Crook and Comcare - [2001] AATA 352

DECISION AND REASONS FOR DECISION [2001] AATA 352

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/19

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ANTHONY PHILLIP CROOK
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Major-General JN Stein, AO (Rtd)

Date1 May 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  (Sgd) K L Beddoe
  Senior Member

Decision No: 352/2001

CATCHWORDS
Compensation – employee – Army Reserve member – social function –whether frolic or employment

Safety Rehabilitation and Compensation Act 1988 s 14(1)
Defence Act 1903 s 45, 50
Comcare v Mather & Mitchell, (1995) 37 ALD 463
Goudie and ANA Commission (1984) 5 ALN 457
Brown v Commonwealth(1968) 13 FLR 68
Hazimanalis v ANI Corporation(1992) 106 ALR 611
Gregory v Comcare (1997) (unreported)

REASONS FOR DECISION

1 May 2001 Mr K L Beddoe (Senior Member) Major-General JN Stein, AO (Rtd)

By an application dated 16 September 1999 the applicant claimed compensation for listed conditions said to be caused by an assault said to have occurred just after midnight on 8 December 1996. By letter dated 25 October 1999 a delegate of the respondent notified that the Department of Defence was not liable to pay compensation for a "head/brain/memory" condition. That determination was subsequently affirmed on internal review and the applicant sought review in this Tribunal.
Section 14(1) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
Injury is relevantly defined in section 4(1) of the Act to mean:
"(a) a disease suffered by an employee; or
(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)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against an employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

Disease is relevantly defined in section 4(1) to mean:
"(a) An ailment suffered by an employee; or
(b) ……………..;
being an ailment that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;"

