Clark and Military Rehabilitation and Compensation Commission
[2005] AATA 436
•13 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 436
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/114
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID ANDREW CLARK Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date13 May 2005
PlaceHobart
Decision The decision under review is set aside and the matter remitted to the respondent with the following direction.
(a) The respondent is liable to pay compensation to the applicant in accordance within the provisions of the Act in respect to the injuries he suffered in the accident which occurred at HMAS Stirling in Western Australia on 26 February 1999.
(b) The amount of compensation payable to the applicant is to be assessed.
[Sgd The Hon R J Groom]
Deputy President
CATCHWORDS
Compensation – Commonwealth employee – work related function at naval base – consumption of alcohol – riding motorcycle under the influence of alcohol – injured whilst travelling between “place of work” and “place of residence” – injured within naval base – meaning of “place of work” – “serious and wilful” misconduct – “serious and permanent impairment” – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 – ss4(1), 4(13), 5(2)(b), 6(1)(b),(1A), (2), (3), 14(3)
Maunder v Commonwealth (1983) 51 ALR 44
Hatzimanolis v ANI Corporation Limited (1992) 177 CLR 473
Gregory v Comcare (1997) 72 FCR 196.
Comcare v Odea 150 ALR 318
Re Duncan and Commonwealth of Australia (1983) 5 ALD 431
Re Moore and Comcare AAT No. 11427
Re Grime and Telstra Corporation Limited (1994) 20 AAR 43Jones v Dunkel (1959) 101 CLR 298
Bessey v Australian Post Corporation (2000) 60 ALD 529 at 537.
Weaver v Tredegar Iron and Coal Co Ltd [1940] AC 955
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281REASONS FOR DECISION
13 May 2005 The Hon R J Groom (Deputy President) 1. The applicant enlisted in the Royal Australian Navy (“the Navy”) on 16 January 1995. He was then 18 years of age having been born on 26 December 1976.
2. On 26 February 1999 the applicant suffered serious injuries as a result of a single vehicle motor cycle accident which occurred on that day at HMAS Stirling, a naval base situated at Garden Island in Western Australia.
3. At the time of the accident the applicant was a Commonwealth employee being employed by the Navy as an Able Seaman Clearance Diver with the Australian Clearance Diving Team 4 (“the diving team”) based at HMAS Stirling.
4. The applicant claimed compensation pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of the injuries he suffered in the accident.
5. On 15 June 2001 a review officer of the Military Compensation and Review Service of the Commonwealth Department of Veterans’ Affairs affirmed an earlier departmental determination of 22 June 1999, which disallowed the applicant’s claim for compensation. It is that decision of 15 June 2001 which is now being reviewed by this Tribunal.
6. The hearing of this review application was held in Hobart on 7, 8 and 9 February 2005. Mr David Richards appeared for the applicant and Mr Tom Howe for the respondent. Following the hearing written submissions were received from the respondent’s solicitors on 21 February 2005 and from the applicant’s solicitors on 3 March 2005.
7. Five witnesses gave evidence at the hearing. They included three people who were serving in the diving team with the applicant at the relevant time, namely Lieutenant Adam McPhail, Able Seaman Clearance Diver William Taylor and Able Seaman Clearance Diver Adam Goodwin, as well as two pathologists, Dr Byron Collins and Dr Christopher Lawrence. All the witnesses, except Dr Lawrence, gave their evidence by telephone.
Several documentary exhibits were tendered by the parties and received into evidence including the “T” Documents, lodged pursuant to s37 of the Administrative Appeals Tribunal 1975.
8. The essential facts of this application are that the applicant had been on duty at HMAS Stirling on the day of his accident. In the afternoon, he attended, along with other members of the diving team, a barbecue function at a recreational area within the base called Camp Markham. At the function, the applicant consumed food, alcohol and soft drinks. Following the function he mounted his motorcycle to travel directly to his residence at nearby Port Kennedy. After travelling a short distance the applicant lost control of his vehicle which then struck a lamp post. He was thrown from his motorcycle and suffered serious injuries. The accident occurred at approximately 6.15 pm on Dampier Road, which is the road on the causeway leading to the exit from HMAS Stirling.
9. At all relevant times the applicant was a member of the defence force and therefore an “employee” within the provisions of the Act (see s5(2)(b)). Under the Act the employer is liable to pay compensation in respect of an “injury” suffered by an employee if the injury results in “… death, incapacity for work or impairment …”. (see s14(1))
10. In s4(1) of the Act the word “injury” is relevantly defined as follows:
“`injury’ means:
(a) …
(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) …”.
11. Section 6 of the Act extends the circumstances in which an injury to an employee is compensable under the Act. It relevantly provides as follows:
(1) 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) …
(b) while the employee:
(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;
(ii) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;
(iii) …
(iv)was travelling between one of his or her places of work and another of his or her places of work;
(1A) For the purposes of this section:
(a)a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or
(b) a journey to such a place of residence is taken to end at that boundary.
(1B) …
(2) Subparagraph (1)(b)(ii), (iii), (iv), (v) or (vii) does not apply where the travel:
(a)was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route; or
(b)was interrupted in a way that substantially increased the risk of sustaining an injury.
(3) Subsection (1) does not apply where an employee sustains an injury:
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.”
