Dalgrin and Military Rehabilitation and Compensation Commission (Compensation)
[2022] AATA 3935
•18 November 2022
Dalgrin and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 3935 (18 November 2022)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2018/3361; 2018/3498
Re:Ricky Terence Dalgrin
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal:Senior Member Dr Linda Kirk
Date:18 November 2022
Place:Sydney
The Reviewable Decisions are affirmed.
...............................[SGD].........................................
Senior Member Dr Linda Kirk
Catchwords
COMPENSATION - Defence-related claims - whether the Applicant suffered an injury or disease - claim for right ulna fracture - claim for left clavicle fracture - whether the Applicant's injuries arise out of or in the course of his employment - whether employer induced the Applicant to participate in activity - reviewable decision approved.
Legislation
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1998 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Cases
Comcare v PVYW (2013) 250 CLR 246
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473Military Rehabilitation and Compensation Commission v Dalgrin [2022] FCA 83
REASONS FOR DECISION
Senior Member Dr Linda Kirk
18 November 2022
iNTRODUCTION
Ricky Terence Dalgrin (‘the Applicant’) was born in 1964. He first enlisted in the Australian Army in April 1981. He was assigned to the Royal Australian Army Medical Corps and variously served in the Permanent Forces and the Reserves. He was discharged in November 1998 and re-entered the Army in February 2009.
The Applicant was posted to several units in the 1980s and 1990s including the 7th Field Ambulance, the Special Air Service Regiment (‘SASR’), 16th Battalion Royal Western Australian Regiment and the Pilbara Regiment. He was awarded a Soldier’s Medallion for Exemplary Service in March 1995 and was substantively promoted to Sergeant in June 1995.
In March 1990, while participating in a triathlon, the Applicant was involved in a road pushbike accident and sustained injuries, being a left clavicle fracture and right ulna fracture (‘the injuries’). At the time, the Applicant was serving in the Reserves.
On 27 June 2016 and 24 February 2017, the Applicant made claims for compensation in respect of the injuries under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1998 (Cth) (‘DRCA’), asserting that the injuries were sustained in the course of his employment with the Department of Defence (‘Defence’).[1]
[1] T16.
On 6 June 2017, the Military, Rehabilitation and Compensation Commission (‘the Respondent’) denied liability for both claims. In a letter dated 14 June 2017, the Applicant requested a reconsideration of the determinations.[2]
[2] T28.
On 28 August 2017, the Respondent affirmed the determinations (‘the Reviewable Decisions’).[3] The claims were denied on the basis that the Respondent found no evidence to establish that the Applicant was acting in the course of his Defence service at the time he sustained the injuries.
[3] T1, 22, 27.
In a decision dated 24 July 2018, the Administrative Appeals Tribunal (‘the Tribunal’) granted the Applicant an extension of time to file an application for review of the Reviewable Decisions until 19 June 2018.[4]
[4] T4.
On 19 October 2020, the first Tribunal set aside the Reviewable Decisions and substituted a decision that the injuries arose out of, or in the course of, the Applicant’s Defence service.[5]
[5] Bundle of Documents, 332-342.
On 10 February 2022, the Federal Court remitted the matter to the Tribunal.
The Review Applications were heard by the Tribunal at a hearing on 2 June 2022. The Applicant appeared in person at the hearing and was self-represented.
