Graham and Department of Veterans' Affairs - [2002] AATA 655

DECISION AND REASONS FOR DECISION [2002] AATA 655

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/132

GENERAL ADMINISTRATIVE DIVISION          )
           Re      STEPHEN JAMES GRAHAM
  Applicant
           And    DEPARTMENT OF VETERANS' AFFAIRS
  Respondent

DECISION

Tribunal Mr M J Sassella Senior Member

Date2 August 2002
PlaceCanberra

Decision      The tribunal sets aside the decision under review and decides that the respondent is liable under s 14(1) of the Act to pay compensation to the applicant in respect of injuries suffered by the applicant in New Zealand on 5 January 2000 if those injuries result in the applicant's death, incapacity for work or impairment. The applicant is entitled to costs associated with this application in accordance with the tribunal's General Practice Direction.
   ......M Sassella (sgd)...........
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – whether injury arose out of, or in the course of, employment – member of RAAF injured while engaged in mountaineering when on recreation leave – mountaineering intended to equip member to participate in officially approved expedition to Mt Everest – member eligible for compensation

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("ailment", employee", "injury", "place of work"), 5(1), (2)(b), 14(1), 72(a).

Gregory v Comcare (1997) 72 FCR 196
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
La Palombara and Commonwealth of Australia, Re (1984) 6 ALD 526
MacKenzie and Commonwealth of Australia, Re (1984) 7 ALD 325
Mulligan and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees, Re (1995) 36 ALD 699
Pearson and Royal Australian Navy, Re (1980) 1 CCD 310
Strang and Commonwealth of Australia, Re (1984) 5 ALN N424

REASONS FOR DECISION

2 August 2002 Mr M J Sassella Senior Member

HISTORY OF APPLICATION

On 27 March 2000 Squadron Leader Stephen James Graham ("the applicant") lodged with the Military Compensation and Rehabilitation Service ("the MCRS") within the Department of Veterans' Affairs ("the respondent") a claim for workers' compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") (T10). He explained that at midday on 5 January 2000 he had injured himself during a mountain climbing exercise in Mt Cook National Park in New Zealand. Accompanying the claim form was a full statement (T11) about the incident. The statement included the following:
1.        Over the period 20 Dec 99 – 9 Jan 00 I participated in Exercise Southern Ascent, organised by the Army Alpine Association (AAA). This is an annual Adventurous Training exercise conducted in the New Zealand Alps. The exercise involves small teams undertaking Alpine Mountaineering.
2.        On 5 Jan 00 I attempted to climb Mt Sefton with my climbing partner Anthony Timms. We aborted the climb due to poor conditions and returned to the Sefton Bivy (a refuge shelter). At midday we commenced down climbing in order to return to Mt Cook village. During this down climbing I suffered a fall of 40 m. The reason for the fall is unknown, as my partner was ahead of me at the time and did not see the fall. We were not roped together. Few climbers (if any) rope up to scramble up/down the section below Mt Sefton bivy. No known mall practices [sic] contributed to the accident. The fall may have been caused by a slip or a rock fall. I have subsequently suffered a memory loss from approximately 30 minutes before the fall, until 24 hours afterwards. My partner was able to call for assistance from the Mt Cook National Park authorities, via a radio in the bivy shelter. I was subsequently casevaced by helicopter to Timaru Hospital. I was unconscious at the time.
3.        Anthony Timms is a civilian and is currently on a round the world trip. Return date unknown.
4.        I suffered the following injuries:
a.        Severe whiplash injury to my neck resulting in 2 fractures at T1 and T2, and considerable bruising and strained ligaments to the local area.
b.        Chipped bone in left thumb.
c.        Chipped bone in left knee.
d.        Considerable bruising and cuts all over, resulting in many stitches.
e.        Heavy internal bruising to my chest.
f.        Left shoulder ligaments damaged.
g.        Allergic reaction to prescribed drugs.
...
6.        The question of whether I was, or was not, on "duty" for the purposes of MCRS, is vague. On the one hand [T5] indicates that personnel were not on duty. This is because [Headquarters Training] did not approve Exercise Southern Ascent as an overseas adventurous training activity. However, [Headquarters Training] did approve for the activity to proceed under the auspices of the AAA. Hence,... (a General Instruction) was raised and Exercise Southern Ascent proceeded. The AAA is an accredited ADF adventurous training association. My participation in Exercise Southern Ascent was approved by my [Commanding Officer].
7.        Service personnel are encouraged to participate in adventurous training. The benefits of adventurous training are extolled in [Defence Instructions]. In addition, I am on the committee of the AAA and hence, my associated activities are a secondary duty. This has been acknowledged on all of my annual Officer Evaluation Reports. I am currently endeavouring to participate in the ADF's 2001 expedition to attempt to climb Everest. This expedition has been endorsed by the Chief of Army. As part of the team selection process I have been encouraged to "continue furthering my mountaineering experience".
8.        Hence, there are pervasive [sic] arguments suggesting that my participation in Exercise Southern Ascent is consistent with the spirit of the requirements for eligibility for MCRS.
On 23 June 2000 a MCRS delegate determined that Squadron Leader Graham's claim was to be rejected (T16). The claim was said to be for "severe whiplash to neck, chipped bone in left thumb, chipped bone in left knee, bruising and cuts, internal bruising to chest, left shoulder ligament damage and allergic reaction to prescribed drugs". The delegate explained that an injury, to be compensable, must have arisen out of or in the course of military service. This was said to require that, at the time of the injury, the Squadron Leader had to be doing something that he was required, expected or authorised to do in order to carry out his duties. The Commonwealth was said not to be liable in the present case because (i) Squadron Leader Graham was on leave at the time of the injury, (ii) the Squadron Leader's Commanding Officer had released Squadron Leader Graham for Exercise Southern Ascent ("ESA") but ESA had not been approved as an adventurous training ("AT") exercise ("ATE") by the Headquarters Training Authority ("HTA"). On the other hand, Squadron Leader Graham's urticaria had been accepted as compensable because it resulted from medical treatment provided by the Commonwealth. However, liability for urticaria ceased on 21 January 2000 when, presumably, the condition cleared up.
On 27 July 2000 Squadron Leader Graham sought reconsideration of the adverse decision (T17). He gave a number of reasons why he thought the decision wrong:
(a)ESA was an annual exercise.
(b)HTA had approved the conduct of ESA in 1999-2000 under AAA auspices.
(c)AAA is an accredited and publicly funded Australian Defence Force ("ADF") AT organisation. Therefore the ESA for 1999-2000 was approved by an authorised ADF organisation.
(d)Squadron Leader Graham had been paid a financial subsidy by AAA for his participation in ESA in 1999.
(e)Squadron Leader Graham's Commanding Officer approved his participation in 1999's ESA.
(f)At the last minute Squadron Leader Graham had learned that HTA was not sponsoring the 1999-2000 ESA. He had submitted a leave pass in order to avoid being absent without leave ("AWOL").
(g)Squadron Leader Graham's Commanding Officer had supported the Squadron Leader's compensation claim.
(h)The ADF encourages members to participate in AT.
(i)Squadron Leader Graham's duties as an AAA executive committee member were secondary duties and recognised as such on his annual evaluations.
(j)ESA had a role as training for Squadron Leader Graham's bid to be selected for the ADF's Mount Everest climb in 2001. The Everest climb was ADF approved.
(k)The MCRS advice booklet posited a number of acceptable links between an injury and a defence person's service. The injury could be "linked to" service. It could be "as a consequence of" service. The injury could occur while on "authorised and promulgated activities outside normal working hours which provide fitness or skills benefit to" employment. Squadron Leader Graham said that his participation on ESA satisfied these descriptions.
(l)He summarised:
I was participating in activities directly related to and expected of me in the course of my ADF military service. Therefore, I was engaged in activities "reasonably incidental to that work, or doing something that you were required or authorised to do in order to carry out your duties." To interpret otherwise, just because I was on leave (the need for which is questionable), goes against both the spirit of the MCRS legislation and the weight of argument. Personnel whilst on leave, will engage in activities, such as sport and adventurous training, which is expected by the ADF. In this case my activity was organised by an ADF authorised organisation.

