a notice referred to in this section has been given to the relevant authority; (b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and (c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause; the notice shall be taken to have been given under this section." 30 There are transitional provisions in Part X of the 1988 Act concerned with the application of the Act to injury, loss or damage suffered by an employee before its commencing day, which was 1 December 1988. The relevant parts of s 124 provide: "124(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 the 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: (a) where the injury, loss or damage was suffered before the commencement of the 1930 Act - under the 1912 Act; (b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the injury, loss or damage was suffered; or (c) in any other case - under the 1971 Act as in force when the injury, loss or damage was suffered. (3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date (sic), if: (a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or (b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death: (i) where the impairment or death occurred before the commencement of the 1930 Act - under the 1912 Act; (ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the impairment or death occurred; or (iii) in any other case - under the 1971 Act as in force when the impairment or death occurred. (4) The amount of compensation (if any) that a person is, by virtue of this section entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under: (a) where the impairment or death occurred before the commencement of the 1930 Act - the 1912 Act: (b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - the 1930 Act as in force when the impairment or death occurred; or (c) in any other case - the 1971 Act as in force when the impairment or death occurred. … (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." 31 The reference in s 124 to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever the 1912, 1930 or 1971 Acts was in force when it was suffered (s 123A). 32 The application of s 124 depends upon the date on which the injury in question was suffered. While this will be a matter of fact for discrete traumas the definition of date of occurrence for a disease or aggravation of a disease requires legislative assistance. This is provided by s 7(4) which provides: "For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when: (a) the employee first sought medical treatment for the disease, or aggravation; or (b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee; whichever happens first."

The Tribunal's Decision 33 The factual history of Mr Luck's injury and treatment in 1956 and 1957 and the events from 1992 to 1995, when he lodged his claim with Comcare reflect the Tribunal's findings of fact in this case. The Tribunal regarded him as a credible witness and accepted his evidence. It found that in the incidents which occurred in late 1955, August 1956 and December 1956 he had suffered an injury to the lateral meniscus of his right knee in the course of his employment by the Commonwealth as a member of the RAAF and that this was an injury within the meaning of s 9(1) of the 1930 Act and ss 14(1) and 24(1) of the 1988 Act. It also found that on medical advice Mr Luck had undergone surgery, namely the open lateral meniscectomy to his right knee on 7 February 1957 for the purpose of treating the injury and that the costs were met by the Commonwealth. 34 The Tribunal found that Mr Luck's present knee condition which became symptomatic on 9 September 1992 is an "ailment" as defined in s 4(1) of the 1988 Act. At par 44 of its reasons its stated: "All of the recent medical evidence…supports the proposition that the applicant's present right knee condition is directly related to the injury to the lateral meniscus of his right knee which he suffered in the course of his employment by the Commonwealth as a member of the RAAF in 1956 and to the resulting surgery (namely, an open lateral meniscectomy) to his right knee which he underwent in February 1957. On the basis of this evidence - which was uncontradicted - the Tribunal finds that the applicant's present right knee condition was "contributed to in a material degree" by the applicant's abovementioned employment by the Commonwealth. Accordingly, the Tribunal finds that the applicant's present right knee condition is a "disease", as defined in s 4(1) of the 1988 Act, and therefore, an "injury" as also defined in that subsection." 35 The Tribunal held that Mr Luck's claim for compensation lodged in January 1995 was a claim under the 1988 Act in respect of the right knee injury suffered on 9 September 1992. It was not a claim for compensation in respect of the injury originally suffered in 1955-56 and accordingly ss 124(10) of the 1988 Act and s 16 of the 1930 Act were irrelevant. 36 It also considered whether or not Mr Luck had given written notice of the injury pursuant to s 53 of the 1988 Act. It concluded that the compensation claim form lodged on 28 January 1995 constituted notice in writing of the relevant injury for the purposes of s 53(1) because the claim form contained details of the nature of the injury and of the circumstances in which it occurred. There was nothing in s 53 which would preclude a completed compensation claim form lodged in accordance with s 54 of that Act from also constituting a written notice. 