The following witnesses gave oral evidence and were cross-examined at the hearing:
·the Applicant;
·Denis Marr
The following documents were before the Tribunal:
·Defence Policy on Sport lodged on 6 December 2019 – Exhibit A1
·Army Office Physical Fitness Instructions dated 6 September 1983 – Exhibit A2
·Document signed by Andrew Stachewicz dated 17 January 2019 – Exhibit A3
·Applicant’s Statement of Intention – Exhibit A4
·Medical attendance and treatment report for the Applicant – Exhibit A5
·Email dated 7 September 2016 from the Applicant to Ms Belinda Lucas – Exhibit A6
·Applicant’s CV – Exhibit A7
·Media story dated 18 September 2020 Indigenous soldier thanked for lifetime of service – Exhibit A8
·Veteran’s specific conditions details – Exhibit A9
·Record of Service Report as at 30 June 2002 – Exhibit R1
·CMR – Re-enlistment Review dated 10 July 1989 – Exhibit R2
·Extract record of the Fremantle Hospital Notes 25 March 1990 – Exhibit R3
·Extract record of the Fremantle Hospital Notes dated 26 March 1990 – Exhibit R4
·Application for leave – Army Reserve dated 20 March 1990 for the period 27 March 1990 – 8 May 1990 – Exhibit R5
·Undertaking by Member of Army Reserve to render continuous full-time service – Exhibit R6
·Department of Defence message form dated 1 August 1990 – Exhibit R7
·The Special Air Service Regiment Campbell Barracks, Swanbourne Western Australia letter dated 16 October 1990 – Exhibit R8
·Section 37 Documents filed 29 August 2018 – Exhibit R9
·Transcript of the original Tribunal proceedings on Wednesday 4 March 2020 – Exhibit R10
·The ‘Bundle of Documents’ filed by the Respondent comprising all the materials filed in this matter by all parties – ‘Bundle of Documents’
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATIVE FRAMEWORK
The liability of the Commonwealth to pay compensation is provided for in s 14(1) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (‘DRCA’). It relevantly provides:
(1)Subject to this Part, the Commonwealth is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Paragraph 5A(1)(b) relevantly defines the word “injury” to mean:
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; …
Section 6 of the DRCA contains a non-exhaustive list of circumstances in which an injury to an employee shall be treated as having arisen out of, or in the course of, an employee’s employment. They include injuries sustained while the employee was “temporarily absent from that place of work during an ordinary recess in that employment” and injuries sustained “while the employee was temporarily absent from the employee’s place of work undertaking an activity associated with the employee’s employment or at the direction or request of the Commonwealth”: DRCA, s 6(1)(b) and (c) respectively.
Subsection 5(1) of the DRCA defines the word “employee” to mean “a member of the Defence Force”. Subection 5(2) provides:
(2)For the purposes of this Act, a person who is a member of the Defence Force is taken to be employed by the Commonwealth, and the person’s employment is taken to be constituted by the person’s performance of duties as such a member of the Defence Force.
“Defence Force” has the meaning given in s 5 of the Military Rehabilitation and Compensation Act 2004 (Cth), being:
(a) the Permanent Forces; and
(b) the Reserves.
ISSUES
There are two questions for determination by the Tribunal:
1)Did the Applicant suffer an ‘injury’ or ‘disease’ as defined in s 5A of the DRCA?
2)Did the Applicant’s injuries arise out of, or in the course of, his Defence service within the meaning of ss 5A and 14 of the DRCA?[6]
EVIDENCE BEFORE THE TRIBUNAL
[6] Respondent’s Statement of Issues, Facts and Contentions [2.1].
Applicant’s Army service
The Applicant was born in March 1964 and first enlisted in the Permanent Forces of the Australian Army in April 1981.[7] He was discharged from the Army in January 1986. He subsequently applied for re-enlistment in July 1989.[8] At this time, the Applicant was working full-time for Westrail as a guard and was doing shift work.[9] His application was successful, and he re-enlisted in the Reserves in February 1990. He was posted to the 7th Field Ambulance and employed as a Corporal Medical Assistant.[10]
[7] Exhibit R1, 346; Transcript, 7.
[8] Exhibit R2, 378; Transcript, 7.
[9] Transcript, 9.
[10] Exhibit R1; Transcript, 9.
During the period February to March 1990, the Applicant served as a Reservist once or twice a week, for a half day or full day.[11] At the time, there was a shortage of medics, and his skills were in demand. He would attend parade every Tuesday night and on the weekends.[12] On Tuesday nights he would be paid for half a day (three hours).[13] The work arrangement was flexible, in that he would be called to see if he was available to perform work on a particular day, and he would agree to work if he was available to do so.
[11] Transcript, 10.
[12] Transcript, 10. Parade is attendance and completion of a roll book and the assignment of duties.
[13] Transcript, 11.