12. Section 14(3) of the Act has broad application to compensation claims under the Act. It provides:
“…
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
13. “Impairment” is defined in s4 as:
“`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.”
14. Section 4(13) states as follows:
“For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) shall be taken to be guilty of serious and wilful misconduct.”
15. “Place of work” is defined in s4 as meaning:
“`place of work’, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.”
The Facts
16. Before considering the legal issues in this application, I will make findings on key factual issues. These include the purpose and nature of the function at Camp Markham, the amount of alcohol consumed at the function by the applicant, the accident and its cause and the injuries suffered by the applicant.
17. As far as the factual issues in this application are concerned, the Tribunal had the advantage of hearing the evidence of Lt McPhail, ABCD Taylor and ABCD Goodwin. In addition it had available to it a number of statements made by navy personnel who were present at the function and/or accident, navy investigator’s notes of interviews, Auscript transcripts of interviews conducted by Lieutenant Simon Moncrieff, reports of Lieutenant N R Greene, and by Lieutenant Moncrieff, various police reports on the accident as well as other written material.
Purpose and Nature of Function at Camp Markham
Organisation and Arrangements
18. The function at Camp Markham had a definite purpose. It was held to welcome new members to the diving team and to farewell those members who were being deployed to Townsville and then on to the United States of America for military exercises.
19. It was organised by the diving team’s social convenor ABCD Shields. At the time he was manager of the team fund or “kitty”. He approached his Warrant officer who thought it was a “good idea” and he also raised it with the Executive Officer Lt McPhail. Notes of the navy investigator’s interview with Lt McPhail on 3 March 1999 included the following:
“Early February approached by A.B. Shields and asked ` if the team could have a get together prior to February 26.
Given OK.” (See T34)
The words “I then gave him permission to organise a social function” were deleted from a typed version of the same interview. (T38)
20. A pro-forma application for the function was submitted to the Naval Police Coxswain’s office at HMAS Stirling in advance of the function. The entry indicated the function would be held for the afternoon from noon on 26 February 1999 (See T 82) (i.e. T documents p82). The notation in the diary suggested 60 people may attend.
21. The prescribed normal working hours for the diving team were between 7.50 am and 3.50 pm each working day. As a general rule all personnel commenced leave at 4 pm. (See T95) There is evidence that the team did not always work until 4 pm, including on some Fridays, depending on the work available at the time. The question as to when leave was actually granted on the day will be considered in detail later in these reasons.
22. The function was paid for out of a team fund or “kitty” accumulated from regular voluntary payments by members of the diving team.
I am satisfied on the evidence that there was initially some attempt by Lt McPhail to persuade the diving team members not to disclose that the “kitty” was used to fund the function, apparently because the existence of a “kitty” was contrary to navy policy. He told the navy investigator on 3 March 1999 that :
“All members $10 each to pay for costs.” (T34).
He acknowledged to Lt Moncrieff that a team fund existed (A9). In his evidence to the Tribunal he said that his recollection was that the “kitty” was not used. He said:
“My recollection is that it was not in that we actually had to contribute $10 each because the majority of the team weren’t going to be there, so it probably wasn’t appropriate that it was used”.
Contrary to Lt McPhail’s recollection I do find that the “kitty” was used. The use of the “kitty” supports the view that this was a team function rather than merely a social event for those who paid separately for the privilege.
23. Members of the team arrived at the function at various times. Some attended between 12 and 1pm, and others after 1 pm. Prior to attendance at the function an official team photograph was taken of the diving team, which was being deployed to Townsville and then to the United States. That photograph was taken at about 11.30 am. A barbecue and beer keg were set up and sausages cooked. Soft drinks were also available. Personnel began socialising and drinking and discussing issues of interest. There is evidence that work was discussed. For example, Lt McPhail said:
“I grabbed a glass of beer and a sausage sizzle and socialised with the rest of the members discussing the next coming week’s deployment to Townsville and their ongoing trip to the States after that.”
24. Although there was some evidence suggesting that presentation of plaques and other formalities took place, I am satisfied that there were in fact no formal speeches or proceedings at the function. Although again there is some conflicting evidence on this point, it would appear that the Commanding Officer of the diving team was not at the base on the day and so did not attend. Lt McPhail, the Executive Officer and the next most senior officer, did attend the function. He was present for some 2 hours. Other senior personnel from the team were in attendance. Lt McPhail and Petty Officer Davies left at about 3 pm, although there is evidence that PO Davies did return at about 4.15pm. Members of the team commenced leaving from some time after 2 pm, however quite a number were still at the function at 3 pm when Lt McPhail and PO Davies left. I am satisfied that many left between 3 and 4 pm, although quite a number were still at the function after 4 pm. In due course there were only 8 or so remaining at the function and they continued there until around about 5.30 pm when a number of those remaining helped clean up the site. There is no evidence to indicate that an announcement was made that the function had concluded.
Who Attended the Function
25. There was some dispute about exactly how many members of the diving team attended the function.
ABCD Taylor gave evidence that:
“… from my recollection it was the entire diving team and I suppose you’re looking at about 40 people.” (Transcript p27).
In contrast Lt McPhail expressed the view:
“Probably less than 20, I didn’t actually take numbers and names (Moncrieff interview at A9).