37 Noting that Mr Luck had not given the written notice until 28 January 1995, the Tribunal held that the notice was not given "as soon as practicable" after Mr Luck had become aware of his injury on 9 September 1992. It then addressed the question whether, by virtue of s 53(3) of the 1988 Act the relevant notice should be taken to have been given under s 53. That involved asking whether Comcare would be prejudiced if the notice were treated as a sufficient notice and if so, whether the failure to comply with the requirements of s 53 resulted from ignorance, mistake or from any other reasonable cause. As to prejudice the Tribunal held at par 50: "In the present case there is no evidence that the respondent was prejudiced by reason of the applicant's failure to notify it in writing of his September 1992 injury "as soon as practicable" after he became aware of it, such notice not having been given to the respondent until 28 January 1995." 38 Mr Paul Ontong, Assistant Director, Reconsideration and Appeals in the Military Compensation and Rehabilitation Section of the Department of Defence, administers under a delegation from Comcare, compensation claims made by present and former members of the Australian Defence Forces. The substance of his evidence had been that because of what he regarded as a delay of 39 years, the Department was unable to fully investigate the claim by locating witnesses to the incident when the injury was allegedly suffered. He had acknowledged in evidence, however, that in relation to the incident of 9 September 1992, Comcare was not significantly disadvantaged in investigating the circumstances surrounding that incident by the fact that Mr Luck had not lodged his claim for compensation until January 1995. 39 Relying upon that evidence, the Tribunal found that Comcare would not be prejudiced by Mr Luck's failure to notify in writing of the injury of 9 September 1992 as soon as practicable after he became aware of that injury. It was therefore not necessary to make a finding on the alternative matters mentioned in s 53(3)(c). It nevertheless found that Mr Luck's failure to notify of the September 1992 injury as soon as practicable after he became aware of it resulted from his ignorance of the compensation claim process. A further reasonable cause for his failure so to notify Comcare was his own uncertainty regarding the appropriate diagnosis of his right knee condition and its aetiology and the time which elapsed before these matters were clarified by his treating medical practitioners. 40 On the basis of these findings the Tribunal concluded that the required notice of injury of 9 September 1992 should be taken to have been given under s 53 with the result that the application of the 1988 Act to the injury was not precluded. 41 There having been an impairment to the applicant's right knee which was permanent, Comcare was liable under s 24(1) of the 1988 Act to pay compensation in respect of that injury. 42 The Tribunal considered the alternative proposition that the only relevant injury occurred in the period late 1955 to 1956. The crucial issue then was whether Mr Luck's claim for compensation was not admissible because of s 16 of the 1930 Act. No notice had been served upon the Commissioner under the 1930 Act and the question arose then whether the lack of notice and the failure to make a claim within the specified period were "occasioned by mistake … or other reasonable cause" within the meaning of the proviso to s 16(1). Mr Luck's costs of medical and hospital treatment having been met by the Commonwealth and his wages continuing to be paid by the Commonwealth as a condition of his service with the RAAF, there was no need for him to claim compensation in respect of his injury or to serve notice of the accident upon the Commissioner. He would have had reasonable cause to believe that the RAAF was on notice of those accidents because it arranged medical treatment for his right knee when they occurred. His Commanding Officer was aware of the incident as a result of which he was allocated to "light duties". In these circumstances the Tribunal held that Mr Luck's failure to serve notice of the accidents on the Commissioner and his failure to make a claim for compensation within the specified period of six months were occasioned by reasonable cause. The issue of prejudice to the Commonwealth did not arise. In any event the Tribunal was not satisfied that the Commonwealth had been prejudiced by the failure to serve notice of the accidents in the period late 1955-1956 on the Commissioner. The Tribunal found that no prejudice had been suffered by the Commonwealth in that case. Because what it held to be a fresh permanent impairment had occurred to Mr Luck after the commencing day of the 1988 Act, the amount of the compensation payable to him in respect of the injury resulting in that impairment would fall to be assessed under s 24 of the 1988 Act and not under the 1930 Act. On that basis it was concluded that Comcare was liable to pay compensation to Mr Luck in respect of the injury to his right knee, namely severe or advanced lateral compartment osteoarthritis.