reviewable decision

On 9 February 2001 a delegate issued a reviewable decision affirming the decision to refuse compensation to the Squadron Leader (T20). The reviewable decision relied in large part on the fact that HTA had not approved ESA as an ATE in 1999-2000. The decision-maker said that ESA did not arise out of, or in the course of, employment, or out of, or in the course of, an activity reasonably incidental to employment, required or expected in carrying out duties.
On 21 March 2001 Squadron Leader Graham lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision dated 9 February 2001 (T1). He provided a statement of grounds for the appeal. He noted that the essence of his MCRS claim was that participation in ESA was an activity consistent with his responsibilities and his professional development in the ADF. He submitted that what the decision-maker described as a leave application completed by the applicant was not a leave application. Rather it was a "unit application" in which he sought the Commanding Officer's clearance to participate in ESA. It made no reference to leave. Squadron Leader Graham reiterated the arguments he put in the request for reconsideration (paragraph 3 above) and added that any leave status was, in any event, irrelevant. He wrote, "Personnel, whilst on leave, will engage in activities, such as sport and adventurous training, which is expected by the ADF. In this case my activity was organised by an ADF authorised organisation. As an Officer my conduct, at all times, whether on duty or on leave, is expected to be beyond reproach. In other words I am a servicemen with responsibilities that extend to 24 hours a day, where ever I maybe. Leave just enables me to be away from my normal place of duty. Service personnel are unique employees in that they are expected to be available for duty at all times. There are many activities, which COs often expect personnel to conduct 'in their own time'. The maintenance of physical fitness, and related activities, being good examples."
At the tribunal hearing Squadron Leader Graham explained that his purpose in pursuing his compensation claim was for his long term medical welfare. Although his present needs are covered by the RAAF, later in life when he has been discharged from the ADF he may have earlier onset of ailments resulting from the mountaineering accident and he wishes to ensure he will be covered at that time.
RELEVANT LEGISLATION
The following provisions of the Safety, Rehabilitation and Compensation Act 1988 are relevant: ss 4(1) ("ailment", "employee", "injury", "place of work"), 5(1), (2)(b), 14(1), 72(a).
SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
…
employee has the meaning given in section 5, and also applies to persons 65 years of age or older;
…
injury means:
…
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
…
Employees
5. (1) In this Act, unless the contrary intention appears:
…
"employee" means:
(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
…
(2) Without limiting the generality of subsection (1):
…
(b) a member of the Defence Force; or
…
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person's employment shall, for those purposes, be taken to be constituted by … the person's performance of duties as such a member of the Defence Force ….
…
Compensation for injuries
14. (1) Subject to this Part, Comcare 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.
…
Manner in which claims are to be determined
72. In performing the function referred to in paragraph 69 (a), Comcare:
(a) shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;
…

BACKGROUND

Squadron Leader Graham was born in the United Kingdom ("UK") on 19 December 1963 (T10). He was recruited by the Royal Australia Air Force ("the RAAF") on a lateral transfer from the Royal Air Force with effect from 1 April 1996 (T10). He was said to have brought with him 12 years of military and technical experience gained in his service with the RAF and British Territorial Army (ex A7). He has sophisticated engineering qualifications in that in April 1999 he was assessed by the Institute of Electrical Engineers as meeting the "stringent requirements" of the Institute, achieving the status of Chartered Electrical Engineer, registered with the UK Engineering Council (ex A9). This is recognised as equivalent to full membership of the Institute of Engineers Australia. He has studies towards a Master of Electrical Engineering degree (ex A9).
Squadron Leader Graham was recruited at Flight Lieutenant level as a systems engineer in the Electronic Warfare Project Office (ex A6). He was responsible for the Statement of Work and Configuration Management for acquisition of early warning suites for ADF aircraft (ex A6). By December 1999 he had been promoted to another part of the RAAF in Canberra.
The applicant is a superior sportsman. He participates actively in soccer, squash, skiing, circuit training and has a particular eminence in mountaineering (ex A6, ex A7, ex A8, ex A11, ex A12). In relation to mountaineering, he has engaged in this sport since 1986. In addition to belonging to the AAA he belongs to the New Zealand Alpine Club, the RAF Mountaineering Association and the British Army Mountaineering Association. He holds UK military qualifications as Joint Service Mountain Expedition Leader and Joint Service Rock Leader.
The applicant has received consistently favourable annual evaluations which have at times emphasised his mountaineering and other sporting experience.