The Applicant’s duties as a Reservist were to assist at the SAS Regimental Aide Post. He was sought after because he was skilled at applying hexalite plasters to fractures so soldiers could continue their training.[14]
[14] Transcript, 9.
March 1990 bike accident
On 25 March 1990, the Applicant sustained injuries when he fell from his pushbike while participating in a competitive triathlon. The triathlon was organised by the Triathlon Association of Western Australia.[15] He was registered for the triathlon by friends, one of whom was in the Australian cycling team, and who had no association with the Defence force.[16]
[15] Transcript, 13.
[16] Transcript, 15.
The triathlon commenced at Leighton Beach and concluded at Cottesloe Beach.[17] It consisted of three stages: a swim of one kilometre; a ride of 40 kilometres; and a run of 10 kilometres.[18] The Applicant was injured when he fell from his bike just before he was about to complete the riding stage of the triathlon.[19]
[17] Transcript, 14.
[18] Transcript, 14-15.
[19] Transcript, 15.
The Applicant told the Tribunal that at the time he was training regularly and would do pack walks with 40 kilograms, and his own ‘private’ triathlons three to four days a week. These were of the same distance as the competitive triathlon, but he would stop and have a coffee and relax for half an hour between stages.[20]
[20] Transcript, 16.
The Applicant was asked whether he was on duty with the Reserves when he performed the competitive triathlon and he confirmed that he was not. He also confirmed that he had not received any formal approval from anyone in Defence to engage in the triathlon.[21]
[21] Ibid.
In his oral evidence, the Applicant explained how the accident occurred. There was a slight rut in the road at a set of lights which was police controlled. He hit the rut and was thrown from his bike.[22] He was taken to hospital by ambulance and x-rays were performed.[23]
[22] Transcript, 32.
[23] Ibid.
Injuries sustained
Clinical notes from Fremantle Hospital dated 25 March 1990 record:[24]
26 year old male. Competing in triathlon today. During cycling leg, hit pothole and fell from bike at 45 kilometres an hour. No loss of consciousness. Complained of painful left shoulder, right shoulder, right wrist, right hip.
[24] Exhibit R3.
A radiological report from Fremantle Hospital dated 28 March 1990 states:[25]
LEFT CLAVICLE 25.3.90 Series 2
There is a slightly comminute fracture of the shaft of the clavicle at the junction of the middle and lateral thirds with downward displacement of the lateral fragment. At least two smaller intermediate fragments are present one of which is lying obliquely.
RIGHT ELBOW 25.3.90 Series 3
There is a fracture of the head and neck of the radius, involving the articular surface of the head. There is only minor displacement of the fragments. An effusion which is likely to be a hemarthrosis is present in the elbow joint.
[25] Exhibit R4, Bundle of Documents, 687.
A later radiological report from Fremantle Hospital dated 19 April 1990 relevantly recorded:
LEFT CLAVICLE Series 5 18.4.90
Comminuted midshaft fracture position does not show any obvious change compared with 25 March. No callus can yet be seen.
RIGHT ELBOW
Fracture of the radial heads does not show any significant displacement and joint effusion seems to have been resolved.
Leave application
Following the accident, the Applicant submitted a leave application dated 4 April 1990 to take leave from the Reserves between 27 March and 8 May 1990.[26] The application was signed by the RSM because the Applicant was unable to sign due to his injuries.[27]
[26] Exhibit R5.
[27] Transcript, 32.
Compensation claim
On 27 June 2016, the Applicant completed a report of the injuries and the circumstances in which they occurred. He described the circumstances of the injuries as “head first at 50km per hour into the road push bike accident – whilst training for SAS”.[28]
[28] T10.
On 24 February 2017, the Applicant completed a claim for compensation in respect of the injuries.[29] The claim form asked what task was being performed when he sustained the injuries. He responded, “Training for SASR selection course 40km bike ride, 1km swim & 10km run.” The claim form asked what aspects of his employment he thought contributed to his disease or illness. He responded, “It’s a requirement of the SASR Selection Course to be A plus level of fitness.”[30]
[29] T21. The reasons for the delay in making the claim for compensation are not relevant to this review.
[30] T21.