The Date of the Relevant Injury - Appeal Ground (a) 43 The Tribunal's decision was first attacked on the ground that it had erred in finding Mr Luck to have suffered injury for the purposes of the 1988 Act in September 1992. The gravamen of Comcare's complaint in this regard was that the Tribunal treated a progression of the 1955-1957 injury as though it were a new injury occurring in 1992. 44 The Tribunal's central findings on this issue were set out in par 44 of its reasons which has been reproduced above. The logic of those findings was as follows: 1. Mr Luck's present right knee condition is an ailment within s 4(1) of the 1988 Act. 2. That ailment is directly related to the injury to the lateral meniscus of his right knee suffered in the course of his employment with the Commonwealth in 1956 and is directly related to the resulting surgery in 1957. 3. That ailment was contributed to in a material degree by Mr Luck's employment by the Commonwealth. 4. The ailment is a disease as defined in s 4(1) of the 1988 Act and therefore an injury as defined in that subsection. 45 To establish the occurrence of an injury for the purposes of s 4 of the 1988 Act it is sufficient to demonstrate the occurrence of a disease suffered by an employee. And that is demonstrated if there is shown to be any "ailment" suffered by the employee that was contributed to in a material degree by the employee's employment by the Commonwealth. In this case the Tribunal has found as a fact that the symptoms suffered by Mr Luck in September 1992 were of a condition described as severe lateral compartment osteoarthritis. It accepted that the injury had resulted in permanent impairment to the right knee and that it would deteriorate progressively "because the osteoarthritis in his right knee is a progressive degenerative disease" (par 54). Notwithstanding the recognition of the progressive character of the disease and its causal connection to the events of 1955, 1956 and 1957 the Tribunal spoke of the injury as having "occurred on 9 September 1992" (par 55). 46 Comcare's argument could not impugn the Tribunal's decision on the basis that it did not fit within the literal language of the sections imposing liability under the 1988 Act. Rather its contentions were along the following lines: 1. The definitions of injury in s 4 of the 1930 Act and s 4 of the 1988 Act tie the event of injury to employment by use of the term "arising out of, or in the course of…employment." The condition of Mr Luck's knee in 1992 did not arise out of or in the course of his employment except as a consequence of his injury in 1956. 2. The impairment provision in s 24 of the 1988 Act assumes progress of an initial injury not the arising of new injuries. Reference was made to Brennan v Comcare (1994) 50 FCR 555 at 558 and 571 and Comcare v Levett (1995) 60 FCR 14. The effect of the Tribunal's decision, it was said, is to deny that proposition and to allow that significant increase in impairment and arguably symptomatology may constitute a new injury. 3. The construction adopted by the Tribunal had the effect of defeating the intent of the notice provisions of s 16 of the 1930 Act and ss 53 and 54 of the 1988 Act which was to enable investigation of claims to be made. 4. Treating the 1992 condition as an "ailment" blurred the distinction between injury and the progression of injury. 47 Section 9 of the 1930 Act referred to "personal injury by accident arising out of or in the course of…employment by the Commonwealth". It did not explicitly extend to disease. The definition of injury in s 4 of the 1988 Act uses that formulation in respect of an injury other than a disease. For a disease which is an ailment however it is enough that the ailment be contributed to in a material degree by the employee's employment by the Commonwealth. The ailment is not required by the Act to be contemporaneous with that employment. 48 If the ailment found by the Tribunal to exist in 1992 were characterised as an aggravation of a disease namely the condition suffered in 1955-57 then it would appear from the provisions of s 7(4)(a) that Mr Luck would be taken to have sustained injury on the day when he first sought medical treatment for the disease, that having predated by some thirty years the date upon which he first sought medical treatment for its aggravation. The earlier date is identified in s 7(4) as the date upon which the employee is to be taken to have sustained an injury. If the disease identified in 1992 could be treated as an aggravation of a disease for which Mr Luck first sought medical treatment in 1956, then the date of the relevant injury would have been in 1956. In that event s 124 would have operated to apply the provisions of the 1930 Act including the relevant notice provisions. 