When it was put to him in cross-examination that everyone working that day in the team, except administrative staff attended, Lt McPhail said:
“I don’t have any comment about that”. (See Transcript p123)
ABCD Rutherford said:
“Everyone who was at the team that day was there.” (Moncrieff interview at A9)
LSCD Rose was asked if any members of the team who were on duty that day didn’t attend the function. He answered: “No” (Moncrieff interview at A9)
ABCD Goodwin stated there were “45, 50 I suppose” in the team at the time. He said they were all present at the function except:
“… The guys that are away” … and “You won’t get the admin staff turn up”. (Moncrieff interview at A9)
ABCD Eaton said when interviewed by Mr Moncrieff on 16 May 2000:
“ … I suppose everyone who went to work that day attended.”
He said:
“… maybe 30 or 40 or something.” (Moncrieff interview at A9)
26. I do not accept Lt McPhail’s claim that less than 20 attended and find, after considering all of the evidence, that all, or almost all, of the diving team who were at work at the base that day in fact attended the function. The only exception may have been the administrative staff who didn’t usually attend such functions, but continued with their duties. The number attending was in excess of 30 people and could have been as many as 40 people. There is no clear evidence indicating that named individuals in the team did not actually attend.
Was Attendance Compulsory?
27. A further critical question is whether it was compulsory for members of the diving team to attend the function on the day. Again this was an issue in dispute at the hearing.
Lt McPhail said that the function was “social”. He said:
“… personnel were not required to attend …”. (See T38)
However most of the diving team who were witnesses or made statements, expressed the view that they had to attend. ABCD Taylor said it was compulsory. He said if it wasn’t compulsory:
“…. You’d just go home, you wouldn’t turn up”. (Transcript p 45)
ABCD Goodwin also stated it was compulsory, he said:
“You don’t have the barbecue put on and not turn up it. That’s a requirement.” (Transcript p158)
In his interview with Lt Moncrieff he said:
“You have to attend.” ( Moncrieff interview at A9)
ABCD Rutherford said:
“These events, you were required to go”. (Moncrieff interview at A9)
LSCD Rose said:
“… basically you were expect to go down to the function.” (Moncrieff interview at A9)
ABCD Eaton said that if he hadn’t attended the function:
“… I would have got in trouble, I dare say.” (Moncrieff interview at A9)
ABCD Aikin said:
“… leave wasn’t good and you had to attend.” (Moncrieff interview at A9)
He went on to make a most telling comment:
“…. leave wasn’t piped at 12 because if that was I wouldn’t have attended the function, as I said previously I don’t enjoy turning up to them, because I can’t drink or anything like that.” (Transcript of interview 22/5/00 p8 at A9)
LSRD Harvey was more ambivalent when asked:
“Was there any obligation on any member of the team to attend the function, that you know.” He responded: “Not that I know of – don’t know that, sir.” (Moncrieff interview at A9).
POMT Buchback, who was in the administrative section said:
“… there wasn’t any commitment to go ...”. (Moncrieff interview at A9)
LSCD Holloway who was not a member of the diving team in February 1999 and had been charged for leaving a previous function, said that he attended such events and:
“Did not leave prior to the hierarchy leaving.”
28. I am satisfied on the basis of the evidence that it was the clear understanding of most members of the diving team that it was necessary for them to attend the function at Camp Markham on 26 February 1999. At the same time there is no evidence indicating members were told that they didn’t have to attend.
If Lt McPhail did consider that attendance at the function was voluntary, he certainly did not convey it to the rank and file within the diving team. That is why Lt Moncrieff stated in the very first recommendation he made:
“1. That the issue of attendance at team functions as mandatory or voluntary be specifically addressed prior to the function, and in a formal way”. (See A9)
29. There was evidence that on a previous occasion, three members of the diving team had been formally charged for failing to attend a team function. There was a belief between team members that charges were laid for failing to attend, thus reinforcing their understanding that attendance was compulsory. However the charge was for failing to obey a lawful direction. Certain team members were directed by a Chief Petty Officer not to leave until after the official part of the function was concluded. These circumstances were somewhat different to those which applied to the function held on 26 February 1999.
30. I find that it was a common understanding among the members of the diving team that they were in fact required to attend the function at Camp Markham, and this is why almost all, if not all, members actually attended the function at Camp Markham, including senior personnel.
When was Leave Granted?
31. The question as to if and when leave was granted on 26 February 1999 is another issue in dispute in this application.
ABCD Taylor said he was told by “our bosses” that “leave was not good until 2 …”. (Transcript p26). He initially could not say who told him this, but later said it was “our Element Chief” who we thought was probably Chief Petty Officer Maxwell, but wasn’t absolutely sure. He was adamant that leave had not be “piped” or announced.
LT McPhail said in evidence that:
“I … remember granting leave at 13.00 and that was passed on to the department heads and onwards through the chain of command to their respective juniors ….”.