On 6 June 2017, the Respondent denied the claim on the basis that the Applicant had not suffered an “injury” as defined in s 5A of the DRCA, because the injuries had not arisen out of or in the course of his employment.
SASR Selection Course
In early 1990, the Applicant had aspirations to be selected for employment in the Permanent Forces as a soldier in the SASR. Recruitment to the SASR was a multi-stage process. Applicants first needed to be nominated for a Selection Board interview, and then be accepted to participate in the Special Air Service Regiment Selection Course (‘SASR Selection Course’).
In his oral evidence at the hearing, the Applicant explained that it is very competitive to be accepted into the SASR. Approximately 120 people undertake the SASR Selection Course and only 23 are accepted into the SASR.[31]
[31] Transcript, 31, 33.
The Applicant told the Tribunal that in order to improve his chances for SASR selection he undertook a rigorous training regime, which included doing a triathlon three days a week and pack runs twice a week.[32] During cross-examination, the Applicant was asked whether he undertook the competitive triathlon in March 1990 for the sole reason of increasing his fitness to improve his chances for SASR selection. He stated:[33]
I think I was doing it for - as a part of SAS selection but it was also a part of - if I was going to be in full-time service in the SASR Op, I would have to attend their fitness training and I'd have to have that up to a level. So, I would not like to have embarrassed myself by not being at an A Plus 20 level of fitness before attending any - you know, well, I was working there part-time but I was offered full-time, so, you know, you're under a lot of - you know, a lot of people keeping an eye on you and that's how you do it.
[32] Transcript, 19.
[33] Transcript, 20.
The Applicant confirmed that at the time he competed in the triathlon he had not been chosen for the SASR Selection Course.[34]
[34] Transcript, 21.
The Applicant told the Tribunal that he did 12 months ‘build up training’ to prepare for the SASR Selection Course. Despite having a broken arm, he continued to ride his bike on rollers and swam without using his arms and legs. He also kept up his cardio and ‘managed to achieve what [he] needed to achieve.’[35]
[35] Transcript, 31.
On 1 August 1990, the Applicant was nominated for a Selection Board interview.[36] He underwent psychological testing on 6 August 1990, and he participated in the interview on 9 August 1990.[37]
[36] Exhibit R7.
[37] Transcript, 21.
In a letter dated 16 October 1990 (‘the Letter of Instruction’), the Applicant was notified that he had been selected to undertake the SASR Selection Course in 1991. It stated:[38]
1.I am writing to confirm your selection to attend The Special Air Service Regiment Selection Course in 1991 and to supply you with some necessary pre-course administration details. This information is contained in the enclosed Joining Instruction.
…
3.Let me emphasize the need for you to prepare yourself adequately for the Course, mentally as well as physically. I suggest that you follow the physical programme that was supplied during the Selection Board interview, because it is known to work - and work well. Revision of all your basic military skills is also worthwhile.
4.Good luck with your preparations and we look forward to seeing you on the Selection Course in 1991.
[38] Exhibit R8.
In order for him to undertake the SASR Selection Course, the Applicant was required to be engaged in continuous full-time military service as a member of the Permanent Forces for a period of two months.[39] The Applicant agreed in writing to undertake continuous full-time service commencing on 5 February 1991.[40] The document was signed and dated 23 January 1990 by the Applicant. His evidence is that he signed this document on 23 January 1990, not 23 January 1991, agreeing to commence full-time service in February 1991.
[39] Transcript, 22, 34.
[40] Exhibit R6.
The SASR Selection Course commenced on 5 February 1991 and was conducted over 18 days.[41]
[41] Transcript, 22.
On 15 February 1991 the Applicant suffered a knee injury.[42] He was withdrawn from the SASR Selection course in late February 1991. He continued full-time service in the Permanent Forces until 23 April 1991 when he returned back to the Reserves.[43]
[42] Transcript, 24.
[43] Transcript, 24-25.
Denis Marr
Mr Marr told the Tribunal that he has served in the Army as a full-time member and as a Reservist. He explained that whereas as a Reservist a soldier works only on a part-time basis, they are ‘24/7’ and ‘full time committed to the army.’[44]
[44] Transcript, 53.