49 But the Tribunal has not, as a matter of fact, treated Mr Luck's advanced lateral compartment osteoarthritis as an aggravation of a condition for which he sought medical treatment in 1956. Indeed it appears from the evidence referred to by the Tribunal that far from being an aggravation or progression of a condition for which he had sought medical treatment, the osteoarthritis was a result of the medical treatment itself. So in Mr Anderson's report, referred to by the Tribunal, reference was made to Mr Luck's history subsequent to his injury and treatment as "…typical of someone who had undergone an open lateral meniscectomy with features in keeping with lateral compartment degeneration as was the clinical and subsequent arthroscopic findings." 50 Mr Anderson also said in his report: "Clinical examination has indicated a tendency to valgus in that knee joint in keeping with lateral joint wear which is a common scenario following an open complete lateral meniscectomy and the subsequent arthroscopy carried out on 21st of January 1993 showed that the lateral compartment was virtually denuded of articular cartilage. . . . The precise nature of the injury clearly was one of a lateral meniscal tear which occurred in his normal work duties with the Armed Forces and the prescribed surgery has now resulted in severe lateral joint degeneration." 51 Mr Holt's report of 18 July 1997 found "…advanced lateral compartment osteo arthritis of the right knee that I have no doubt relates to the fact that he had an open lateral meniscectomy in 1956". And further: "Mr Luck has all the symptoms and signs of a degenerative right knee. His x-ray confirms that the lateral compartment is the principal affected area in the knee. This is uncommon as medial compartment arthritis is the more usual finding and I have no doubt therefore that this relates to the fact that he had a previous open lateral meniscectomy as it is well known that open lateral meniscectomy almost invariably proceeds to eventual lateral compartment arthritis." 52 Dr Black's report of 31 July 1997 also came to the same conclusion: "Finally you ask whether his problems have been caused by the work accident. If he has indeed had a previous meniscectomy as he tells me he has then this would lead to osteoarthritis in the knee." And Dr. Witherow in his report of 21 July 1997 said; "It is my opinion that this gentleman has severe lateral compartment osteoarthritis in his right knee directly related to his open lateral meniscectomy which was performed in 1957. He is therefore going to require treatment for his osteoarthritis, and I believe this osteoarthritis is directly related to the injury that he sustained which resulted in him requiring an open lateral meniscectomy … It is my opinion that the development of osteoarthritis following open lateral meniscectomy can take some thirty to forty years, depending on the activity of the individual, and it would appear that this gentleman's symptoms have not been apparent until recently, despite the fact that he had many years of quite marked activity subsequent to his initial operation. However I do believe there is very good evidence to suggest that open lateral meniscectomy predisposes people to the development of osteoarthritis." 53 Mr D. Williams an orthopaedic surgeon provided a report which was tendered in evidence by Comcare and he said, inter alia: "It is of interest that the removal of the meniscus in the lateral compartment can be directly linked with the development of osteoarthritic change in the lateral compartment. The common area of medial compartment arthritis is related to the ageing process or injury but to see lateral compartment osteoarthritic change one is always suspicious of meniscus or other injury involving the lateral compartments. In the left knee he presents only with medial compartment osteoarthritic change. Both knees have some patello-femoral osteoarthritic change. One would therefore see his right knee arthritis involving the lateral compartment particularly with the weight bearing narrowing evident is related directly to the meniscal injury that occurred back in 1955 and to the need subsequently for lateral meniscus surgery in 1956. There does need to be some clarification of the date of injury which appears from the patient to be 1955 with the fall but there does appear that the cartilage surgery was in 1957 rather than in 1956 but this won't alter the fact that with the fall there was cartilage injury and he had the meniscal injury ongoing in the knee for a period before the definitive surgery was carried out accelerating the process of traumatic osteoarthritic change in the lateral compartment." 