He said:
“… There was no specific pipe made.” (Transcript p115)
This contradicted the statement he made to the police on 4 March 1999 when he said:
“At 1200 on Friday 26 February I piped leave for the team.” (T p 38)
Later in his evidence at the hearing, he said he had made a mistake and in fact had granted leave at 1200. In his statement to Lt Moncrieff he said when asked how leave was promulgated:
“… I would have advised the Petty Officers in charge of the individual elements.” (Moncrieff interview at A9)
ABCD Goodwin said he didn’t hear leave being granted on the day. (Transcript p148)
ABCD Walker was asked when leave was good and he said:
“…. We just went there and I saw a couple of other people take off so I just assumed it was good, so I took off myself.” (Moncrieff interview at A9)
ABCD Rutherford said:
“… you wouldn’t leave the barbecue until you had a fair understanding that yeah okay, you’re good to go.” (Moncrieff interview at A9)
LSRD Harvey said he could not recall any indication on that day as to the status of leave, but added that:
“… if we get dressed in civilian attire and we’re having a function that’s generally leave.” (Moncrieff interview at A9)
He later said:
“Once O Group’s finished it’s basically leave.” (Moncrieff interview at A9)
ABCD Eaton said when interviewed on 16 May 2000 that:
“… we were told to go down to Camp Markham and leave would be given from there.”
He added that leave was not given in a formal sense at Camp Markham. (Moncrieff interview at A9)
POMT Buchback told Lt Moncrieff:
“I don’t recall leave being piped over the Tannoy because that was rarely done anyway, it was the Department or a Department thing.” (Moncrieff interview at A9)
ABCD Aiken said:
“Leave wasn’t good and you had to attend.” (Moncrieff interview A9)
He added:
“… leave wasn’t piped at 12 because if that was I wouldn’t have attended the function.”
“… I don’t enjoy turning up to them …”.
I note with respect to the issue of leave that Lt Moncrieff in his report 7 July 2000 made the following comments:
“The system in my finding lacks precision and a clear potential exists for uncertainty being created about the status of leave. The very fact that the evidence was conflicted on this point establishes a basis for the team’s practise as to the promulgation of leave.”
Lt Moncrieff made the following recommendations concerning leave in his report of 7 July 2000:
“2.That the granting of leave procedures within Auscdt 4 be further formalised; and
3.That generally and as a matter of strict policy the granting or otherwise of leave to attend, or to have effect from, team functions of a social nature be expressly and unambiguously communicated in a formal way.” (A9)
32. After carefully considering all of the evidence, including that referred to above, I find that leave was not piped or formally announced and it was quite unclear as to exactly when members of the team were free to take their leave. Leave was not good prior to the function at Camp Markham. The uncertainty of the leave arrangement was perhaps best expressed by ABCD Walker in his remarks referred to above. The team members generally believed that they were required to attend the function and could not simply proceed directly home.
The “Cleanup”
33. Much was made of the cleanup which occurred when only a small group remained at Camp Markham and the function had effectively come to an end. ABCD Taylor said the applicant was present when:
“… we cleaned up the area and once everything was sort of packed away, including the left over beer in the keg into my car”. (Transcript p 28)
“It was just a clean up of any obvious rubbish in the area.” (Transcript p99).
He could not recall who did what at the cleanup. Standing Order 5057 provides that cans and bottles are to be deposited in rubbish bins. (A9)
ABCD Shields said in paragraph 7 of his police statement (Transcript p40),
“Then at approximately 15.30 I started to pack up the barbecue and as there was still some beer in the keg I moved the keg from the back of the Triton Ute and put it on one of the tables and loaded the barbecue gear and AB Walters’ push bike on the back of the Ute. I then departed Camp Markham and went to Auscdt 4 and cleaned up the barbecue gear, put the push bike inside the compound and secured the building.”
34. It is clear that at about 3.30 pm ABCD Shields completed his responsibility as social convenor by removing the barbecue gear and then returning it to Auscdt 4 which was the diving team’s compound at the base and cleaning it. The beer keg was left at Camp Markham. This was a different cleanup to that undertaken at about 5.30 pm by the group who then remained at the function.
I do not find the cleanup of “obvious rubbish” to be significant in determining the true character of the function. The standing order referred to obviously applies regardless of the nature of the function. It could apply when a function is purely social or also when it was genuinely work related.
Consumption of Alcohol by the Applicant
35. The evidence indicates that the applicant arrived at the function soon after 12 noon and remained until about 6 pm and I so find. He was drinking beer and soft drink during that period of time. It is reasonable to infer that he partook of some of the food on offer although there is no specific evidence on that particular point.
36. ABCD Taylor, who was a close friend of the applicant, said in evidence that the applicant was drinking “about a beer an hour” and said there were “no slurred words” and “… we were all quite sober…”. (Transcript p28). Mr Taylor went on to say that there were no signs the applicant was intoxicated or drinking to excess. He told police that when the applicant left on his motorcycle he “… gave the bike a little bit causing the bike to fishtail slightly.” (T45).
37. I am far from convinced by ABCD Taylor’s evidence of the applicant’s sobriety. First, he appears to have allowed his friendship to influence his account in his friend’s favour. In any event, I find that ABCD Taylor had himself consumed sufficient beer to affect his judgment and recall and so made his own observations quite unreliable. Lt Aaron Low had seen the applicant riding his motorcycle just before the accident and arrived on the scene of the accident very soon after it had occurred. He described the scene in his police statement of 9 March 1999. He said:
“One of the drunken clearance divers who had been previously spoken to, insisted on helping the medic. He held the needle in place after she had inserted it.” (T42)
This appeared to be a reference to ABCD Taylor. In evidence he said:
“I was the only one there, that would have to be me.” (Transcript p53)
I find that ABCD Taylor had consumed a considerable amount of beer and was himself under the influence of alcohol at the time of the accident.