Mr Marr confirmed that he completed the SASR Selection Course in 1992.[45]
SUBMISSIONS
[45] Ibid.
Applicant
The Applicant claims that that the Letter of Instruction impliedly encouraged the activity that caused the injuries. He contends that successful selection to and subsequent attendance at the SASR Selection Course was dependent upon preparation, and that the high threshold for participation in the SASR Selection Course, and possible recruitment into the SASR, meant that a triathlon was a suitable choice for preparatory physical activity.
Respondent
The Respondent’s liability under s 14 of the DRCA must be assessed in the context of the Applicant’s employment in 1990, not by reference to any alternate employment he desired to secure with the same employer at a later time. The Applicant was desiring to undertake the SASR Selection Course, and he was training specifically and solely for that purpose. The Applicant did not compete in the triathlon to meet any actual or perceived expectation that he maintain a level of fitness commensurate with his duties of his employment.[46] Rather, his engagement in the activity was explained by his desire to develop himself in the qualities that he correctly believed would make him an attractive candidate for selection as a soldier in the Permanent Forces as a member of the SASR.[47] The activity was not induced or encouraged, based on his employment. Therefore, it does not meet the test in Comcare v PVYW (‘PVYW’),[48] and liability does not attract. Therefore, the Reviewable Decisions ought to be affirmed.
CONSIDERATION AND REASONS
[46] Transcript, 58.
[47] Transcript, 59.
[48] (2013) 250 CLR 246.
1) Did the Applicant suffer an ‘injury’ or ‘disease’ as defined in s 5A of the DRCA?
The Respondent accepts that the Applicant sustained the injuries as a consequence of the fall from his bike in March 1990. On the basis of the clinical notes from Fremantle hospital referred to in [29] and [30] above, the Tribunal is satisfied that the Applicant suffered an ‘injury’ as defined in s 5A of the DRCA.
2) Did the Applicant’s injuries arise out of, or in the course of, his Defence service within the meaning of ss 5A and 14 of the DRCA?
In Military Rehabilitation and Compensation Commission v Dalgrin (‘Dalgrin’),[49] Charlesworth J detailed the legal principles relevant to determining whether the Commonwealth is liable to compensate the Applicant for his injuries. Her Honour observed that the Commonwealth’s liability turned on the application of the so-called “activity test” stated by the High Court in Hatzimanolis v ANI Corporation Ltd (‘Hatzimanolis’)[50] and explained in PVYW.[51]
[49] [2022] FCA 83.
[50] (1992) 173 CLR 473.
[51] At [17]-[19]; [38]-[39].
In their joint judgment in Hatzimanolis, Mason CJ, Deane, Dawson and McHugh JJ reviewed the authorities to identify an organising principle to determine what might be encompassed by the phrase “arising … in the course of employment” particularly in cases where injury occurs during an interval or interlude between periods of actual work. Their Honours stated:[52]
… 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. … 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. …
[52] at 484.
In PVYW, French CJ, Hayne, Crennan and Kiefel JJ, emphasised the need to identify how the injury was brought about. Their Honours stated:
Because the employer’s inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer’s liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.[53]
…
The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.[54]
[53] At [35].
[54] At [38].
As to temporal considerations, the majority in Hatzimanolis stated:[55]
an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work.
[55] at 483.
Their Honours emphasised that 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”.[56]
[56] at 484 citing Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529, at 536.
In PVYW, the majority stated:[57]
It is important to identify how Hatzimanolis sought to define the circumstances for, and the extent of, an employer’s liability for compensation. Hatzimanolis sought to provide a legal justification for an injury, which occurred between periods of actual work, being regarded as occurring in the course of the employee’s employment. It did so by characterising the interval by reference to the employer’s inducement or encouragement. The employer’s liability in such circumstances depends upon what the employer induced or encouraged the employee to do. Hatzimanolis did not seek to extend the employer’s liability beyond that.
(footnote omitted)
[57] At [34].
Respectfully adopting this approach, the Tribunal has considered the following:
a)Did the Applicant suffer an injury whilst he was not engaged in actual work?
b)What were the general nature, terms and circumstances of the Applicant’s employment at the time the injuries were sustained?
c)What activity was the Applicant engaged in when he was injured?
d)Did Defence induce or encourage this activity?
a) Did the Applicant suffer an injury whilst he was not engaged in actual work?