54 On these materials and even allowing for some slight qualification implicit in Mr Williams' report it was plainly open to the Tribunal to conclude, as a matter of fact, that the condition which afflicted Mr Luck in 1992 was not an aggravation of the injury he suffered in 1955-1956 but a distinct condition caused by the surgery and to which the pre-existing injury was a contributing factor and alternatively a sine qua non because it necessitated the surgery. 55 There is nothing in this conclusion which is inconsistent with the language or policy of the provisions of the Act relating to impairment. In Brennan v Comcare (supra) Burchett J observed that subs 124(3) talks about "a permanent impairment" and "that impairment" and added: "This language is consistent with the analysis I have made of s 24, and with the notion that there may be a number of impairments arising at different times out of the same injury." (at 557) 56 Gummow J, who agreed with Burchett J in the same case, said: "The terms of the legislation are consistent with the imposition of distinct liabilities where an injury results in more than one permanent impairment, and in a particular case those results may be manifested sequentially rather than concurrently." (at 571) In that case Gummow J noted there had been "…no findings of fact to indicate that the present case falls into that perhaps unusual category". Ryan J agreed with both Burchett and Gummow JJ. 57 The absence of any policy inconsistency is highlighted by the decision of the Full Court in Comcare v Levett (supra) where impairment from a back injury occurred prior to 1 December 1988 but permanent impairment did not occur until after that date. There, compensation payable under s 24 in respect of the permanent impairment was not limited by the operation of s 124(3). The present case is, if anything, stronger in favour of the claimant's position than Levett because in the present case the Tribunal has found an ailment which has occurred after 1 December 1988. As Carr J noted in Comcare Australia v Macquire (1996) 68 FCR 324 the test for liability in respect of a disease is less stringent than that in respect of an injury. An injury must arise out of or in the course of employment:

"The test for compensation in relation to a "disease" requires only that it be an ailment or aggravation contributed to in a material degree by the employee's employment." (at 341) 58 In my opinion what Comcare seeks to impugn is a finding of fact by the Tribunal about the existence and occurrence of an ailment. There is no error of law in relation to the Tribunal's determination that for the purposes of the 1988 Act the ailment occurred in 1992.

Notice of Injury and Claim - Group (b) 59 The Tribunal found as a matter of fact that Comcare was not prejudiced by Mr Luck's failure to give notice of his condition of 9 September 1992 as soon as practicable after he had become aware of it. Moreover it held that Comcare would not be prejudiced if the notice given by way of the claim for compensation lodged on 28 January 1995 were treated as a sufficient notice for the purposes of s 53 of the Act. 60 Counsel submitted that the Act distinguishes between a notice of injury referred to in s 53 and a claim for compensation referred to in s 54. This submission was not advanced with any great fervour and rightly so given the Tribunal's findings as to want of prejudice and indeed the evidence of Mr Ontong in that connection. The question really then reduces to one of construction, namely whether the claim made under s 54 of the Act can also be characterised as "a notice purporting to be a notice referred to in [s 53]" for the purposes of s 53(3). In my opinion no narrow or technical construction should be adopted. 61 In this case the claim itself is headed up with the words "Incorporating Accident and Disease Report". An attachment to the claim form included a description of the injury sustained. Indeed in this case it contained a history of events dating back to August 1956. Mr Luck, of course, was not, in making his claim, making distinctions between concepts of injury and disease for the purposes of s 4 of the 1988 Act. In my opinion however given the finding by the Tribunal of want of prejudice, the claim form itself could stand as notice of the injury and indeed purported to give notice of injury.