In January 1997 (ex A6) a Squadron Leader said of Lieutenant Graham (as he then was) that he maintained a healthy lifestyle involving plenty of physical exercise and participation in team sports. His participation in the ACT interservice soccer competition was noted.
In September 1997 (ex A7) a Squadron Leader said that Lieutenant Graham was extremely fit and took pride in his appearance. He actively sought to participate in Defence sporting and social events, particularly soccer and skiing in which he had represented the RAAF and RAAFSUCAN respectively. He had volunteered his time to represent the RAAF's interests as a committee member of the AAA.
In October 1998 (ex A8) a Squadron Leader wrote of Lieutenant Graham that he was supremely fit, had no trouble passing his annual "PFT" (presumably a physical fitness test) and enjoyed activities requiring physical endeavour. He had continued to represent the RAAF and ADF in climbing, soccer and in sports related management. He was the RAAF representative on the AAA committee, including acting as treasurer on occasion. He participated in both indoor and outdoor climbing and instructing of novice climbers. It was noted that he participated in ESA (presumably in 1997-1998). He represented the RAAF in the ACT inter-service soccer tournament. He also played soccer in a joint service team as part of the ACT civilian soccer competition. He was regularly playing squash, attending circuit training at the RMC Duntroon gymnasium twice weekly and skiing during the winter months.
In December 1999 (ex A9) the assessing officer referred to Lieutenant Graham's exceptionally high level of physical fitness maintained through an active program of sporting activities, representing the RAAF in inter-service soccer, playing regular squash and participating in skiing and rock climbing. Further, the report stated that of significant note was that Lieutenant Graham had participated in the Joint Service mountaineering expedition to Tibet to climb Shishapangma, the thirteenth highest mountain in the world. "This expedition", the report said, "was extremely arduous, and at times dangerous, pushing individuals to the limits of their physical and mental endurance. This achievement demonstrates FLTLT Graham's versatility, teamwork, determination, sound judgement and ability to successfully organise complex logistical requirements in a remote hostile environment".

HEARING, APPEARANCES AND DOCUMENTS

The tribunal convened a hearing in Canberra in this matter on 19 November 2001. Squadron Leader Graham represented himself. The respondent was represented by Mr D O'Donovan of the Office of the Australian Government Solicitor. Squadron Leader Graham gave oral evidence. The tribunal had access to the following documentary evidence:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T20) provided by the respondent.
Exhibit A1 – Minute by Major General R A Powell dated 30 November 1999.
Exhibit A2 – AAA Newsletter dated 12 May 2000.
Exhibit A3 – Leave application by applicant dated 14 December 1999.
Exhibit A4 – Letter to applicant dated 5 November 1999 by Mr Z Zaharias.
Exhibit A5 – Letter to applicant dated 14 March 2001 by Colonel P L Lambert, President of the AAA.
Exhibit A6 – RAAF Officer Evaluation Report on the applicant dated January 1997.
Exhibit A7 – RAAF Officer Evaluation Report on the applicant dated September 1997.
Exhibit A8 – RAAF Officer Evaluation Report on the applicant dated October 1998.
Exhibit A9 – RAAF Officer Evaluation Report on the applicant dated December 1999.
Exhibit A10 – Federation Centenary Everest Expedition – Invitation for RAAF nominations, 18 February 1998.
Exhibit A11 – Applicant's initial application to participate in Federation Centenary Everest Expedition, 9 September 1998.
Exhibit A12 – Applicant's full application to participate in Federation Centenary Everest Expedition, 10 August 1999.
Exhibit A13 – 1996 AAA Annual Report.
Exhibit A14 – Electronic mail message to AAA committee members dated 7 September 1999.
Exhibit A15 – Electronic mail message to ESA 1999-2000 participants, 15 October 1999.

Exhibit A16 – Letter to applicant dated 12 January 2001 from Colonel P L Lambert, President of AAA.
Exhibit R1 – Respondent's statement of facts and contentions dated 23 July 2001.
Exhibit R2 – Defence Instructions (General) PERS 16-11, "Australian Defence Force Policy on Physical Fitness", 13 June 1997.
Exhibit R3 – Constitution and Rules of AAA.
Exhibit R4 – Defence Instructions (Air Force) OPS 4-8, "Individual Readiness", 27 April 2000.
Exhibit R5 – Annex A to exhibit R2.