38. Police reports on the accident indicate that it was the initial view of the police who attended or investigated the accident that alcohol was a primary cause. The police report at T20 states:
“It is alleged that the victim was heavily intoxicated and as a result of the accident suffered critical injuries.”
A report from Senior Constable Trevor Roy of the Rockhampton Police Station stated that the accident was a:
“… single vehicle accident. Alcohol involved and manner of driving was dangerous.” (T25)
A further police report described the cause of the accident as:
“… a deadly mixture of excessive speed and alcohol.”
These reports are, of course, hearsay. However they do give some indication of the initial impression of those who investigated the accident. They do not carry great weight in themselves, but are at least consistent with other more direct and significant evidence.
It must be said that there is no evidence before the Tribunal from any eye witness indicating that the applicant appeared intoxicated prior to leaving the function.
39. At some point quite late on the day of the function and after the applicant was admitted to hospital, a blood alcohol concentration reading of .190 per cent was obtained using the enzyme method. The analysis was of plasma rather than whole blood. Two expert witnesses gave evidence as to the reliability of this test and its result. Dr Byron Collins, an experienced consultant forensic pathologist was called by the applicant and Dr Christopher Lawrence, a forensic pathologist and Director of Statewide Forensic Services of Tasmania on behalf of the respondent.
40. In brief, Dr Collins expressed serious doubts about the reliability of and accuracy of the reading of .190. He said if a sample is tested using the enzyme technique the reading should be confirmed by an alternative procedure, such as gas chromatography, particularly if the results are to be used for forensic purposes. He said the gas chromatography method was the “gold standard”. Dr Collins also suggested there were risks of contamination of the sample if alcohol based disinfectants were used at the site of the venae puncture. He also said the use of plasma rather than whole blood may slightly increase the concentration of alcohol. Dr Collins described the enzyme method as:
“… a useful clinical tool not a useful forensic tool.”
41. Dr Collins said in his report of 10 October 2003 (Exhibit A1):
“If it is established that when Mr Clark was involved in the motorbike accident, his blood alcohol concentration was in the order of 0.19 percent (possibly higher or lower), depending upon the factors already discussed then it would be reasonable to opine his skills associated with safety and properly riding the bike were, in all probability, significantly compromised.”
42. Dr Lawrence told the Tribunal that the enzyme test is not one that should be used for forensic purposes and he agreed the “gold standard” is gas chromatography. (Transcript p217) He further agreed that the enzyme method was such that a further follow up test should be conducted if it is to be used for forensic purposes. Dr Lawrence was asked by Mr Howe:
“If one is talking a BAC test result of .19, based on your knowledge and understanding of the variables, would you say that nonetheless that reading is a reasonably reliable indicator of significant consumption of alcohol?
He answered “yes”. (Transcript p204)
43. I conclude on the evidence that the applicant had consumed a considerable amount of beer at the barbecue function and was under the influence of alcohol and therefore was unable to ride his motorcycle safely when he commenced his journey home. The evidence clearly shows that he was at the function drinking beer over a period of some 6 hours and drinking at a similar rate to those who remained late at Camp Markham. ABCD Taylor and some other “divers” at the accident scene were described by Lt Low in his written statement as being “drunk”. I consider that statement to be an indicator, not only of the state of intoxication of the other divers, but also of the condition of the applicant himself. In addition there is evidence of the extraordinary manner in which the applicant rode his motorcycle after leaving Camp Markham, including fishtailing, accelerating and veering onto the wrong side of the road. As far as the BAC reading of .19 per cent is concerned, I am not entirely satisfied of its accuracy. Indeed the true reading may have been slightly lower. However when the totality of the evidence is considered it satisfies me on the balance of probabilities that the applicant was indeed under the influence of alcohol at the time of the accident.
The Accident
44. Shortly after 6 pm on Friday 26 February 1999, the applicant left Camp Markham on his Kawasaki motorcycle to ride directly to his residence. He was wearing a helmet, but it may not have been properly fastened. ABCD Taylor said as he left the camp that the applicant accelerated and this caused the motorcycle to “fishtail slightly”. The applicant turned left into Dampier Road and headed south towards the main gate of the base. Lt Low was travelling a short distance behind the applicant and saw the motorcycle “accelerate constantly” and it then “veered onto the wrong side of the road”. (T41) The motorcycle went out of sight, but after turning a corner Lt Low again saw the motorcycle. He described what happened as follows:
“As I rounded the corner the motorcycle reappeared into my sight at which point the rider speared the bike left across the two lanes. On reaching the left verge of the road he had the motorcycle upright and travelling parallel to the edge of the road, but on the grass for approximately 30 metres. At this point the motorcycle made contact with a light pole head on. This caused the rider, his helmet and the bike to separate. The rider travelled approximately 20 metres through the air and 15 metres where he came to a stop, face up on his back 35 metres from the impact point. At the same time the rider’s helmet flew off, heading into the bush at the left of the road and his motorcycle rolled side over side to the right side of the road leaving a trail of debris in its wake on Dampier Road.” (T41)
45. Both ABCD Taylor and ABCD Goodwin suggested the cause of the accident may have the presence on the roadway of an animal called a “Tamar”. These animals are described as having the appearance of a “baby wallaby” and often hop onto the road in this area. A police report said:
“Witness suggests objects laying at side of road may have contributed … objects not sighted by police.” (T26)
There is no persuasive evidence that a Tamar was present and caused the accident. I am satisfied that the accident was not caused by any animal or other objects on the road, but rather was caused by the applicant riding under the influence of alcohol and losing control of his vehicle.
