Bucknall and Military Rehabilitation and Compensation Commission

[2007] AATA 2014

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2014

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  A2005/356

VETERAN’S   APPEALS   DIVISION		)
Re		TARA BUCKNALL

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

Date5 December 2007

PlaceCanberra

Decision

1.     The reviewable decision of the Military Rehabilitation and Compensation Commission made 14 November 2005 is set aside.

2. In substitution for the decision set aside it is decided that Ms Bucknall is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury being a depressive disorder suffered by her as a result of an incident which occurred on 13 November 1992.

3.     The parties have liberty to apply within 14 days in relation to costs.  Should such an application not be made the Commission shall pay the costs of the proceedings incurred by Ms Bucknall.

….................................................

J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – Service personnel – Off duty -- Living on Base – Sexual assault leading to mental injury - Injury occurred whilst returning from a social outing – Whether injury arising out of employment - Whether injury have occurred but for employment – Whether section 48(4) prevents compensation being paid – Injury arose out of employment

Victims of Crime (Financial Assistance) Act 1993 (ACT), s10

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 6, 14, 48

Comcare v Mather & Mitchell (1995) 56 FCR 456

Danvers v Commissioner for Railways (N.S.W.) (1969) 122 CLR 529

Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473

Kennedy v Telstra Corporation (1995) 6 FCR 160

Kilmaster v Repatriation Commission (unreported, 15/10/1998, decision 13371)

Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

5 December 2007

INTRODUCTION

1.      In November 1992 Ms Bucknall was injured in an assault upon her by a fellow employee.  Her claim for compensation for the injury under the Safety, Rehabilitation and Compensation Act 1988 has been rejected by the Commission on the basis that the injury was not an injury “arising out of, or in the course of” her employment.

2.      For the reasons which follow we have decided that the decision of the Commission should be set aside and that in substitution it should be decided that the Commission is liable to pay to Ms Bucknall compensation in accordance with the Act in respect of the injury.

EVIDENCE AND FINDINGS OF FACT

3.      Unless otherwise stated the following findings of fact are based on the evidence of Ms Bucknall who was an honest and reliable witness.  We are satisfied of the facts found on the balance of probabilities.

4.      In November 1992 Ms Bucknall was a Staff Cadet in First Class at the Royal Military College, Duntroon in the Australian Capital Territory.  As a requirement of her service Ms Bucknall resided at the College.

5.      During the evening of 13 November 1992 Ms Bucknall was on authorised “local leave” from the College and attended Mooseheads Tavern in Canberra with other cadets who were members of her class.  The tavern was regularly frequented by College cadets, a fact known to Ms Bucknall’s superior officers.  There had been incidents of disciplinary action taken against cadets in relation to conduct occurring at the tavern whilst the cadets were off duty.

6.      Under the rules which governed Ms Bucknall at the time she was required to sign her company leave book before leaving the College grounds, required to remain within 150 km radius of the College and, on that evening, required to return to the College by midnight as she was to take part in an exercise beginning the following morning.  Ms Bucknall’s evidence as to the terms on which local leave could be taken is corroborated by the Corps of Staff Cadets Standing Orders in force at the time.[1]  Local leave was a right and leave entitlements could be withdrawn by superior officers in certain circumstances.  Failure to comply with the terms of leave could result in disciplinary action.  On the evening of 13 November 1992 Ms Bucknall complied with the terms of her leave and there is no evidence of misconduct on her part whatsoever.

[1] Ex.A6.

7.      Having attended Mooseheads Tavern and socialised with her peers during the evening Ms Bucknall decided to take a taxi to ensure that she returned to the College by the required time.  She did not proceed with this plan as she was offered a lift back to the College by a fellow cadet who was a classmate and known to her.  The cadet told Ms Bucknall that he wished to talk to her concerning another cadet known to them both.  Ms Bucknall accepted the offer.  On the way back to the College the cadet who offered Ms Bucknall the lift drove her to a site near the College and sexually assaulted her.  As a result of this assault Ms Bucknall suffered a depressive disorder.

8.      Ms Bucknall was assessed regularly as an incident of her training.  In reports of those assessments she was told that she needed to develop a “leadership presence” and to be more active in her peer group.[2]  These ongoing assessments included a grading of Ms Bucknall’s “group influence”.  This grading was a factor in determining her future career.  She understood that the assessment of her “group influence” involved consideration of her interaction with, and acceptance by, her peer group and how well she was able to influence members of the group in a leadership role.  Ms Bucknall was encouraged by those who carried out her assessments to spend time with her peers outside the College.

[2] Ex.A3.