Notice Under Section 16 of the 1930 Act and Prejudice under Section 16 - Grounds (c) and (d) 62 The Tribunal's findings in relation to the failure to give notice of the 1955-1956 injury under s 16 of the 1930 Act and its findings occasioned by reason of such failure were based upon the hypothesis that its primary findings about the date of injury and the application of the 1988 Act were wrong. Having concluded that the Tribunal was correct in its primary findings it is unnecessary for me to canvass the correctness of its alternate conclusions or the grounds of appeal relating to them.

Adequacy of the Tribunal's Reasons - Grounds (e) and (f) 63 Comcare submitted that the Tribunal had failed to give reasons for its finding that Mr Luck had sustained injury in the course of employment on 13 August 1956 when he said he was playing tennis as part of work related activities. Alternatively it attacked the Tribunal's finding in this respect for want of any proper basis. The ground of this attack was that Mr Luck had initially said in evidence that he suffered an injury to his knee when playing tennis in the course of employment on Wednesday, 15 August 1956 whereas medical records disclosed he had complained of the incident relating to an injury to his knee on 13 August 1956 which was a Monday. He had conceded that Monday was not a work day and that he would not have been playing tennis in the course of his employment on that day. He conceded further that the injury to his knee must have occurred on 13 August 1956. In those circumstances it was said there was no proper basis for the Tribunal to make a finding that there was an incident in August 1956 in the course of Mr Luck's employment with the Commonwealth. 64 In my opinion even if these grounds were made out, they would not undercut the finding of injuries on two other occasions both in the course of employment with the Commonwealth which led to the surgical intervention that was causative of the present osteoarthritis. Once that causal link is established, for reasons I have already outlined, the present condition is properly characterised as an ailment compensible under the 1988 Act. 65 A medical record of Mr Luck's attendance for treatment in August 1956 showed a handwritten entry which included the following elements: Date Place where treated Short notes showing Complaints, Symptoms, Diagnosis, Treatment etc 13/08/56 Pearce Nipped Lat cart rt knee X ray = nad Heat, crepe bandge DNM (5 days)

The reference to DNM is a reference to "Duty No Marching". In his evidence-in-chief Mr Luck was asked where he was playing tennis. He said that was on the Base. Airmen were encouraged to remain physically fit and to participate in sport and what was known as organised sport which normally took place on Wednesday afternoons. Asked about the date shown on the medical record, Mr Luck said in evidence he thought it was 15 August because 13 August was a Monday. His Squadron did not work on Monday. 15 August was a Wednesday. His belief was that he was playing on a working day. In cross-examination he said he would never play a game of tennis on a Monday which was his day off because there was nobody to play with. He would not accept in cross-examination the possibility that he was playing off the Base on 13 August. 66 In re-examination Mr Luck reaffirmed that he believed the relevant date was the 15th. No doubt this was an exercise in reconstruction and there may be more than one hypothesis that might be advanced in relation to the evidence. However the Tribunal's determination at par 42 of its reasons was based in part upon Mr Luck's credibility as a witness and its express acceptance of his evidence "…regarding the occurrences of the incidents in late 1955, August 1956, December 1956 and 9 September 1992…". 67 In my opinion whatever criticism may be made of the fact finding there is no error which is reviewable by this Court. The Tribunal appears to have accepted his oral evidence. It has not expressly addressed the question of the entry in the medical card. While Mr Luck's reference to the tennis as having occurred on Wednesday 15 was obviously an exercise in reconstruction, there are various hypotheses consistent with acceptance of the essential elements of his evidence namely that he suffered the injury while playing tennis on a duty day. One such hypothesis is that he was wrong in his recollection about which day he had off. The evidence was after all concerning events which occurred over thirty years ago. In my opinion there was material upon which the Tribunal could reach the conclusion that it did. And even if it were wrong as a matter of fact, it makes no difference to the ultimate outcome.

Conclusion 68 For the reasons given above, this application will be dismissed with costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate: Dated: 15 February 1999 Counsel for the Applicant: Mr J. Lenczner

Solicitor for the Applicant: Australian Government Solicitor