Ward v Military Rehabilitation and Compensation Commission

The interlocutory decision 5 Prior to the decision which is the subject of the present application, the Tribunal, constituted by Senior Member Allen, made an interlocutory decision following a preliminary hearing on whether the Tribunal had jurisdiction to hear the application for review of Comcare's decision. The respondent challenged the jurisdiction of the Tribunal to entertain the application on the basis that the claim had not been made within the time specified in the 1930 Act. The Tribunal found that the applicant did not make his claim until 15 February 2002 because 'he was ignorant of his right to do so'. The Tribunal identified the 'real question' before him as being whether the 1930 Act or the 1971 Act applied and observed: 'If the 1930 Act applies the applicant's claim is defeated as ignorance is not a mistake as that term has been defined in the said Act. Whereas the 1971 Act permits ignorance of an entitlement to be an extenuating factor. 6 In considering this issue Senior Member Allen drew a distinction between an injury and a disease and held that the applicant suffered from a disease, cervical spondylosis, which manifested itself after 1 September 1971 (probably at some time in the 1980s) and is separate from the injury that occurred on 31 August 1971, 'albeit that the injury may have caused or contributed to the said disease'. This latter comment was presumably prompted by medical evidence before the Senior Member to the effect that the original injury in 1971 'was the precipitating event' in the development of the applicant's condition. The Senior Member stated that the Commonwealth had not been prejudiced by the late notice of the claim and that the Tribunal had jurisdiction in the matter. 7 It must be emphasised that the decision of Senior Member Allen was not directed to the merits of the applicant's claim but only to the preliminary question of whether the Tribunal had jurisdiction to entertain it. It was not in contention that the interlocutory decision did not bind the Tribunal constituted by Senior Member Bell, which reviewed the Comcare decision. More importantly, however, the applicant's claim, as put to Senior Member Allen at the preliminary hearing, was for compensation for the 'disease' cervical spondylosis, that first occurred after the commencement of the 1971 Act. It is clear that this was not the case put to Senior Member Bell.

The Tribunal's decision 8 A number of medical reports were before the Tribunal for the purpose of reviewing the respondent's decision. The applicant relied on the report of Dr David Champion, which is the only report referred to in the Tribunal's reasons for its decision. The Tribunal appeared to accept Dr Champion's evidence although, as the following comment makes clear, it did not interpret that evidence as supporting the applicant's claim: 'His evidence was, among other things, that Mr Ward does not suffer from cervical spondylosis but rather from chronic cervical spine disorder and pain syndrome and that he has had those conditions since the injury in 1971. … This evidence makes it impossible for me to conclude that Mr Ward has a disease that manifested sometime after the commencement of the 1971 Act.' (emphasis added) 9 The Tribunal added: 'I do not accept, as urged by Counsel for Mr Ward, that Dr Champion gave evidence of two distinct conditions with different dates of onset, straddling the commencement of the 1971 Act.' 10 The Tribunal also referred to the applicant's submission that his failure to make a claim was occasioned by 'reasonable cause' in that, not having any awareness of injury, he had no reason to make a claim. The Tribunal observed: 'This does not sit well with Mr Ward's evidence of symptoms immediately following the injury and in the 6 to 12 months following it. His evidence was that he suffered, during that period, headaches with a cramp running up the side of his neck to the base of his skull and stiffness in his neck.'

11 Having found that the applicant's condition dated from 31 August 1971, the Tribunal had to consider if there was any extenuating factor relevant to the late submission of the applicant's claim. The Tribunal noted that, in a statutory declaration, the applicant had declared, that he had failed to make a claim before 2002 because 'he was not aware of his right to make a claim.' This declaration appears to have been the only evidence on the issue before the Tribunal although the interlocutory decision of Senior Member Allen had been brought to the Tribunal's attention. The Tribunal interpreted the applicant's statement as a profession of ignorance of the law. Relying on the decision of the Full Federal Court in Commonwealth v Connors (1989) 86 ALR 247, the Tribunal held that although 'mistake' in s 16(1)(ii) could include a mistake of law as well as a mistake of fact, ignorance of the law did not, by itself, constitute mistake or other reasonable cause. The Tribunal therefore affirmed the decision under review.

The present application 12 It is unfortunate for the applicant that his accident did not occur just one day later than it did. Had this been the case, his claim would have come within the 1971 Act. Section 53(4)(c) of the 1971 Act expressly provides for 'ignorance' as a basis for exempting an application from the time requirement for making a claim however the provision was not made retrospective and thus does not apply to a claim made under the 1930 Act. In the circumstances it is not surprising that both the applicant and his advisors struggled to find a basis on which to escape the rigidity of the legal analysis that must result in the rejection of the applicant's claim and in doing so made submissions that really have no merit.

