Bedford and Military Rehabilitation and Compensation Commission (Compensation)

[2023] AATA 4094

Bedford and Military Rehabilitation and Compensation Commission (Compensation) [2023] AATA 4094 (11 December 2023)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2022/9753

Re:Geoffrey BEDFORD

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:11 December 2023

Place:Sydney

The correct and preferable decision is to affirm the decision under review.

.............................[SGD]........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

COMPENSATION – Injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 (Cth) – Transitional provisions – whether there is a causal nexus between Applicant’s injuries and employment – whether injury sustained during travel from his employment – where Applicant lived on base – reviewable decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Commonwealth Employees’ Compensation Act 1930 (Cth) ss 9, 16

Safety, Rehabilitation and Compensation Act 1988 (Defence-related Claims) (Cth) ss 124

CASES

Adcock v Commonwealth (1960) 130 CLR 194

Commonwealth v Wright (1956) 96 CLR 536

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

11 December 2023

BACKGROUND:

1. The Respondent’s Statement of Facts, Issues and Contentions contains a helpful factual summary of this matter, much of which has been replicated below.

2. The Applicant enlisted in the Australian Army in October 1969 and was discharged in  September 1971. He was posted to the Singleton Army Base, NSW, as an infantry trainee.

3. In January 1970, the Applicant ceased his employment duties at around 5:00pm.

4. At around 7:00pm or 7:15pm, the Applicant travelled from the base to a sporting facility to play recreational basketball. During his journey to the game, the Applicant was involved in a car accident.

5. The Applicant attended Maitland Hospital. Records of the injury confirm that the Applicant suffered bruising to his left knee and right forearm.

6. In April 2018, the Applicant lodged a claim for liability in respect of the following knee injuries:

   (a)Left acute meniscal tear of the knee;

   (b)Lumbar spondylosis;

   (c)Left internal derangement of the knee;

   (d)Left knee osteoarthritis.

7. In December 2018, the Respondent rejected the Applicant’s claim for liability on the basis that the Applicant was on leave and not on duty at the time of the incident. In addition, the Respondent was not satisfied that the Applicant met the travel provisions contained in section 9A of the Commonwealth Employees’ Compensation Act 1930 (Cth), or that there was any connection between the Applicant’s service and the injuries.

8. In January 2019, the Applicant applied for reconsideration of the primary decision, and in May 2019, the Respondent confirmed the original decision, on the basis that they were not satisfied that the Applicant suffered the left knee injuries while he was travelling to or from his employment by the Commonwealth.

9. In November 2022, the Applicant applied to the Administrative Appeals Tribunal for review of the decision on the bases that:

   (a)The left knee injuries were sustained in a car accident that occurred while the Applicant travelled from his place of residence to a social sport that was approved by, and that played in his capacity as, an employee of the Commonwealth; and

   (b)Had the Applicant not been conscripted, the Applicant would not have been in NSW at all and therefore would not have been involved in the car accident; and

   (c)The Applicant was discharged from the Army without appropriate medical intervention.

   ISSUE:

10. The issue to be determined in this matter is whether the Applicant, at the time he suffered the left knee injuries, he was travelling from his employment by the Commonwealth, such that there is a causal connection between the left knee injuries and his employment pursuant to section 9A(1)(a) of the Commonwealth Employees’ Compensation Act 1930 (Cth) (the Act).

11. In relation to the above issue, the Tribunal must also consider whether the Applicant was travelling ‘by the shortest convenient route for the journey’, which ‘does not include travelling during or after any substantial interruption of the journey or any substantial deviation from the route made for a reason unconnected with the employee’s employment’ in accordance with section 9A(2) of the Act.

    LAW:

12. The relevant legal framework is as follows:

13. Section 124 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) provides that:

    (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 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered;

14. Section 4 of the Commonwealth Employees’ Compensation Act 1930 (Cth) (the Act) provides that the definition of ‘employee’ includes ‘(d) any member of the Naval, Military or Air Forces of the Commonwealth’.

15. Section 9A of the Act relevantly provides:

    (1) Where personal injury by accident is caused to an employee while he is travelling to or from –

    (a) his… employment13 by the Commonwealth…; or

    (b) any place which it is necessary for him to attend to obtain a medical certificate or to receive medical, surgical or hospital treatment or compensation in respect of a previous injury,

    the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of or in the course of his employment.

    (2) In this section, ‘travelling’ means travelling by the shortest convenient route for the journey and does not include travelling during or after any substantial interruption of the journey or any substantial deviation from the route made for a reason unconnected with the employee’s employment...;

    Provided that the Commissioner may, on behalf of the Commonwealth, accept liability, if he considers that in the circumstances of any particular case the nature, extent, degree and content of the risk of accident was not materially changed or increased by reason only of any such interruption or deviation.