ARGUMENT
applicant's evidence

Much of Squadron Leader Graham's oral evidence was a restatement of his arguments as set out above in paragraphs 1, 3 and 5 above. However, he was at pains to emphasise that ESA 1999-2000, although not approved by HTA, was an activity of the type expected of Squadron Leader Graham as part of his duties. He told the tribunal that the respondent had not addressed the arguments he put in paragraphs 6 – 8 of T11 (reproduced above in paragraph 1). He criticised the primary decision as hinging on his being on leave at the time of the accident. He submitted that service personnel can be on duty while on leave and that in this respect the respondent had made a fundamental error.
Squadron Leader Graham addressed the reviewable decision. He suggested that it contained certain errors. In T20/55 the decision-maker wrote that ESA was not an approved overseas ATE and that all participants were required to use personal leave and insurance. The applicant informed the tribunal that ESA participants were not told to take out insurance. He referred to T5, paragraphs 11 and 13, where the AAA had recommended that consideration be given to taking out insurance but it was not an absolute requirement.
Squadron Leader Graham referred to a second error in the suggestion that he had lodged a leave application on 5 November 1999. The applicant submitted that this was a unit application, not a leave application. The tribunal considers Squadron Leader Graham to be correct. The unit application is T4 and its purpose seems somewhat akin to a travel requisition in which an officer seeks the approval of a supervisor to engage in travel while on duty. However, he did lodge a leave form on 14 December 1999 (ex A3).
The applicant regarded these errors as evidence that his claims were not being fully considered.
The applicant was critical too of MCRS's processes. He had expected that MCRS officers would discuss the issue of Squadron Leader Graham's duty status with experts in the Department of Defence, however it was clear that they had not.
Addressing the substance of his claims, Squadron Leader Graham submitted that, whether the test as to his participation in ESA was that it must have been "reasonably incidental", "required", "expected" or "authorised", in his situation the test was satisfied. He said that the AAA is an ADF-authorised organisation. Paragraph 1 of the AAA's 1996 Annual Report (ex A13) showed the AAA to be an organisation authorised under the Manual of Army Training to support and encourage alpine AT. The ADF, he said, had organised ESA through the AAA. The ADF had given the AAA $13,500 for ESA in 1999-2000. A proportion of this funding had found its way to Squadron Leader Graham and each of the other participants (ex A2, ex A14, exA15).
Squadron Leader Graham said that he was in New Zealand in January 2000 to prepare himself for possible involvement in the ADF-approved Federation Centenary Everest Expedition 2001. He submitted that ESA was an ATE if one considers T5, paragraphs 5 – 6:
5.        The aim of the exercise is to expose participants to challenging activities in order to develop their leadership, initiative, self-reliance, team and planning skills.
6.        The exercise objectives are for individuals to:
a.        learn new skills;
b.        undertake a mentally and physically demanding activity;
c.operate as part of a small team in which high levels of commitment, motivation and self-reliance are required;
d.        apply their leadership and command skills as appropriate; and
e.        plan and execute their own expedition in an alpine environment.
Squadron Leader Graham saw ESA, although not approved as an overseas ATE, as satisfying the description of an ATE in the Defence Instruction on AT (T3, paragraph 2) where it is stated that the "aim of adventurous training in the ADF is to develop individual and team qualities and skills that enhance performance in the workplace, in both peace and war. These qualities and skills include leadership, teamwork, trust, physical and mental fortitude, initiative, resourcefulness, self-discipline and stress management strategies. These skills enhance performance in all work environments, and particularly in situations of pressure and prolonged stress, such as in armed conflict." No barrier had been erected to participation in ESA, despite the lack of approval.
The tribunal pointed to paragraphs 11 and 13 of T5, the AAA circular to ESA participants in which it was suggested that participants consider taking out insurance given that ESA was not approved. The applicant responded that the exercise was still supported with public money provided by the ADF and was conducted under the auspices of the AAA. He said that the issues identified in ex A1 as the reasons for not approving ESA as an overseas ATE were not relevant to him as an individual. The tribunal notes that Major General Powell, in deciding not to approve ESA as an AT activity, referred to the following:
…
The concept of Exercise Southern Ascent places the onus for organisation at team level where participants establish their own objectives, conduct a risk assessment and determine appropriate risk management strategies. The exercise, in its present form, consists of a number of independent expeditions. Insufficient visibility exists to allow approval of Exercise Southern Ascent as an Army adventurous training activity. Neither ADS Wellington nor I have been provided with the detail required to ensure responsible oversight, satisfactory evacuation procedures and appropriate risk management strategies.
3. Accordingly, the proposal is not approved. Noting that the activity is scheduled during the block leave period for most ADF units, there seems no reason why participants could not undertake the activity during BRL.
…
It appears to the tribunal that the Major General did not regard the ESA proposal submitted for approval as satisfying the criteria set out in the Defence Instruction on AT in T3. Among other things the proposal was required by the instruction to address command and control arrangements (including DFDA delegations), an emergency communications plan, details of safety and medical arrangements including a contingency plan, prerequisite training requirements for participants, post-activity reporting requirements and details of the disposal of, or management arrangements for, donated equipment. It would seem that the proposal omitted some of this material, given the assessment that there was insufficient visibility in the proposal. Squadron Leader Graham told the tribunal that the 1999 ESA proposal was the same as others presented and approved in earlier years.
Squadron Leader Graham was informed of the rejection of the ESA proposal only four days before he was due to leave Australia on 19 December 1999 Others in the exercise had left as early as 4 December 1999. The applicant took the necessary steps, notably seeking recreation leave, to allow him to go to New Zealand. He could not withdraw without suffering financial penalty and without letting down his climbing partner.
Squadron Leader Graham put to the tribunal that the weight of the evidence showed that his ESA activities were of a type expected of him. He cited s 72(a) of the Act which requires decision-makers to "be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities" in decision-making under the Act.
Later, responding to Mr O'Donovan's final submissions, Squadron Leader Graham argued that the scope of his job was much more than working at a desk in Canberra. He referred to the Defence Instructions (Air Force) OPS 4-8 on Individual Readiness (ex R4). The first paragraph of ex R4 states that the size of the RAAF work force makes it "imperative that all members are capable of undertaking the full range of military duties expected of them. These duties include carrying out specialist occupational functions, as well as general military duties, under arduous physical and mental stresses associated with armed conflict". Paragraph 17 of ex R4 refers to this item in individual RAAF officers' annual assessments. It requires that each assessor is to review "the member's readiness for deployment status and where that person meets requirements is to note 'I have sighted the member's individual readiness for deployment pro forma and the member is ready for deployment in accordance with DI(AF) OPS 4-8' on the member's annual evaluation report". Steps to be taken for a member who does not meet requirements are set out. Squadron Leader Graham indicated that satisfaction of individual readiness requirements is a criterion for promotion. He suggested that he could be called upon for the Afghan deployment in the news at the time of the hearing.
As will be seen below, Mr O'Donovan sought to show that the AAA was an independent club. Squadron Leader Graham pointed to the AAA 1996 annual report (ex A13) in paragraph 1 of which it was stated that the AAA was an organisation "authorised under the Manual of Army Training". He suggested that this did not indicate independence from the ADF. He referred also to other indications of the AAA being a creature of the ADF. In the AAA's rules (ex R3) the AAA's insurance function and accounting rules are taken from the army's Manual of Personnel Instruction (paragraphs 4-4 and 4-5). He referred to paragraphs 4-7 and 4-8 relating to AAA property. That property is defined to include specific items of army property that the AAA can be expected to be holding. Stocktakes of AAA property are carried out in accordance with the Manual of Personnel Instruction (paragraph 4-9).
Squadron Leader Graham conceded that participation in ESA in 1999 was not officially approved. There was, however, tacit approval by the Department of Defence as demonstrated by ESA going ahead with financial support from Defence.
respondent's case
Mr O'Donovan cross-examined Squadron Leader Graham and made final submissions. The following threads emerged from this work.
Squadron Leader Graham's work was in an office environment. He worked from 7.30 am to 5.00 pm Monday to Friday. The physical requirements were minimal.
At no time was Squadron Leader Graham "ordered" to engage in ESA. He was also not ordered to join the AAA.
The recreation leave taken by ADF officers to participate in ESA in 1999 has not been re-credited. The applicant expects, however, that some participants probably went on ESA without taking leave. Squadron Leader Graham knew that he was officially on leave but understood that he could simultaneously be "on duty". The source of most of the problems, said Squadron Leader Graham, was the late advice that ESA was not an approved ATE. Participants could not see how ESA did not meet the requirements of the Defence Instruction on AT. In relation to the non-approval of ESA there was considerable discussion between Mr O'Donovan and the applicant about the non-approval. Squadron Leader Graham eventually submitted that, for ESA not to be related to his duties as a serviceman, HTA would have had to prohibit him from attending.
It was put to the applicant that the AAA was independent of the ADF, that it was outside the ADF command structure. It was suggested that a senior ADF officer could not dictate that AAA funds be used in a certain way. Squadron Leader Graham did not accept this. The AAA's funds emanate in the main from the ADF with some minor finance from small sponsors and the AAA membership. The AAA's funds were said to be managed in accordance with ADF procedures. These procedures provided for auditing and accountability. In Squadron Leader Graham's view an ADF senior officer could declare how AAA funds are to be used. While there is nothing to that effect explicit in the AAA constitution and rules Headquarters Training Command would be of the view that it can dictate. It has never done so but, said the applicant, the AAA has always "toed the line".
Mr O'Donovan noted that the ADF transfers funds to the president of the AAA and the funds are vested in him or her. Squadron Leader Graham replied that the president must answer to the ADF. He knew this as an officer and was confident of the situation even if there is nothing written down to that effect. Mr O'Donovan perused the AAA constitution and rules and suggested that Headquarters Training Command has no power to recover any funds advanced to the AAA. It was the applicant's understanding that the Command has such power. It was put to the applicant that the property of the AAA is owned by the AAA. Squadron Leader Graham responded that this ownership is on behalf of the army. He understood that if the AAA was wound up the proceeds would constitute public money. Mr O'Donovan indicated a constitutional provision stating that the funds would be distributed among members of the AAA. Squadron Leader Graham responded that that may be so for the AAA's funds not emanating from the ADF. To the extent that it suggested such a result as applying to all funds the constitution was wrong.
Mr O'Donovan accepted that the Everest 2001 expedition was a fully approved ATE. It was organised by the AAA for the ADF. Those chosen for the expedition were to be on "special duty" (ex A10). Provision was made for keen ADF climbers who were not selected for the Everest expedition to do the climb at their own expense, however they would not be regarded as on special duty. By December 1999 Squadron Leader Graham was aware that he had not been selected as the RAAF nominee for the Everet expedition. He was, however, the only RAAF reserve and had a reasonable chance of being called on. He would then have been on special duty doing the climb.
In final submissions Mr O'Donovan homed in on the following points. The first was the question of when and whether a service person is on duty, the question of where employment begins and ends. He submitted that people such as Squadron Leader Graham are not on duty 24 hours a day even if they are subject ADF discipline at all times. He cited a number of authorities.