It is not in dispute that the Applicant suffered the injuries at a time when he was not on duty or engaged in actual work as a Reservist. It is also accepted that the injuries were not suffered during a short interval in daily work such as a lunch break, or in an interval between daily periods of work whilst stationed at a remote location. Charlesworth J in Dalgrin assumed (without finding) that the Applicant’s injuries occurred on a day falling between two discrete periods of work undertaken by the Applicant in his capacity as a Reservist.[58] The evidence before the Tribunal confirms that this is the case. The Applicant’s oral evidence at the hearing was that his working hours at this time were flexible, and that he generally would attend parade on Tuesday evenings and work a full day on weekends. As the Applicant’s injuries were sustained on a Sunday, they occurred on a day falling between two discrete periods of his work as a Reservist. As Charlesworth J observed in Dalgrin, in accordance with Hatzimanolis, this ‘temporal consideration renders it less likely that the injuries will be seen as occurring in the course of employment.’[59]
b) What were the general nature, terms and circumstances of the Applicant’s employment at the time the injuries were sustained?
[58] At [59].
[59] At [59].
It is common ground that at the time he sustained the injuries in March 1990, the Applicant was employed by Defence as a Reservist, not a member of the Permanent Forces. He was not a member of the SASR, nor had he been selected to participate in the SASR Selection Course, nor had he been nominated to participate in the Selection Board interview with a view to being chosen to undertake the SASR Selection Course. The Applicant’s aspirations in March 1990 to gain employment within the Permanent Forces as a member of the SASR do not change the nature of the terms and circumstances of his employment as a Reservist at this time. As Her Honour observed in Dalgrin, the Commonwealth’s liability under s 14 of the DRCA must be assessed in the context of the Applicant’s employment in March 1990, ‘not by reference to any alternate employment he desired to secure with the same employer at a later time.’[60]
[60] At [62].
c) What activity was the Applicant engaged in when he was injured?
The Applicant’s injuries were occasioned by him coming off his pushbike during a competitive triathlon at a speed of travel he estimated to be 50km per hour. Whilst his claim form stated that the injuries occurred whilst “training for SASR selection course”, there is no dispute that on the date of the accident the Applicant had not been selected to participate in the SASR Selection Course, nor had he been invited to attend a SASR Selection interview. The “training” the Applicant was undertaking was not training provided by his employer. As Her Honour observed in Dalgrin in relation to the evidence before the first Tribunal, ‘[o]n any view of the evidence, it was physical activity undertaken by [the Applicant] to improve his fitness in order to increase his chances of selection into the SASR [Selection] Course.’[61] There is no evidence before this Tribunal that provides a basis for a different conclusion. Accordingly, the Tribunal finds that the triathlon the Applicant was undertaking when he sustained the injuries was to improve his fitness levels and thereby increase his chances of being accepted into the SASR Selection course.
[61] At [63].
d) Did Defence induce or encourage this activity?
In Dalgrin, Charlesworth J referred to the authorities which require that an employer induced or encouraged the activity that caused the injuries:[62]
In the “activity” cases discussed in Hatzimanolis and PVYW, it was the employer’s conduct of inducing or encouraging the employee to engage in an activity during the relevant interval or interlude that permitted a finding that the injury occurred at a time that may be regarded as falling within the statutory expression. The test of inducement and encouragement is concerned with actual conduct of the employer having an actual effect on the employee, thus giving rise to a sufficient connection between the employment and the activity that occasions the injury. It is the connection between the employer’s conduct and the activity that provides a principled basis for the imposition of liability within the confines of the statute.
[62] At [78].
The Letter of Instruction was directed to Defence members, including the Applicant, who had been selected in October 1990 to participate in the SASR Selection Course due to commence in February 1991. Accordingly, it post-dated the injuries the Applicant sustained in March 1990 and therefore it was not a temporal inducement for him to undertake rigorous physical training such as a triathlon. However, as Charlesworth J observed in Dalgrin, ‘[i]t nonetheless supported [the Applicant’s] subjective understanding in March 1990 that rigorous physical training would be required in order to successfully complete the SASR [Selection] Course, should he be selected to participate in it.’[63]
[63] At [65].