9.      Ms Miller gave evidence.  She is a Lieutenant Colonel in the Australian Army and was a classmate of Ms Bucknall at the College in 1991 and 1992.  On the basis of Ms Miller’s evidence we find the facts set out in the following paragraph.

10.     During 1991 and 1992 strong emphasis was placed on peer acceptance at the College.  Peer acceptance was seen as easing relationships between cadets and between officers and a means of assisting in the creation of a functional working environment.  Cadets were expected by their superiors to socialise with their peers both inside and outside of the College and to develop a rapport with them.  There was “a strong ethos amongst Cadets that if you were socialising off base that you would socialise at Mooseheads.” [3]

[3] Ex.A8.

11.     On the basis of the evidence of Ms Bucknall and Ms Miller as to the environment at the college and the assessment process to which Ms Bucknall was subject, we are satisfied that Ms Bucknall was actively encouraged by her employer to socialise with her classmates both on and off the College grounds.

12.     It is not in dispute that as a consequence of the assault Ms Bucknall suffers a depressive disorder which is a “mental injury” for the purposes of the definition of “injury” in section 4 of the Act. This is a proper concession to be made. The argument before us proceeded on the basis that the condition suffered by Ms Bucknall was an injury other than a disease and we are satisfied that this is an appropriate manner in which to consider the claim.

13.     On 18 February 2005 Ms Bucknall applied to the Magistrates Court in Canberra for financial assistance pursuant to the Victims of Crime (Financial Assistance) Act 1993 (ACT). One of the injuries for which she claimed financial assistance was depressive disorder.  In October or November 2006 Ms Bucknall received a payment of financial assistance under the Act.

14.     After the hearing concluded with the consent of the parties we took a copy of the application into evidence.[4]  In the application Ms Bucknall applied for special assistance and expenses of $26, being the cost of a police report filed with the application.  There was no other claim for expenses or loss of earnings.  Ms Bucknall specifically stated that a claim had been made to the Military Compensation Resolution Service for medical expenses and lost wages.

[4] Ex. T1.

LEGAL FRAMEWORK

15. Section 14 of the Act provides for an employee who suffers an injury to receive compensation under the Act.

The relevant parts of the definition of “injury” for the purposes of the Act are:

“’injury’ means

… (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 ……” [5]

[5] Section 4.

16.Subsection 6(1)(a) provides:

Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

(a)  as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment…

17.     Section 10 of the Victims of Crime (Financial Assistance) Act 1983 (Cth) provides for the payment of financial assistance to primary victims of crime.  Ms Bucknall was entitled to a payment under this Act.  Financial assistance is payable for expenses reasonably incurred as a result of a criminal injury, pecuniary loss as a result of incapacity for work and reasonable compensation for pain and suffering.

18. Subsection 48(4) of the Safety, Rehabilitation and Compensation Act 1988  provides in part:

Compensation is not payable under this Act to the employee in respect of the injury, loss or damage…… after the date on which the damages were recovered by the employee…….

Subsection 48(5) of the same Act provides in part:

Subsection (4) does not apply if the damages were recovered…

… (c)  as a result of an action for non‑economic loss…

ISSUES FOR DETERMINATION

19.The following issues arise for determination.

A.  Was the injury suffered by Ms Bucknall a mental injury which arose “in the course of” her employment?

B.  Was the injury suffered by Ms Bucknall a mental injury which “arose out of” her employment?

C.  Was the mental injury sustained “as a result of an act of violence that would not have occurred but for” Ms Bucknall’s employment?

D. Does section 48(4) of the Safety, Rehabilitation and Compensation Act 1988 prevent compensation being paid to Ms Bucknall?

REASONING

A.  Was the injury suffered by Ms Bucknall a mental injury which arose “in the course of” her employment?

20.     The determination of this issue requires two steps.  First it is necessary to characterise the periods of work and the nature of the time when the injury occurred.  Secondly, it is necessary to determine whether the employee’s activity at the time of the injury was induced or encouraged by the employer: Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473; Comcare v Mather & Mitchell (1995) 56 FCR 456 at 460.

21.     It was argued for Ms Bucknall that as she was required to live at the College and her leaving the grounds was subject to restrictions (including the need to sign a leave book) the whole of her posting for training at Duntroon was one period of employment.  On this basis it was argued that the injury arose in the course of that employment.

22.     Comcare argued that the assault occurred in an interval between two discrete periods of employment and that the posting should not be regarded as one period.  It was argued also that the employer had not encouraged Ms Bucknall to attend the Tavern on that evening and that the decision to do so, and to accompany her classmate on the way home, were personal decisions of Ms Bucknall.