    EVIDENCE:

    DISCUSSION:

16. There is no dispute between the parties as to the facts of the case, which are set out in the background to this decision. Relevantly, the Applicant had ceased his normal duty for the day and had returned to his home which was on the base where he was stationed.

17. After approximately 2 hours at home, during which time the Applicant had dinner and changed clothes, he got into his car and proceeded to drive to a local basketball court in order to participate in that sport.

18. The Applicant gave evidence that during the journey, some items fell from the back of the truck he was following and, as a result, he ran off the road and suffered injury to his left knee and to his wrist. I note that the Applicant’s left knee has continued to cause him significant problems and that he has had a number of surgeries as a result. He requires further specialised surgical intervention.

19. The issue before the Tribunal is whether, at the time the accident occurred, the Applicant fell within the provisions of the relevant legislation set out above.

20. The Applicant argued that because, as ADF personnel are required to be ‘on duty’ 24 hours a day, 7 days a week, and because he was travelling to participate in an approved activity, i.e. a basketball match for the purpose of meeting the physical fitness requirement of his employment, he was, in fact, travelling in the course of his employment.

21. For its part, the Respondent said that the Applicant was not on duty at the time of the injury. He had ceased duties at about 5:00pm, gone home, changed clothes, eaten dinner and then got into his car to travel to the basketball match. The Applicant does not dispute the facts. The Applicant is only entitled to compensation if his injuries occurred in the course of travelling to or from work, within the meaning of the Act.

22. The Applicant’s claim is governed by the provisions of the Commonwealth Employees’ Compensation Act 1930 (Cth) (the Act), which was in force at the time the Applicant’s injuries occurred. The Act was amended in 1948 and 1957, and section 9A as subsequently amended to remove the words ‘the place of’ so that the section now states ‘in the course of travel to or from their employment by the Commonwealth’.

23. The car accident occurred after the Applicant departed the base at around 7:00 or 7:15pm. There was therefore, a significant period of time between the Applicant ceasing his duties, and the accident occurring. Although basketball was an approved sport, the Applicant was not required to play basketball, and was not directed to attend the basketball match by his employer. Rather, the Applicant voluntarily engaged in basketball as an approved activity, and the fact that he was doing so to maintain physical fitness, which it was acknowledged, was an important part of his work, does not mean that travelling to the basketball match was part of his employment, or even an extension of his employment duties.

24. The section clearly does not apply when an employee is off duty. The relevant law was clearly set out by Windeyer J in the case of Adcock v Commonwealth (1960) 130 CLR 194, where his honour said as follows:

    [Para 210] [section 9A of the Act] cannot, I think, have any application in the case of an employee who is required to ‘live in’ at his place of employment while he is in fact living in. The expressions ‘shortest convenient route for the journey’, ‘substantial interruption’ or ‘substantial deviation’ can have no sensible meaning in such a case. An excursion made by a man living at his place of employment for the purpose of going to the pictures in his hours off duty is not related or incidental to his employment’. (…) It is comparable rather with an excursion that for his own purposes an employee living at home makes in the evening after he has got home.

25. Essentially, that case follows the High Court decision in Commonwealth v Wright (1956) 96 CLR 536 where Fulliger J stated as follows:

    There must be a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties.

26. In this case there was a clear break between the time the Applicant finished his normal work duties and the time of the accident. Further, as enunciated by Windeyer J above, travelling to what is essentially a recreational activity was not related or incidental to the Applicant’s employment for the purposes of the section. Even though maintaining physical fitness may have been an overall requirement of his work, he was not required to play basketball and the excursion can best be characterised as being for his own purposes, rather than work related within the meaning of the relevant section.   

27. It was put to the Tribunal by the Applicant that because the 1930 Act has been repealed, it should not apply. Unfortunately for the Applicant, the law is quite clear that his claim must be dealt with according to the law at the time his injury occurred.

28. Accordingly, the correct and preferable decision is to affirm the decision under review.

29. I can understand why the Applicant might regard the decision as being unfair. He was called up for service, and responded positively. Being physically fit was an overall requirement of his employment. The difficulty for him is that the circumstances of his injury do have a sufficient nexus to fall within the requirements of the relevant sections.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 11 December 2023

Date(s) of hearing:	16 November 2023
Advocate for the Applicant:	Susan Howard
Solicitors for the Respondent:	Jack Pembroke-Birss