In Re MacKenzie and Commonwealth of Australia (1984) 7 ALD 325 the tribunal considered a case in which a member of the army on short leave was injured in a motor vehicle accident. His claim for workers' compensation was rejected on the ground that his injuries had not arisen out of or in the course of his employment. This may be described as a case concerning an injury occurring between two discrete periods of work. In paragraph 21 of its reasons (at page 333) the tribunal said:
The effect of the last part of sub-s 7(2) of the Compensation Act, deeming the employment of a member of the Defence Force to be constituted by the performance of his duties as such a member, is that the provisions of the Compensation Act cannot be regarded as falling within the wider description of "military law" in sub-para (a)(ii) of the paragraph extracted above, and to which a member of the Permanent Forces (which includes the Australian Regular Army, see para 9 above) is subject at all times. Whether or not Mr MacKenzie is entitled to compensation under the Compensation Act must, as we have said, turn on whether the injury arose "out of or in the course of the performance of his duties as a member of the Defence Force". And that question must be considered without reference to the concept of "continuous military service". The possibility that a member of the Defence Force may at any time be recalled to duty does not mean that everything he [sic] does while off duty is sufficiently incidental to his duty to bring it within the course of his employment for the purposes of the Compensation Act.
In Gregory v Comcare (1997) 72 FCR 196 Cooper J in the Federal Court considered the case of a member of the RAAF who broke his leg during a soccer match played at a barbecue being held at the "Airmen's Club" on a RAAF base. The occasion was organised by members of the employee's section in honour of his discharge from the RAAF. The court held against Mr Gregory. At page 201 Cooper J wrote, "The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. This is because, putting aside injuries suffered while travelling to and from work and the like which are specifically provided for under the Act (see s 6), the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained." However, at page 202, Cooper J registered that "this is not to say that that an injury occurring in an interval between two discrete periods of work can never be one in the course of employment. In any given case, there may be a feature or features of the particular facts and circumstances which establishes a sufficient temporal connection between the place or activity and the employment". Cooper J said that, in contradistinction to an interval between two discrete periods of work there can be "an interval during an overall period of work, such as a lunch break or the kind of period in issue in Hatzimanolis" (above).
From these two cases Mr O'Donovan submitted that Squadron Leader Graham's situation was that his participation in ESA was an activity engaged in between two discrete periods of employment. He was employed as an electrical engineer. He was on recreation leave when mountain climbing, a personal pursuit which was not authorised, required or incidental to his employment.
In Re Mulligan and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1995) 36 ALD 699 Deputy President McMahon dealt with an army man who was posted to Butterworth air base in Malaysia. The employee was granted leave for three days at the resort of Batu Fringi. He was injured in a motor vehicle accident. The tribunal noted that the employee's travel details had to be submitted to a sergeant major and a telephone number to facilitate a recall to duty had to be provided. While on leave the employee was subject to dress regulations and could not visit premises named on a black list. The tribunal said:
(21) It is true that in the past soldiers on short leave had not been considered to be in the course of their employment during the period of that leave. This situation is illustrated in Re Bonnes and Commonwealth (1985) 7 ALN N292, Re MacKenzie and Commonwealth (1985) 7 ALD 325 and Commonwealth v Wright (1956) 96 CLR 536. All of these cases however were decided before Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473; 106 ALR 611. Furthermore the facts in the two tribunal cases can be distinguished from the facts in the present case. Although both referred to periods of short leave, the facts in MacKenzie, in particular, indicate that this leave was taken in the normal course of the applicant's service at Townsville. It may well be that MacKenzie (at least) would be decided today in the same manner, notwithstanding what was said in Hatzimanolis. However, in my view, the majority judgment in that case, must have a real bearing on the question of liability under the present facts.
(22) In that case the High Court frankly embarked upon what it called (at 482)"the rational development of this area of the law" and set about reformulating the principles which determine whether an injury occurring between periods of actual work is within the course of employment. Their Honours were mindful of the"current conception of the course of employment" as demonstrated by the then recent cases.
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(24) Separate reasons were given by Toohey J. In his view, (at 491) activities fell within the category of those which the employee is reasonably authorised to do in carrying out his duties if those activities are ones which the employer saw as making the working conditions more attractive than they would otherwise be. The evidence in the present case is that the purpose of recreation leave is just that. Conditions on the base were not as good as those the applicant had been used to. After 4 or 5 days hard work, those conditions could be made more attractive if the employee were encouraged to seek recreation. That encouragement must result from the dearth of facilities at the base, coupled with the recognition that leave will be taken away from the base, and coupled with the regulation to some extent of the employees' activities while on leave.
(25) Notwithstanding their reference to inducement or encouragement (at 484) I understand their Honours to hold the view that such intervention by the employer is not necessary in order to characterise the course of employment. What they said (at 483) was that 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. Encouragement or inducement to spend that interval or interlude at a particular place or in a particular way is therefore not necessary to characterise that time as a period of work. It merely assists in the recognition of the true character of the course of employment.
(26) Accordingly the arguments proposed by the respondent in the present case, to the extent that they sought to distinguish Hatzimanolis on the facts, are irrelevant. It is true that in the present case the respondent did not provide transport and did not organise the excursion. Nevertheless the observations of the High Court, it seems to me, extend beyond the particular facts of that case.
(27) The present applicant was posted to Butterworth for 3 months. He was required to live in accommodation provided by the respondent. He was required to conduct himself in a certain fashion when on authorised leave. Importantly, he was liable to recall at any time, for any reason and in order to ensure that he was available for recall was obliged to leave details of his movements with his company sergeant-major. In the circumstances of the present case, it seems to me that the 3 months posting constitutes one overall period or episode of work, rather than a series of distinct periods or episodes of work of 5 days duration, each 8 days. In other words, as the applicant put it, one is always on duty. The heightened degree of alertness required of guards and the perceived danger in proceeding anywhere outside the base in uniform and to certain locations, in particularly, whether in or out of uniform, all seem to me to assist in characterising the tour of duty as a discrete overall period of work. Certainly these factors assist in distinguishing Mr Mulligan's tour of duty from Mr MacKenzie's.
(28) In any event, to some extent the respondent, both expressly and impliedly induced or encouraged the applicant spend his leave at a particular place or places and in a particular way. Although suitable resorts were not nominated, unsuitable ones were prohibited. The dress code and behaviour code were imposed. The evidence was that military police saw that these codes were observed more strictly than if the soldier concerned had been on leave in Australia. Whether or not this amounts to an inducement or encouragement it seems to me, however, is not necessary to decide in order to arrive at a finding that the applicant was injured in the course of his employment. Looked at objectively, what happened on the road from Batu Fringi that night occurred in an interval within an overall period or episode of work, namely the period of his tour of duty.