The Injuries Suffered by the Applicant
46. The applicant suffered very serious injuries as a result of the accident. The injuries included:
1. Fractured base of skull.
2. Further skull fracture through the left temporo-parietal region.
3.Severe traumatic brain injury with multiple areas of cerebral contusion of both temporal lobes and the right frontal lobe. There was generalised cerebral oedema and small sub-dural haematoma on the left side.
4.Fractured left femur treated by internal fixation.
5.Multiple soft tissue abrasions.
6.Bilateral hemotympanum
47. In a report dated 27 April 1999 by Dr Kim Fong, a specialist in rehabilitation medicine at the Royal Perth Hospital. It was said:
“At this stage David’s future prognosis is of concern. It is almost certain that he will never be able to return to his pre-accident employment as a Naval Diver. The current indications are that David will also not be able to live independently in the future and will require a high degree of assistance with his routine activities of daily living.” (T58)
48. In a later psychological report of 14 November 2000 it was said:
“… that he has sustained significant impairment of brain function.”
49. The applicant’s mother has obtained a power of attorney and was also appointed by the Western Australian Guardianship and Administration Board to administer the applicant’s affairs.
50. At the hearing on 9 February 2005, counsel for the respondent Mr Howe, readily conceded that the applicant had suffered a serious and permanent impairment, and I so find. (See Transcript p233-35)
The Law
51. The issue in this application is whether or not the applicant’s injuries “arose out of, or in the course of, the employee’s employment.” (See s4(1) of the Act)
52. “Arose out of” has been determined by the many authorities to mean an injury actually caused by the employee’s work activities, whereas “in the course of” requires only a temporal connection. In the present case the injuries were not caused by the employee’s work activity and so the relevant question is did they happen “in the course of the employee’s employment”?
53. When workers’ compensation was first established in the various jurisdictions in Australia coverage was strictly limited to an employee’s actual working hours. However since then both through legislation and case law there has been an extension of the breadth of cover to include a range of circumstances in which there is a sufficient link with a person’s employment.
54. Journeys to and from a person’s employment or place of work were originally not considered to be within the normal course of the person’s employment, although the more immediate entry into and departure from the premises of an employer in some limited circumstances did satisfy the test. Lord Atkin said:
“The course of the employment begins when the workman enters the employment and it ceases when he leaves the employment: it being his duty to do both.” (See Weaver v Tredegar Iron and Coal Co Limited [1940] AC 955 at 970)
55. The statutory entitlement of employees to workers’ compensation was generally extended some decades ago to include not merely the immediate entry into and departure from employment, but in the broader sense the whole of an employee’s journey between his or her place of residence and place of work. For the present purposes the key provision is s6(1)(b)(ii) of the Act which I have already set out in paragraph 11 above.
56. In this particular application the Tribunal must therefore consider whether or not the injuries occurred within the applicant’s “course of employment” as that term is generally understood or alternatively whether or not they occurred while the applicant was travelling between his place of work and place of residence.
57. I am satisfied that the attendance by the applicant at Camp Markham was for the purpose of his employment. There was a general understanding within the diving team that members were required to attend. No one in authority said attendance was not required. Such an understanding or belief, or if not dispelled, can be as influential on conduct as a formal order or directive and therefore has the same affect. I find attendance was required. The function was held during the day and much of it occurred during normal working hours. The purpose was plainly work related, namely to welcome new members to the diving team and to farewell others being redeployed to Townsville and then to the United States. All, or almost all, of the team including senior officers attended. Work issues were discussed. All those in attendance were associated with the team. The function was formally approved and the executive officer gave his “OK”. Other duties were not required to be carried out during the afternoon which in itself was an inducement for members of the team to attend. Uniforms were not worn at the function. I do not, however, accept that this fact necessarily indicates that navy personnel are not in the course of their employment. Like other employees they no doubt can be in the course of their employment in various states of attire.
58. I find that at no stage can it be said that the applicant was on a “frolic of his own”, a phrase used in a number of decisions. The function commenced as a work function and it remained a work function until the clean up at about 5.30 pm. Although the numbers of naval personnel then in attendance were fewer its essential character remained. It was still an officially approved function at a place of work attended by work colleagues. It is reasonable to infer that work issues were still being discussed towards the end of the function, although those then present were affected by alcohol. They were still capable of discussing work matters of mutual interest. The applicant had travelled to HMAS Stirling for the purpose of his work on that day and his presence at the base remained a consequence of his work. The consumption of alcohol was condoned by the employer and had commenced at the outset of the function. Senior personnel who attended themselves consumed alcohol.
59. Both counsel referred to numerous authorities in the course of their oral and written submissions. The reality is that a decision in any particular case depends very largely on the special facts and circumstances of that case.