At the hearing Mr Gorman appeared for the applicant and Mr Clark appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and three other witnesses.
The parties agreed as to the following facts and we so find:
the Applicant attended a parade with A Company, 25 Royal Queensland Regiment ("the Unit") on 7 December 1996;
the Applicant was injured on 8 December 1996;
at all material times the Applicant was wearing the insignia of the unit by way of a yellow shirt;
there was evidence of the Applicant being in the area of the fight/brawl whilst it was continuing and before receiving his head injuries.
Captain Duff was at or near the entrance of the Park View Hotel on 7 December 1996 and 8 December 1996;
there had been drinks in the Mess at 25 RQR Warwick after completion of formalities on 7 December 1996.
Those basic facts were explained and put into context in the course of oral evidence. The unit which is part of 25 Royal Queensland Regiment ("25 RQR") conducted a parade at its depot in Warwick on 7 December 1996. That parade was the last for the calendar year and arrangements were made for a barbeque and drinks in the Mess after the parade. The Applicant had been a member of the Army Reserve posted to 25 RQR since August 1995 with the rank of Private. He was 26 years of age at time of enlistment in the Reserve.
We accept the evidence of Captain Duff as being the best evidence of what took place on the evening of 7 December 1996. Following parade the unit was stood down for the Christmas break and then proceeded to a barbeque function on the depot premises. That function involved eating and drinking including consumption of alcohol. Attendance at the barbeque was not compulsory but expected. Captain Duff said that some members of the unit did not attend the barbeque. We accept Major Robinson's evidence that upon being stood down the applicant had no further obligations to the Army until the January 1997 parade.
Following the barbeque the all ranks Mess bar was opened in the depot and further drinking took place in the Mess. Captain Duff became aware four soldiers, including the applicant, left the Mess to attend at the Trix Night Club which was located at the rear of the Park View Hotel, Warwick. We are unsure of the distance but it seems the 25 RQR depot and the Park View Hotel were reasonably proximate within the City of Warwick, ie within walking distance.
We are satisfied that the four soldiers left the Mess at a time around 10pm and walked to the Trix Nightclub. They were dressed in civilian clothing but it was distinctive in that they were wearing yellow sports shirts. The yellow shirts included on the front the company name and colour patch and on the back the words "Spearhead of the Battalion" and a large illustration of a Zulu warrior (Exhibit E). We find that the shirts are distinctive and would be likely to be recognised as relating to A Company 25 Royal Queensland Regiment.
We are satisfied that the applicant and the three reservists with him went into the nightclub and participated in the activities of the nightclub.
We are also satisfied that Captain Duff and two other members of A Company attended at the nightclub (or the hotel) but Captain Duff at least was refused entry because he did not comply with dress rules (he was wearing thongs). That apparently caused the applicant and the others to go out of the nightclub into the hotel foyer area or out into the street.
A confrontation apparently erupted between the reservists and members of the Cowboys Football Club. We are unable to say what caused this confrontation but street fighting ensued. The police were called, the applicant was injured, probably before the Police arrived and he was removed to hospital by ambulance.
On instructions from Captain Duff the rest of the reservists returned to the company Depot. It seems that there was an arrangement whereby some of the reservists, who lived in towns other than Warwick, had a practice of sleeping overnight in the Depot before travelling home the next day. The applicant, who resided in Warwick, was not one of these reservists who sometimes stayed overnight at the Depot.
We are satisfied that the applicant and other reservists were wearing civilian clothes including the distinctive yellow shirts when they walked to the hotel/nightclub. We are also satisfied that Captain Duff was wearing civilian clothes including shorts and thongs, but the two reservists who accompanied him were wearing military trousers.
We accept that there is a certain spirit engendered in units such as A Company 25 RQR whereby a sense of team spirit will manifest itself if a member is in difficulty. In particular we accept that it was a normal reaction for the applicant to go to the assistance of other members of A Company who may have got involved in a fracas. We do not suggest that the applicant was an instigator but we are satisfied that the applicant sought to assist other members and thereby made himself a target for the subsequent serious assault.
The Medical Evidence
There is an extensive amount of medical records before the Tribunal but no real dispute as to the applicant's medical condition. The condition arose, we accept, out of the confrontation in December 1996 but manifested itself again while the applicant was on manoeuvres in May 1997, when a right subdural haematoma was evident and had to be evacuated.
The diagnosis at Royal Brisbane Hospital following admission on 8 December 1996 is summarised in a report by a Neurosurgeon (Dr Coyne) in a letter to the applicant's admitting doctor dated 9 January 1997 (T5/44). The diagnosis was acute right sided subdural haematoma. There was also some confusion and dysarthria. The incident in the early hours of 8 December 1996 resulted in the applicant being in a coma for over one week and being hospitalised for approximately six weeks.
Document T14 is a report dated 22 August 1997 by Dr Barrie Morley, Consultant Neurologist, and addressed to the applicant's solicitors. We do not accept that the history as recorded by Dr Morley is accurate. Dr Morley found brain damage to the right side of the brain, particularly in the temporal region, as well as both frontal regions.
Dr Morley made a further report dated 2 October 2000. Dr Morley reported that the applicant had suffered one further epileptic seizure but this was attributed to overlooking his medication. Headaches were said to be less severe and other incapacities continued to be symptomatic but with some improvements. Dr Morley opined that the applicant's condition had stabilised.
The Applicant's Submissions
There was an expectation that the applicant would participate in the barbeque and Mess functions as a member of the Reserve Force. It was part of the esprit de corps of A Company that compelled him to go to the assistance of other Members. There is nothing to suggest the applicant was an instigator of the fracas.
The Respondent's Submissions
The evidence does not establish that the applicant went outside the hotel to assist the other members. In any event sections 45 and 50 of the Defence Act 1903 make it clear that there was no service obligation after being stood down at 5.30pm. The applicant was a reservist drinking with three fellow reservists on a frolic of their own. By going to the assistance of the other Members, the applicant voluntarily and unreasonably submitted to abnormal risk of injury. This is not a Comcare v Mather & Mitchell, (1995) 37 ALD 463, type of case. There the soldiers were injured during an interval within an overall period of work. The Tribunal should follow its decision in Re Goudie and ANA Commission (1984) 5 ALN 457.
Consideration
In Brown v Commonwealth(1968) 13 FLR 68 Judge Broad decided that the plaintiffs participation, and injury arising from that participation, in activities in an Army Mess arose out of employment by the Commonwealth. In that case the Court found that attendance at the Mess function was obligatory although not so because of a command to attend. Non attendance would not be a breach of military discipline but could result in informal counselling and discipline. In the result Broad DCJ found that the injury suffered in the course of a Mess game arose out of employment by the Commonwealth.
However that case is clearly distinguishable from the present case. It is not the case that there was any expectation that the applicant and other reservists attend at a hotel/nightclub in Warwick. They chose to do so after they had been stood down and after they left an informal Mess function. They were on a frolic of their own not in any way countenanced by the relevant officers. The fact that they were wearing the yellow shirts identifying them as Members of A Company means nothing in the context. If they had been wearing Collingwood Football Club jerseys the effect would have been the same. It was their frolic with no connection to their employment as reserve soldiers and we so find.
We have considered the fact of Captain Duff ordering the other Members (not the applicant) back to the Depot after the fracas. We doubt that anything turns on that. We have not been told much about the Police attendance at the scene but clearly it was the Queensland Police who were in the position to require persons to move on, not Captain Duff. The Members of A Company were subject to civil authority in the immediate circumstances of the street incident, not military discipline.
We are satisfied that the applicant did not suffer an injury as defined on 8 December 1996 and we will affirm the decision under review. In coming to that view we have taken into account the decision in Hazimanalis v ANI Corporation(1992) 106 ALR 611 and the discussion by Cooper J in Gregory v Comcare (1997) (unreported) relating to the High Court decision. We are satisfied this is not a case involving an interval between two periods of employment. Whether a different answer would be required in another case involving a member living away from Warwick is not something we have to decide.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member) and Major-General JN Stein, AO (Rtd)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  27-28 November 2000
Date of Decision  1 May 2001
For the Applicant  Mr Gorman
For the Respondent                 Mr Clark