Tribunal's failure to consider Dr Bodel's report 13 One such submission was that the Tribunal had made an error of law in not considering a medical report prepared for the respondent by Dr James Bodel. There is no mention in the Tribunal's reasons of Dr Bodel's report and, for present purposes, I am prepared to assume that the Tribunal did not consider it. This is not surprising given the way in which the parties approached the hearing before the Tribunal. 14 At the hearing both parties tendered a number of medical records. After a brief discussion about one medical report the Tribunal member asked each counsel if there were any other documents. Mr Jackson, who appeared for the applicant, replied in the negative. Mr Johnson, who appeared for the respondent, said: 'No, I will not be tendering anything. There is a report that was obtained from Dr Bodel and I'm happy for that to be before the Tribunal but I won't be relying on it. We'll be saying at the end of the day that Dr Bodel was incorrect in the history, acted upon an incorrect history to put it as neutrally as possible and that you should note that [sic] exists. I won't be tendering it but I've got no objection to it being before the Tribunal and it probably doesn't matter whether it carries an A number or an R number, as long as I make sure that I'm clear that I'm not relying on it.' (emphasis added) 15 The Tribunal marked Dr Bodel's report as an exhibit in the proceeding but did not refer to the report in its reasons. There is no indication that the Tribunal considered this report. 16 Mr Jackson, who also appeared for the applicant in this Court, submitted that irrespective of the respondent's position the Tribunal should have considered Dr Bodel's report. It was submitted that Dr Bodel's report provided support for the distinction between injury and disease drawn by Senior Member Allen in his interlocutory decision and consequently for a finding that the 1971 Act applied. Mr Jackson said that he could not remember if he had made any submission on Dr Bodel's report and admitted that he had been relying on the expert evidence of Dr Champion. In his written submissions, Mr Jackson appeared to attribute the Tribunal's failure to consider the report to Dr Bodel not having been called for cross-examination whereas Dr Champion had been extensively cross-examined. He submitted that this was an erroneous basis on which to prefer the evidence of one witness over another. Indeed it would be, but this is not what happened here. 17 Mr Johnson made it quite clear that he was not putting Dr Bodel's report forward as evidence for the respondent. Several times he made the point that he would not 'be tendering' the report and would not be relying on it. Those comments were made in Mr Jackson's presence and it seems that he made no submissions in respect of the report or gave the Tribunal an indication in any other way that the report was relevant. In the circumstances it was entirely appropriate for the Tribunal to ignore the report; there was no error in it so doing.

The nature of the applicant's condition and its date of onset 18 After the accident with the weights on 31 August 1971, the applicant was taken to hospital. He remained there overnight and was discharged the following day. The terms of his discharge from hospital restricted him from running and physical training for four days. After that he returned to full duties including running and physical training. The applicant gave evidence to the Tribunal that during the six months following the accident he was experiencing a stiff neck and headaches on a semi-regular basis. He was asked why, if this was so, the discharge paper that he filled out on leaving the Army did not mention any problem with his neck. As recorded in the transcript his response was: '[B]ecause the document was a discharge document and it had to be filled out properly that an officer was in the room with us. He went through each of the questions one at a time and got the answer. I guess the question that you're asking me is, is that did I have anything wrong with me and why didn't I put it down. … I didn't think it was something that was a problem to me. I was bearing it, I was putting up with it and that's the best I can say but we were certainly directed to fill it out as no, that there wasn't a problem, that any of us had a problem. That's the best I can recall.' 19 The applicant described how for about 10 years he was living overseas in Canada and in the United States. During that period he had "intermittent bouts of cramp and stiffness" he also noted that when he was first discharged from the army he had about six weeks of really bad neck pain and headache about which he saw his local doctor. However, when he was travelling he relied on over-the-counter analgesics for relief. 20 The applicant also described an incident that occurred in May 1983. At that time he was back in Australia and working as a formwork carpenter on a bridge. While working in this position he had a fall when a riverbank collapsed. He fell backwards into the water and struck his back on a piece of timber that was just below the water line. According to the applicant, although that fall was painful and affected his back and his ribs he did not notice any increased pain in his neck area. 21 In an attempt to show that the 1971 Act applied, counsel for the applicant postulated that while the initial injury to the applicant's neck occurred on 31 August 1971, he subsequently developed, after the commencement of the 1971 Act, a disease known as generalised cervical spondylosis. The difficulty for the applicant is that this was not the picture painted before the Tribunal. As noted above, the medical report mainly relied on by the applicant before the Tribunal was that of Dr Champion. Dr Champion rejected the suggestion, made in an earlier medical report by a Dr Bashir, that the applicant suffers from "generalised cervical spondylosis". He was quite scathing about Dr Bashir's opinion: ' Firstly [the applicant] does not have generalised cervical spondylosis, or at least there has been no evidence of that available to me. It has been well shown in epidemiological studies that injury is an important causal influence in chronic neck pain disorders more so than age and spondylosis. Thus the statements [made by Dr Bashir] are not in accord with current understanding of neck pain. … She referred to the development of generalised cervical spondylosis and I have no idea how she got such a concept. The evidence from epidemiological and other research is that generalised cervical spondylosis is usually not a cause of significant neck pain unless injury supervenes. This disorder has nothing to do with "ageing and wear and tear coupled with a constitutional predisposition for a spinal disease". Where does this information come from?' 22 In Dr Champion's opinion the proper diagnosis is "chronic cervical spinal pain syndrome". It is not difficult to see why the applicant relied on Dr Champion's report because the doctor's conclusion related the pain syndrome that he had diagnosed in the applicant to the 1971 accident: 'If Mr Ward had not sustained the injury in August 1971, it is more likely than not that he would not have had work-related cervical spinal pain disorders. Also more likely than not, any injury to his cervical spine in the May 1983 accident would have been trivial and not caused any further disorder.' 23 In the light of this evidence, the Tribunal was entitled to conclude (see [8] above) that the applicant's condition commenced with the accident in 1971 and to reject the submission that there were two distinct conditions with different dates of onset. It followed that the applicant's delay in making his claim for compensation had to be assessed with reference to the provisions of the 1930 Act, in particular whether any of the extenuating provisions in s 16(1) of that Act applied.