23.     In Hatzimanolis v A.N.I. Corporation Limited (supra) the High Court reviewed many of the decisions as to the meaning of “in the course of employment” and traced the development of the principles applicable in applying this requirement to the facts of a particular case.  The Court concluded (at page 484)::

“Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.  Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.  In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’”.

The quotation included was from the Court’s decision in Danvers v Commissioner for Railways (N.S.W.) (1969) 122 CLR 529 at 537.

24.     It is our view that the period of leave which Ms Bucknall took on 13 November 1992 was an interlude within an overall period of work and not a break between two discrete periods.  We have reached this conclusion on the basis of the following facts:

1)    Ms Bucknall was required to sign a leave book before leaving the College grounds;

2)    Ms Bucknall was required to remain within a specified distance of the College during her absence;

3)    Ms Bucknall was required to return to the College by midnight, several hours before she was required to undertake her next duty;

4)    during the time in question Ms Bucknall had been socialising with fellow cadets and travelling to and from the place where that socialization took place;

5)    Ms Bucknall was encouraged by her employer to socialise with her peers outside the College when not on duty.

25.     In reaching the conclusion set out in the preceding paragraph we have not accepted Ms Bucknall’s argument that the whole of her posting was one period of employment.  Our decision is limited to the interval which occurred on 13 November 1992 in the circumstances which existed at the time.  Periods of leave in other circumstances may amount to breaks between discreet periods of employment.

26.     We also conclude that the injury sustained by Ms Bucknall was sustained within the course of her employment as it occurred whilst she was engaged in the activity of socialisation with her peers which, for the reasons already stated, was encouraged by her employer.  “Encouragement” does not have a narrow meaning and is not limited to a particular activity or place: Comcare v Mather & Mitchell (supra).  Ms Bucknall left the College to attend Mooseheads Tavern with members of her class.  She accepted an invitation of a classmate to drive her back to the College having been told by him that he wished to discuss another member of the group.  The whole of the evening’s activity, up to the point of the assault, was part of the socialisation in which Ms Bucknall engaged.  The assault was perpetrated by a member of Ms Bucknall’s peer group in the course of the return journey to the College.

27.     Comcare argued that we should take into account that the evidence established that only about one half of Ms Bucknall’s classmates were at the tavern that evening.  We are of the view that the number of classmates present is irrelevant as the activity which we have found was encouraged was socialisation with classmates, not the socialisation with all of the classmates together at one time.

28.      We have also taken into account “the general nature, terms and circumstances of the employment” as referred to by the High Court.  As set out in our findings of fact Ms Bucknall was subject to military discipline during the period when the assault occurred and her employer exercised greater control during this time than would be found normally in a civilian setting.

B.  Was the injury suffered by Ms Bucknall a mental injury which “arose out of” her employment?

29.     In the light of the conclusion we have reached already it is not necessary that we consider issues B and C, but in case we are incorrect in our conclusion it is appropriate that we do so.

30.     The expression “arose out of …… employment”  requires a causal, rather than a merely temporal connection and does not import terms such as “sole, dominant , direct or proximate” : Roncevich v Repatriation Commission (2005) 222 CLR 115 at pp 125-6. The High Court was dealing with different legislation to that before us but was considering the phrase “arose out of defence service”.  The Court said that whether an event arises “out of” an activity ‘depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties.” [6]

[6] At para. 23.

31.     Considering the circumstances in which Ms Bucknall was assaulted and the role of her employer in encouraging the socialisation that we have referred to previously we find that the injury suffered by her “arose out of” her employment.  The causative factors which are not merely temporal are the encouragement of the employer for the socialisation to take place, the fact that the assault was occasioned by a fellow employee who had requested Ms Bucknall accompany him, and the assault occurring as Ms Bucknall was returning to the College from a social gathering of her peers.

32.     We find support for our conclusion in the dictum of Madgwick J. in Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1. Although His Honour did not finally decide the point he expressed the view on a tentative basis that the requirement of “arising out of “ employment is met if “there can be shown, as a matter of common sense, some substantial link or connection with the employment which is causal and not merely temporal.” [7]  In our view the factors referred to in the preceding paragraph provide such a substantial link which is causal.

[7] At para. 55.

33.     There is support for our view in a decision of the Tribunal in Kilmaster v Repatriation Commission (unreported, 15/10/1998, decision 13371).  In that decision the Tribunal considered the application of the phrase “arose out of” defence service in the same legislation as was before the High Court in Roncevich.  The Tribunal found that an injury suffered by a soldier as he was returning defence force equipment borrowed by him for his personal use arose from his defence service.  This conclusion was based on the finding that there was a direction of the employer that borrowed equipment be returned as soon as practicable, and that it be secured on return.  This was contrasted with a hypothetical injury suffered when the equipment was being used for personal purposes, in which case there would be no causal link.  In Ms Bucknall’s situation there was no direction from her employer but there was an expectation of involvement with fellow employees.  These factors provide the causal link between the employment and the injury in contrast to an injury suffered by an employee engaged in purely personal activity.