In Re La Palombara and Commonwealth of Australia (1984) 6 ALD 526 the tribunal considered the situation of a member of the Royal Australian Navy ("the navy") stationed at HMAS Albatross who was injured while on a cross-country motor cycle expedition organised by the Albatross Cross-Country Motor Cycle Club. This club had been formed by an enthusiastic motor cyclist who was a petty officer, along with other navy people with like interests. The applicant's officer-in-charge had written that the Albatross Club was officially recognised and controlled by navy members. However, it was not registered as an official Albatross club. The officer-in-charge wrote that he believed that Mr La Palombara thought it to be a fully navy-controlled club and this was accepted as fact by the tribunal. The tribunal's thinking is exposded in the following extended extract:
15 The question to be considered then is whether the applicant's participation on a holiday weekend in the Albatross Motor Cycle Cross-Country Ride was reasonably incidental to his employment. A further development of the concept of activities incidental to employment from which the Tribunal has received assistance is found in the judgment of Stephen J in Bill Williams Pty Ltd v Williams (1972) 126 CLR 149 at 159 where his Honour stated:
"That which is incidental to a worker's work depends upon 'the sufficiency of the connection between the employment and the thing done by the employee' which is 'a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of employment': Whittingham v Commissioner of Railways (WA) [ 46 CLR 22 at 29] per Dixon J. It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he 'was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties', Humphrey Earl Ltd v Speechley [ 84 CLR 126 at 133] per Dixon J. Whether the accident has happened 'while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service', Pearson v Fremantle Harbour Trust [42 CLR 320 at 330]."
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18 The Tribunal, having regard to all the evidence and in particular to the applicant's prior experience at HMAS Nirimba, to the facts of the initiative for organization of the drive having come from seamen and officers all senior to himself, of the organization being seemingly conducted principally on-base and including a meeting on the tarmac, of the ride being publicized in an official-sounding notice on base notice boards, of kit being loaded at Albatross in working hours, of use being made of a Service helicopter, markers, walkie-talkies, medical kit, maps, of catering assistance being forthcoming from Service sources, and of articles of issue clothing being prominently worn in the presence and participation of commissioned and non-commissioned officers and leading seamen, it was reasonable for the applicant to have believed that the particular cross-country ride and the existence and activity of the Albatross Motor Cycle Cross-Country Club were officially authorized. We accept that he did entertain such a belief.
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20 The Tribunal finds that this is a case of a young seaman, conscious of his obligation to keep fit and to participate in sporting activities, being led to believe by a combination of circumstances — the actions and possibly in some respects inaction, of those set in various ranks in authority above him, that a club bearing the base name had been organized on-base and was proposing an adventurous, physically demanding activity on the weekend, for the holiday on which no other Naval sporting event appears to have been planned. He believed the intended activity to be officially sanctioned and took part in it with many senior to himself. He was aware from his instruction and service experience that serving Naval personnel are subject to discipline at all times even when not on duty. He was exercising in the company of many whose orders if given as to his participation or for example, cessation and return to base, he would at his cost ignore. He was riding in sections of cyclists each one of which was led and was physically controlled in its movements to a degree, by senior seamen or officers. There was in existence a civilian motor-cycle club in Nowra; but it was his membership of the personnel of Albatross Base, the conditions of his life there away from his home while in service, and the activities being organized on-base that were the sine qua non of his participation in the ride. These factors to which should be added, we believe, that of what should be taken to be official if informal approval of the initial formation of the club and organization and conduct of the particular ride, establish, we consider, such a nexus of conduct as to render the motor cycle ride a concomitant of or reasonably incidental to this employment in the temporal concept. Or, to use the words of Dixon CJ in Commonwealth v Oliver (1962) 107 CLR 353 at 356, we consider the circumstances as shown indicate the applicant's participation in the cross-country ride to have been "ancillary or consequential to (his) work but yet sufficiently within the sphere of his employment to make it proper to say that when he (was) within it he (was) in the course of his employment ..."
21 The Tribunal concludes therefore that the applicant's injury the subject of this application, was suffered in the course of his employment, and that he is entitled to be compensated for it. The determination under review should be set aside.
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In Re Strang and Commonwealth of Australia (1984) 5 ALN N424 the applicant was a Chief Petty Officer in the navy. He sustained an injury playing rugby union with a civilian club while on stand down. He trained regularly with the club and argued that that was necessary to maintain his fitness at the required level as the facilities at his place of work were inadequate. It was possible to obtain approval for a member of the navy to play with a civilian club. The applicant was aware of this. Where approval was obtained the navy officer was covered for workers' compensation. On the occasion in question his playing was not approved because he had been asked to play on only the morning of the match. Within its reasons for finding in the applicant's favour the tribunal said (paragraph 13), "In the present case it is, I think, significant that the Navy devised the system of granting approval to its members to play with non-service teams and accepted that, if such approval were given to any member and he [sic] were injured, the Commonwealth would be liable to compensation him [sic] under the Act. That it did so indicates that it considered that the interests of the Navy were being served by its members paying sport with non-service teams, and that it encouraged them to do so. Members of the Navy, including the applicant, would, I am satisfied, reasonably have drawn that conclusion." There was evidence that the navy had intended to approve such participation only where opportunities for sport of an equivalent type were not available to navy members. However, there was other evidence that, at operational level, requests were always approved. The tribunal said (paragraph 14) that "[t]he impression [navy members] would have had was that they were generally encouraged to take part in sporting activities and that the Navy would 'cover them' against injury sustained while taking part in non-service sporting activity if they applied for approval to take part in it. In the particular circumstances of the applicant the tribunal concluded (paragraph 15), "Although [his] participation in the football match in which he was injured was not expressly authorised, I am satisfied that it was an activity such as members of the Navy were encouraged to undertake and accordingly was tacitly authorised." The applicant succeeded in his appeal.
In Re Pearson and Royal Australian Navy (1980) 1 CCD 310 the applicant, a navy officer, broke his leg while on a skiing holiday where he was practising for the navy ski team. With the navy's knowledge and acquiescence the applicant had taken part in trials for the team. A member of the selection panel told him that he was selected for the team but that he needed to practise certain aspects of his skiing. He was doing so at the time of his injury. The applicant succeeded. The Commonwealth Employees' Compensation Tribunal noted that the applicant had claimed on two bases, that he had a specific obligation to train for the navy ski team and that he had a general duty to keep fit. The tribunal rejected the argument based on the general requirement of fitness because it would open the way to too many claims. However, it allowed the claim on the basis that the applicant was engaged in activities required of him in order to participate in the ski team. The tribunal further held that consideration of whether an event has occurred in the course of employment is to be assessed from all the surrounding facts and not by the imposition of any single test.
In Hatzimanolis v ANI Corporation Ltd (above) the High Court considered the case of an employee who, while working as a casual employee for his employer in NSW, applied for a job with the employer at Mt Newman in Western Australia. The employee was told by a management representative that the contract was for three months, that they were required to work for 10 hours a day six days a week, that there might be some Sunday work, that they would have access to two company vehicles and that they could visit areas around Mt Newman and the Pilbara region if they had the chance. After three weeks at Mt Newman the manager said that the employees would not be working on the next Sunday and that he was organising a trip to Wittenoom Gorge for anyone who would like to go. They used the company vehicles. One of the vehicles crashed during the trip and the applicant was injured. Mason CJ, Deane, Dawson and McHugh JJ said at pages 483-486:
For the purposes of workers' compensation law, 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. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A key break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until the particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episode of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.
Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen".
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… when regard is had to Mr.Pope's position in relation to the other employees, his role as spokesman for A.N.I. in explaining the general nature, terms and conditions of the employment at Mt. Newman, and his part in organizing and providing the vehicles and food for the 800 kilometre trip, the most cogent conclusion to be drawn from the evidence is that he acted on behalf of A.N.I. when he organized the trip and invited the appellant and the other employees "to come along". In the absence of any denial from Mr. Pope or other officers of A.N.I., the inevitable conclusion is that he was authorised to make the company's vehicles available for the use of the employees on their day off and that his authority extended to organising and making the vehicles available for sightseeing journeys of the kind embarked on on this particular Sunday.
Toohey J said at page 491:
But when regard is had to the terms of the appellant's employment, what was said at the time of his engagement, the location where he was working, the hours and days worked, the use made of the respondent's vehicles for the convenience of its employees and the role of the respondent's supervisor in organizing the trip to Wittenoom Gorge for the appellant and his fellow employees, the conclusion is inevitable that the appellant was, at the time of the accident, doing something which he was "reasonably... authorised to do in order to carry out his duties", that is, an activity which the respondent saw as making the working conditions more attractive than they would otherwise be.