60. Mr Richards for the applicant relied in part on the High Court decision Hatzimanolis (See Hatzimanolis v ANI Corporation Limited (1992) 177 CLR 473). However in my view the circumstances here are very different. In that case a worker was required to be in a remote area and live in accommodation provided by his employer for a limited time until a particular undertaking was completed. It was held that the time spent in the remote locality constituted one overall period of work rather than a series of discrete periods. Here the applicant was attending work at the base each day and then returning after work to his own residence in an adjoining urban area. The injuries did not occur during an interlude in an overall period of work.
61. This case also very different from Gregory v Comcare (1997) 72 FCR 196. In that case the applicant broke his left leg in a soccer match at a farewell party held on a Sunday and attended by fellow RAAF employees, but also wives and children. The applicant had completed his work and had been home before attending on the Sunday for the weekend occasion. In contrast, in this case, the applicant had not been home after work but remained at his place of work.
62. This application is also unlike Maunder v Commonwealth (1983) 51 ALR 44. In that case it was found that the presence of Captain Maunder at a party which commenced at 5.30 pm was until 10.30 pm incidental to his employment, but not until between 2.30 am and 3.30 am when he finally left the premises. The Court there said:
“Being a matter of degree it was a matter of fact for the Tribunal to determine.”
63. There are some similarities, but as well some differences, between the present case and the re-hearing by this Tribunal of Duncan and Commonwealth (1983) 5 ALD 431. That was a case where the applicant had been drinking at the Airmen’s Club after completing his normal duties. The Tribunal said:
“In the present review, we think that the applicant, at no time while he was on the base, put his employment to one side and engaged in a purely private activity. We think that, throughout the whole of the time that he was on the base, his attendance was reasonably incidental to his employment and that, on leaving the base, or perhaps earlier on leaving the Airmen’s Club, he commenced a journey from his employment.”
64. The accident, of course, did not happen at the function, but when the applicant was travelling directly towards his place of residence. If this is a journey claim, the relevance of the function is whether or not it was the applicant’s place of work prior to his departure. The evidence established that the divers had various places of work. They kept and maintained their diving gear at a special compound at HMAS Stirling, but also had a launch and worked in the sea in the vicinity. They could also be deployed elsewhere and so that they could be said to do work in various places. Some of these would be outside HMAS Stirling. The facts indicate that the applicant travelled the short distance from the compound to Camp Markham for the work function. He was at Camp Markham as a direct consequence of this work. I find that it became his place of work.
65. “Place of work” is defined in s4(1) of the Act (see paragraph 15 above). In my view, in the special circumstances of this application, Camp Markham satisfies that definition.
“Employment” extends beyond the limits of the principal activities for which an employee has been engaged to include activities “reasonably incidental thereto”. The earlier test of “reasonably required, expected or authorised” (see Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 at pp 293, 294) was somewhat narrowed by the Full Court in Hatzmanolis. In that case the court held that “authorised” was not an acceptable criterion. It preferred to limit the scope of employment to “expressly or impliedly, induced or encouraged”. Consistent with Hatzmanolis I find that the tests of “required”, “induced” and “encouraged” are all satisfied as far as the Camp Markham function is concerned. These matters are relevant to my determination that the applicant was in fact at his “place of work” at Camp Markham prior to departing for his “place of residence”.
66. I have already found that the true nature of the work related function at Camp Markham did not change until it concluded after the cleanup. It therefore follows that Camp Markham was the applicant’s place of work until he departed on his motorcycle.
67. The facts of this case indicate that the applicant was travelling from his place of work to his place of residence when the accident happened. He had completed all his work related duties at the base, including attending the function, and was heading home. There is no doubt he was taking the most direct route along Dampier Road towards the main exit of the base. There is, however, a complicating circumstance in this case and that is that when the accident happened the applicant was still within the boundary of HMAS Stirling. His place of residence was outside the boundary.
68. Counsel for the respondent, Mr Howe, argued that at the time of the accident the applicant was on a journey to his place of residence. He contended that this Tribunal, in these particular circumstances, is not bound to follow Comcare v Odea 150 ALR 318. In that decision Northrop J expressed the view that a journey “… would end at the boundary of the land comprising the Training Centre.”
69. I am persuaded by the arguments set out in paragraphs 15 and 16 of the respondent’s written submissions which I do not intend to set out in detail. In particular I agree that the proposition that travelling to the employee’s place of residence only commences at the boundary of the base is inconsistent with the presence in the Act of s6(1A). If the legislature had intended the “boundary rule” to apply not only to a place of residence but also a place of work it could have said so in explicit language. I can understand why the legislature would want to limit the journey to the outer boundary of a residence because activities within the residence are essentially private and notoriously difficult to determine.
70. I also note the comments of Fitzgerald J in Re Commonwealth v Duncan (1982) 44 ALR 249, when he said:
“… I do not think that it would be fair to the employee to hold that there was no error of law by the Tribunal in arriving at its factual finding that the journey on which he was injured did not commence until he left the base. If, as it seems, the Tribunal considered that the journey must have commenced only when the employee left the base because that was the place of employment, it erred.”
71. After considering all of the evidence I find that the applicant was indeed travelling from his place of work to his place of residence at the time of the accident, despite the fact that he had not then reached the boundary of the HMAS Stirling base.