C.  Was the mental injury sustained “as a result of an act of violence that would not have occurred but for” Ms Bucknall’s employment?

34.     In case we are wrong in our decisions so far we turn to consider whether the provisions of subsection 6(1)(a) of the Act apply so that the injury suffered by Ms Bucknall is to be treated as having arisen out of, or in the course of, her employment.

35.     In Kennedy v Telstra Corporation (1995) 6 FCR 160 the Federal Court considered the situation in which an employee was assaulted on the premises of a hotel at which he was staying overnight. The hotel was in an area to which he was assigned to work and which was remote from his home. The assault was by a group of strangers. In relation to subsection 6(1)(a) the Court said:

“On a commonsense and practical application of the "but for" test, there is no causal nexus between the employment or the performance by the employee of the duties or functions of his employment and the assault.  The assault arose from the confrontation of two groups late at night which was not related in any way to the performance by the applicant of the duties or functions in his employment." [8]

[8] At p. 170.

36.     For the reasons already stated and on the basis of the facts set out we have found that there was a causal nexus between Ms Bucknall’s employment and the assault upon her which caused the injury.  In our view this same causal nexus satisfies the requirement of subsection 6(1)(a).  In this case the injury arose from an assault by fellow employee in circumstances of socialisation by Ms Bucknall with her peers as encouraged by her employer.  This socialising was encouraged as a function of her training and thus her employment.

37.     Our decision is in accordance with the guidance provided by Madgwick J. in the Federal Court in Military Rehabilitation and Compensation Commission v Roberts to which we have previously referred.  His Honour observed that “it is clear that s. 6(1)(a) was intended to have a generous application where a Commonwealth employee is injured by a violent act." [9] In that matter the Court described the injured employee as “doing what her employer envisaged and expected she would do.  She was in no sense behaving in such a way that it would be anomalous to say that ensuring violence would not have the occurred ‘but-for’ the employment." [10]  This description is equally applicable to Ms Bucknall.

[9] Para.62.

[10] Para. 64.

38.     It was argued on behalf of Comcare that the decision in Roberts indicated that the location of the assault (in that case within the College grounds) was important and was a relevant difference in Ms Bucknall’s case.  Whilst the location of the assault was a relevant factor in the earlier decision, nothing was said to support the proposition that the location was a deciding factor. On the contrary it is just one factor for consideration in deciding whether the necessary nexus has been established.

D.Does section 48(4) of the Safety, Rehabilitation and Compensation Act 1988 prevent compensation being paid to Ms Bucknall?

39. It is clear from the application filed by Ms Bucknall in the Magistrates Court that, apart from the cost of the police report, her claim was for non-economic loss. The cost of the police report was a cost incurred in bringing the application and not an expense incurred as a result of the assault upon Ms Bucknall. We do not have direct evidence as to how the payment received by Ms Bucknall was calculated but on the basis of what was claimed we are satisfied that such payment was for non-economic loss. In accordance with subsection 48(5)(c) of the Safety, Rehabilitation and Compensation Act 1988 the provisions of subsection 48(4) do not apply to Ms Bucknall and section 48 does not prevent the payment of compensation to her.

40. Section 4(1) of the Safety, Rehabilitation and Compensation Act 1988 contains a definition of “non-economic loss”, but this definition is restricted in its application to an employee who has suffered an injury resulting in permanent impairment.  However we note that the interpretation we have adopted is consistent with this definition.

DECISION

41.     The reviewable decision of the Military Rehabilitation and Compensation Commission made 14 November 2005 is set aside.

42. In substitution for the decision set aside it is decided that Ms Bucknall is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury being a depressive disorder suffered by her as a result of an incident which occurred on 13 November 1992.

43.     The parties have liberty to apply within 14 days in relation to costs.  Should such an application not be made the Commission shall pay the costs of the proceedings incurred by Ms Bucknall.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.

Signed:          .....................................................................................

Geoff Foley, Associate

Date of Hearing  31 August 2007

Date of Decision  5 December 2007

Counsel for the Applicant           Leo Gray

Solicitor for the Applicant            Pappas J. Attorney

Counsel for the Respondent      Ben Dube

Solicitor for the Respondent      Sparke Helmore