Mr O'Donovan's second point was that Squadron Leader Graham's activities in ESA were expressly not authorised and that refusal of authorisation came from a senior source. The Defence Instructions in T3 made clear than overseas ATEs required the approval of the HTA. Paragrtaph 12 of T3 was said to link liability under the Act with approval of an ATE by the commanding officer. The tribunal notes that, even then (ie where an ATE has been authorised), the instruction says that each claim for compensation will be decided on a case-by-case basis having regard to all the relevant circumstances of the case. The table in paragraph 30 of T3 made abundantly clear that, for AT overseas, "Headquarters Training Command" provided the relevant "commanding officer" whose authorisation was necessary. Major General Powell had refused his approval (ex A1) and this was clearly communicated in T5.
Mr O'Donovan's third point was that the AAA, in proceeding to run ESA regardless, did so independently of the ADF. He reiterated the indications that the AAA was constitutionally independent of the ADF in its decision-making.
Mr O'Donovan's third point was that the unapproved AT activities were unconnected with Squadron Leader Graham's primary duties as an electrical engineer.
In Mr O'Donovan's third point he conceded that Squadron Leader Graham's AAA work may have constituted a secondary duty but he submitted that the duty extended only to the required committee work, not to climbing. He suggested that if mountain climbing were a secondary duty then so too would be Squadron Leader Graham's squash playing. Squadron Leader Graham responded that it was clearly preferable that he have actual experience of mountain climbing if he were required to effectively represent the RAAF on the AAA committee. He had actually run ESA in 1999 and 2000. Squadron Leader Graham argued that his annual evaluations concentrated on his mountaineering to a far greater extent than his squash playing. That, he said, suggested that mountaineering was more relevant to the RAAF. Mr O'Donoval replied that, while Squadron Leader Graham's commanding officers had seen his mountaineering as desirable, not all such desirable activities that are helpful to one's career are done in the course of employment. An example was a lawyer who lectures in a law school.
Mr O'Donovan submitted that at the highest it could be said that Squadron Leader Graham's participation in ESA was not objected to by the RAAF provided it was done in recreation leave time.
Mr O'Donovan cited the High Court in Hatzimanolis (above) where it stated at page 482 that compensation does not flow merely because an employer encourages an employee to do some activity.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal finds that, as a member of the Defence Force, Squadron Leader Graham is an employee in accordance with s 5 of the Act.
The tribunal finds that Squadron Leader Graham suffers, or has suffered, from an ailment or ailments as defined in s 4(1) of the Act. The ailments are listed in paragraph 2 of these reasons. Several of them may be expected to cause Squadron Leader Graham problems of an ongoing nature. These include the whiplash injury, the knee injury and the shoulder injury. An ailment is not compensable under the Act unless it is also an injury or a disease as defined in s 4(1).
Squadron Leader Graham can be taken to have suffered an injury under the Act if he has suffered an injury arising out of, or in the course of, his employment (s 4(1), definition of "injury"). If Squadron Leader Graham is to succeed in his application the tribunal must find that he injured himself while participating in ESA. Further, the tribunal would have to find that he was engaged in an activity that he was required, expected or authorised to do in order to carry out his duties.
The tribunal finds from the totality of the applicant's evidence that he was injured during ESA. The sole issue for determination is whether his participation in ESA was required, expected or authorised. The tribunal has considered the authorities discussed in paragraph 35 above and distils from them the following propositions:
(a)Whereas a service employee may be regarded as on duty at all times for the purposes of military law, and especially military discipline in accordance with military law, whether or not he or she is entitled to compensation under the Act turns on whether the injury arose out of, or in the course of, the performance of his or her duties as a member of the defence force (s 5(2) of the Act and Re MacKenzie (above)).
(b)Ordinarily, but not invariably, an injury that occurs in an interval between two discrete periods of work, even if occurring at a place or while doing an activity that the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury that occurs in the course of employment. However, there may be a feature or features of the particular facts and circumstances that establish a sufficient temporal connection between the place or activity and the employment (Gregory v Comcare (above)).
(c)Recreation or similar leave can be extended by an employee to help make inadequate conditions in a workplace, especially one situated at a remote location to which the employee has been posted for a period, more attractive. In such a case recreation leave will not be taken to break the employee's temporal connection with the workplace (Re Mulligan (above); Hatzimanolis (above)).
(d)Where a service employee has been posted overseas for an extended period and is required to live in accommodation provided by the Defence Force, and to conduct himself or herself in a certain fashion when on authorised leave, and where the employee is liable to recall at any time, then the three months posting constitutes one overall period or episode of work, rather than a series of distinct periods or episodes of work (Re Mulligan (above)).
(e)As in (d), but more generally in civilian and service employment, where an employee is required to embark on an undertaking for work that will extend over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. An example is where an employee is required to go to a remote place and live in accommodation provided by the employer for the limited time until a particular undertaking is completed, the likely result is that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work (Hatzimanolis (above)).
(f)Consistent with (e), an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way (Hatzimanolis (above)).
(g)Where a service employee engaged in an unauthorised sporting activity organised by a sporting club whose formation was informally approved by the ADF and he or she engaged in the activity under the actual but mistaken and reasonable belief that the activity had been approved by the ADF, the activity was reasonably incidental to the employee's employment in the temporal concept (Re La Palombara (above)).
(h)Consistent with (g), where a representative of management in the context of civilian employment organised and provided food and vehicles for an 800 kilometre sightseeing trip for employees stationed in a remote location, in the absence of any denial from the representative or other management, the inevitable conclusion was that the representative was authorised to make the company's vehicles available for the use of the employees on their day off and that the representative had authority to do this (Hatzimanolis (above)).
(i)In a case where a service employee played football in a civilian football club, and where he did this without express permission because he was invited to play too late to obtain permission, the activity was tacitly authorised because it was an activity that members of the service were encouraged to undertake (Re Strang (above)).
(j)Where a service employee had been selected for the service ski team but had been told to practice certain aspects of his skiing, and where he spent a week of his holidays at Perisher doing this, injuring himself in the process, the injury was compensable because he was engaged in activities required of him in order to participate in the ski team (Re Pearson (above)).