The applicant's delay making a claim for compensation 24 The applicant submitted that the Tribunal erred in failing to distinguish between 'notice of injury' and 'notice of claim'. He submitted that the notice of injury alerts the respondent to a "potential liability" whereas the notice of claim alerts the respondent to "an actual, or realised, liability". This distinction formed the basis of a submission that the applicant had reasonable cause to have not made a claim within six months of the accident because during that time he would not have been entitled to any form of compensation for which the 1930 Act provided. The point, as I understood it, was that the applicant's present claim is for medical expense that had not been incurred at that point. The medical expenses that were incurred during the first six months did not cause him a loss for which he could claim compensation because they were met by the Army. 25 As the respondent points out, however, s 16 does not speak of "notice of injury" or "notice of claim". Rather it speaks of "notice of the accident" and "claim for compensation". Moreover, the respondent submits that there is no support for the proposition that a claim for compensation cannot be made until a loss has been incurred. I agree with this submission. Section 16 is a procedural section, intended to ensure that compensation proceedings are commenced within a reasonably short period of time of the accident to which the compensation allegedly relates. A pre-requisite to the Commonwealth's consideration of whether it is liable under s 9 to pay compensation (and, therefore, also a pre-requisite for the payment of medical expenses pursuant to s 11) is that a claim has been made within the period prescribed in s 16. Since s 16 is intended to be merely procedural, with s 9 providing the substantive requirements for liability, the applicant could have satisfied s 16 and made a claim for compensation, notwithstanding that at the time that it was made, the claim may have been unmeritorious. 26 In any event, the respondent submits that the applicant may have had a claim for partial incapacity under Schedule 1 of the Act, although the respondent acknowledged that there was insufficient evidence on this point for the Tribunal to make a finding either way. Given my finding at [25] I do not have to decide this point. 27 Regardless of whether a claim could be made before a loss had been incurred, or whether the applicant had in fact incurred a compensable loss, the facts of this case do not support the applicant's submission. 28 First, the applicant's failure to make a claim was not occasioned by the fact that he did not regard himself as having a compensable injury, or that he did not in fact have a compensable injury. The only direct evidence before the Tribunal was the statutory declaration made by the applicant and referred to above at [11], which unequivocally stated that his failure to make a claim within the requisite period was occasioned by ignorance as to his entitlements. The Tribunal referred to this evidence in its decision and concluded: "The only evidence before me is that of the Applicant to the effect that he did not claim because he was ignorant of his right to do so." This finding of fact was open to the Tribunal and it is not for this Court to interfere with that conclusion. 29 Secondly, the Tribunal expressly rejected the applicant's counsel's submission that the applicant had no actual entitlement to compensation during the six month period following his 1971 injury. As noted above at [10] the Tribunal found that the applicant had an immediate need for medical treatment following the injury. This finding of fact was also open to the Tribunal on the applicant's own evidence. The applicant's submissions on this issue appear to be a retrospective attempt to explain the applicant's conduct in a manner that is inconsistent with the applicant's own, unequivocal evidence. The Tribunal added: 'I am also mindful of the decision of the Federal Court in Department of Veterans Affairs v Studdert ([2001] FCA 1642) in which Moore J accepted that there must be a direct relationship between the failure of the individual to make the claim and the reasonable cause. The only evidence before me is that of the applicant to the effect that he did not claim because he was ignorant of his right to do so.' 30 In my view the Tribunal's conclusion was open to it and it is not for this Court to interfere with that conclusion. For these reasons the present application must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 12 January 2007 Counsel for the Applicant: C Jackson

Solicitor for the Respondent: Blake Dawson Waldron