Australia: Decision Explains Meaning Of ‘Mistake’ And ‘Reasonable Cause’

Re Ronald Maxwell Heneker and Comcare [2008] AATA 1088 was an application for review of a decision made by Comcare rejecting a claim for compensation. The Tribunal's decision is specifically in relation to the threshold issue as to whether Mr Heneker's claim can be considered in circumstances where it is out of time.

Background

Mr Heneker was an employee of the Commonwealth Railways (the Railways), where he worked as a fitter between 1951 and 1959. Mr Heneker was subsequently employed by the Railways between 1975 and 1980. After an increased difficulty with his hearing over a number of years, Mr Heneker first had his hearing formally tested in 1993, which demonstrated a hearing loss of 40.2%.

The Claim

On 8 November 2005, Mr Heneker first completed and lodged a claim for compensation for bilateral sensorineural hearing loss, which he attributed to exposure to rivet gun noise in the course of his employment with the Railways between 1951 and 1959.

Mr Heneker's claim was rejected by a delegate of Comcare on the basis of a lack of evidence and the failure to give notice of injury as soon as practicable.

At the outset, the Tribunal considered which legislation was applicable. Relying on the analogous case of Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242, the Tribunal found that Mr Heneker's hearing loss, allegedly resulting from an exposure to ongoing repetitive noise, was an 'injury' so as to invoke the operation of the Commonwealth Employees' Compensation Act 1930 (the 1930 Act).

Section 16(1) of the 1930 Act relevantly states that a claim for compensation shall not be admitted unless notice of the injury was served as soon as practicable and the claim for compensation is made within six months from the occurrence of the injury. However, a claim can be considered, notwithstanding the notice and claim being out of time, if the defect or inaccuracy in the notice does not prejudice the Commonwealth, or if the defect or inaccuracy was occasioned by mistake or other reasonable cause, and, if the failure to make claim within the specified period was occasioned by mistake or reasonable cause.

There was no dispute that Mr Heneker did not serve notice of the injury or make a claim within the requisite time period.

The Tribunal 'S Decision

In Re Ronald Maxwell Heneker and Comcare [2008] AATA 1088, the Administrative Appeals Tribunal considered:

• Whether the Respondent was prejudiced by the defect or inaccuracy in the notice of injury such to prevent a claim for compensation in accordance with section 16 of the 1930 Act.
• Whether the defect or inaccuracy in the notice and the failure to make a claim within the prescribed period was occasioned by mistake or other reasonable cause.

Given the lack of contemporaneous records, the Tribunal accepted that Comcare was prejudiced by the delay in the notice of the injury.

On the remaining issues, the Tribunal reviewed the authorities, namely Re Willis and Australian Telecommunications Commission and the Commonwealth of Australia (1989) 19 ALD 665; Murray v Baxter (1914) 18 and CLR 622, and found that the relevant period for assessing mistake or reasonable cause was the 1950s when the loss would have first occurred, if the medical evidence that the hearing loss would have become permanent after exposure for one year was accepted.

The Tribunal also cited Telstra Corporation v Roycroft (1997) 47 ALD 671 and accepted that ignorance of a requirement of law or a mistake about its content can constitute a mistake. On that basis, the Tribunal found that Mr Heneker's failure to give notice and to make a claim was caused by two mistakes. Firstly, he had not realised the seriousness of the hearing loss until recently. In so finding, the Tribunal noted that hearing loss is a condition that a person may not appreciate the seriousness of when it first occurs. Secondly, Mr Heneker believed that he could not make a claim because he was no longer employed with the Railways. Although it was unnecessary to do so, the Tribunal further found that these mistakes also amounted to a reasonable cause for failing to given notice of the injury or failing to make the claim within time.

Accordingly, the Tribunal concluded that Mr Heneker's claim fell within the ameliorating provision in section 16 of the 1930 Act, thus allowing his claim for compensation to be considered.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.