72. The respondent contends that although the applicant was on a journey to his place of residence he is disentitled to compensation because (1) the journey was interrupted in a way that substantially increased the risk of injury (see s6(2); and (2) because the applicant voluntarily and unreasonably submitted to an abnormal risk of injury (see s6(3)).
73. I find that neither of those two disentitling provisions apply here. There was in fact no interruption to the journey. The applicant, as has been said, was involved in work related activities right up to the point in time when he mounted his motorcycle to commence his journey home. That is when the journey commenced. He proceeded on that journey by the most direct route without any interruption until he had the accident and was injured.
74. As far as s6(3) is concerned, I am of the view that this sub-section does not apply to a journey claim. I have set out the wording of s6(3) in paragraph 11 above. Section 6(3)(a) includes the words “while at a place …” and s6(3)(b) is limited to “during an ordinary recess…”. The injury must therefore be sustained “at a place referred to in that subsection” or “during an ordinary recess in his or her employment.” The word “place” is used a number of times in sub-section (1) for example, “place of work”, “place of education”, “place of residence” etc. It seems to me that the legislature has dealt with journey claims in s6(2) and to places and ordinary recesses in s6(3). In my opinion neither parts of sub-section (3) apply in this application as the Tribunal is here dealing with a journey claim. The applicant was not injured at a “place” or in an “ordinary recess” but during a journey between his place of work and place of residence. A similar view was expressed by Senior Member M D Allen in Moore and Comcare AAT No. 11427 of 1996.
75. Another provision of the Act of relevance in this matter is s14(3). Under that provision compensation is not payable to an employee who is injured as a result of that employee’s “serious and wilful misconduct.” Unlike s6(2) and s6(3) it has broad application to any situation where an employee may otherwise be entitled to compensation including journey claims. Section 4(13), which also has broad application, deems that an employee who is under the influence of alcohol “…. shall be taken to be guilty of serious and wilful misconduct.” In the present case the applicant has been found to have been under the influence of alcohol and it has also been determined that it was that condition which actually caused the injuries suffered by the applicant.
76. Section 14(3) of the Act is clearly aimed at addressing precisely the circumstances of this claim for compensation. The fundamental issue and cause of the injuries was the consumption of alcohol and the applicant riding his motorcycle under its influence. However the act expressly and generously provides that this broad disentitling provision in s14(3) does not apply if the applicant suffered an injury which “…results in death, or serious and permanent impairment.” There is no doubt that this applicant has suffered a serious and permanent impairment as a result of the injuries suffered in the accident. This fact was not in dispute at the hearing and has already pointed out it was readily conceded on behalf of the respondent. The applicant did suffer serious brain damage and is seriously and permanently impaired. (See Re Grime and Telstra Corporation Limited (1994) 20 AAR 43)
77. I indicate that I do not draw any adverse inferences from the decisions made in the course of the hearing not to call either the applicant or PO Davies. It seems reasonable for the Tribunal to infer from the evidence and the submissions that the applicant was not called because of the serious nature of his injuries which has affected his recollection of the events and makes any account of those events unreliable. That was the explanation proffered by the applicant’s counsel on the very first day of the hearing. There was, of course, substantial other evidence about the function itself and the circumstances surrounding the accident
78. As far as PO Davies is concerned, the respondent’s counsel contended in his written submission that he offered to make PO Davies available for cross-examination and the applicant’s counsel said he was not required to give evidence. This important point was not expressly contradicted in the applicant’s subsequent written submission. Again, there is a good deal of evidence before the Tribunal about the function and the circumstances of the accident and also the Tribunal has the advantage of having before it PO Davies’ proof of evidence. (R6).
79. I do not see these particular matters as readily attracting the rule in Jones v Dunkel, bearing in mind, of course, that the question as to when it is appropriate to apply this rule has to be considered in light of the reality that proceedings of the Administrative Appeals Tribunal are essentially inquisitorial in nature, and in special circumstances the Tribunal itself can summons a witness to attend before it to give evidence. See Jones v Dunkel (1959) 101 CLR 298 and Re Bessey v Australian Post Corporation (2000) 60 ALD 529 at 537.
Conclusion
80. I find that the applicant was on a journey between his place of work and his place of residence at the time of the accident on 26 February 1999. He was then riding his motorcycle under the influence of alcohol and this caused him to have the accident and suffer his serious injuries. The applicant is therefore guilty of serious and wilful misconduct. However as he has suffered serious and permanent impairment the applicant remains entitled to receive compensation in accordance with the provisions of the Act.
Decision
81. The decision under review is set aside and the matter remitted to the respondent with the following direction.
(a)The respondent is liable to pay compensation to the applicant in accordance within the provisions of the Act in respect to the injuries he suffered in the accident which occurred at HMAS Stirling in Western Australia on 26 February 1999.
(b)The amount of compensation payable to the applicant is to be assessed.
Costs
82. This decision is one to which s67(9) of the Act applies. Therefore it appears that the applicant is entitled to costs. I will however hear counsel further as to costs if an application is made within 14 days. If no application is made within that time I will order that the respondent pays the applicant’s costs of these proceedings as agreed or taxed and that order will be incorporated in this decision.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 7 and 8 February 2005
Date of Decision 13 May 2005
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent Mr T Howe
Solicitor for the Respondent Australian Government Solicitor
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