The Applicant’s evidence is that he undertook rigorous physical training which included the triathlon in March 1990 in preparation for the SASR Selection process and his return to full-time service in the Permanent Forces. He recognised that as a member of the Permanent Forces he would have to attend its fitness training and he would ‘have to have that up to a level.’ He would not have liked ‘to have embarrassed [him]self by not being at an A Plus 20 level of fitness before attending’. In relation to whether he was encouraged to undertake rigorous physical training, he told the Tribunal:[64]
Was I encouraged? Everything in the army encourages you to be the best. The [SASR] is the best, right?
…
Because you have to reach a standard. And if you don't reach that standard, the statement is more practice in your own time and go on. So that's encouragement from the army.
[64] Transcript, 31.
The Tribunal does not accept that the Applicant was induced or encouraged by his employer to undertake rigorous physical training including a triathlon in March 1990. There is no evidence that at the time of the injuries the Applicant was preparing to perform any task referrable to or incidental to his employment as a Reservist. Whereas the evidence supports a finding that there was an expectation that soldiers maintain a level of fitness commensurate with their duties,[65] this does not equate to inducement or encouragement to soldiers to engage in any particular training or activity. As Charlesworth J explained in Dalgrin:[66]
Even if the attribution of that general expectation to the employer was available on the evidence, of itself it is not sufficient to demonstrate that [the Applicant] was thereby encouraged or induced by the employer to participate in the activity that occasioned his injuries. An employer’s expectation that an employee possess desirable personal characteristics cannot, without more, constitute inducement or encouragement to undertake activities outside of working hours to develop or demonstrate those characteristics. It does not constitute inducement or encouragement to undertake any activity of the employee’s choosing so as to bring the engagement in the activity within the course of employment in a temporal sense or in any other sense.
[65] Exhibit A2.
[66] At [71].
The evidence that there was an expectation that Reservists maintain a level of fitness commensurate with their work duties does not support a finding that there was inducement or encouragement by the employer, directed towards Reservists, to maintain a state of extreme physical fitness sufficient to meet the demands of the SASR Selection Course.
The requirement for an association between the activity which resulted in the injury and the employee’s employment was outlined by Charlesworth J in Dalgrin:[67]
The activity test in Hatzimanolis and PVYW is not concerned with ideals or expectations expressed in the abstract. It is formulated to ensure that there is an association between the particular activity bringing about the injury and the particular employment sufficient to warrant the imposition of liability on the employer for the injury. In cases in which the activity test applies, the relevant association is found in the employer’s conduct of inducing or encouraging the relevant activity. Where the inducement or encouragement is said to have been given impliedly, it becomes all the more important to examine the underlying facts from which the implication might reasonably be drawn. In such cases the nature and scope of the employment must be considered. In the present case, the scope of [the Applicant’s] employment as a Reservist and the inducement and encouragement directed to him in that capacity is critical to the outcome.
(emphasis in original)
[67] At [72].
The evidence does not support a finding that the Applicant’s employer either expressly or impliedly induced him to participate in competitive triathlons or like activities, at least at any time prior to the issue of the Letter of Instruction in October 1990.
As Her Honour found in Dalgrin, the Applicant’s ‘evidence … that he anticipated what the expectations of him would be should he secure a different role with the same employer, does not amount to inducement or encouragement by the employer to engage in a competitive triathlon between periods of work in March 1990.’[68] The evidence before this Tribunal is not capable of demonstrating the necessary connection between the employer’s conduct and the activity which led to the Applicant’s injuries so as to satisfy the statutory condition that the injuries arose “in the course of employment”.
[68] At [80].
DECISION
The Reviewable Decisions are affirmed.
I certify that the preceding 68 (sixty - eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
................................[SGD]........................................
Associate
Dated: 18 November 2022
Date(s) of hearing: 2 June 2022 Applicant: In person Solicitors for the Respondent: Mr M LaVista, Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Causation
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Statutory Construction
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