It is immediately clear that many of these principles can be of no use to Squadron Leader Graham. Paragraph (a) puts paid to any argument that compensation should flow from the notion that a service person is on duty at all times. Mr O'Donovan would argue that paragraph (b) reflects Squadron Leader Graham's position and shows why he cannot be compensated. Paragraph (c) does not apply because Squadron Leader Graham is not stationed at a remote location with deficient facilities. Paragraphs (d) and (e) do not apply to assist Squadron Leader Graham because he was not stationed in a remote location or overseas. Paragraph (f) does not apply to assist Squadron Leader Graham because he was not induced by the employer to spend time engaged in ESA. Paragraphs (g) and (h) do not apply to assist Squadron Leader Graham because he was aware by the time he embarked on ESA that the activity was not formally authorised. Paragraph (i) probably does not apply to Squadron Leader Graham because ESA was expressly not authorised so it is difficult to argue that there was tacit authorisation.
However, paragraph (j) deals with a scenario remarkably close to the situation in which Squadron Leader Graham has found himself. Squadron Leader Graham's case is similar to Re Pearson (above). Squadron Leader Graham had been selected as the only RAAF reserve for the Everest 2001 expedition. In ex A4, in informing the applicant that he was a reserve, the expedition leader wrote on 5 November 1999, "I encourage you to continue furthering your mountaineering experience and make a positive contribution towards the expedition planning and organisation. Experience has shown that changes to the team composition occur, and this is particularly likely with such a large deployment to East Timor". The Everest expedition was, of course, a fully approved activity. In effect Squadron Leader Graham spent a period of leave, as had Petty Officer Pearson, doing as the expedition leader had encouraged him.
The tribunal considers that Re Pearson (above) was correctly decided and finds on a similar basis that Squadron Leader Graham, while engaged in mountaineering calculated to help ready him for the authorised Everest expedition, sustained injury in the course of his employment.
The tribunal is fortified in its decision by the material in paragraph 11 above concerning Squadron Leader Graham's high level of fitness and the particular emphasis placed on his mountaineering experience by both Squadron Leader Graham and his supervisors in his annual assessments.
The tribunal also finds that Squadron Leader Graham's immediate supervisors were best placed to comment on the relevance of his secondary duty to his overall performance and effectiveness as an officer. As paragraph 11 above shows, he won high praise in these respects from his supervisors. The tribunal accepted Squadron Leader Graham's argument that his secondary duty as AAA committee member was performed more effectively because of the credibility he clearly brought to this work. This is borne out in ex A2, ex A5 and ex A16.
The tribunal noted that Squadron Leader Graham's commanding officer supported his compensation claim (T10). He apparently considered the injuries to have occurred in the course of Squadron Leader Graham's employment. Squadron Leader Gibbon most probably did not consider he was making a legal judgment in supporting the claim. However, he can be taken to have brought a commonsense judgement to the task.
Dealing with Squadron Leader Graham's application in this way means that it is unnecessary to deal with such issues as the status, independent or otherwise of the AAA and arguments of implied approval of ESA in 1999.
CONCLUSION
These findings mean that the tribunal disagrees with the decision under review and considers that Squadron Leader Graham should qualify for compensation. This decision may not bring him many benefits in the first instance. His medical requirements are fully covered by the RAAF at present and many of his injuries were very probably only temporary. However, the tribunal's decision will mean that he has an entitlement to compensation under s 14(1) of the Act which will be of benefit to him if ever he cannot work or if he has to pay for treatment, in either case because of the injuries he sustained on 5 January 2000.
DECISION
The tribunal sets aside the decision under review and decides that the respondent is liable under s 14(1) of the Act to pay compensation to the applicant in respect of injuries suffered by the applicant in New Zealand on 5 January 2000 if those injuries result in the applicant's death, incapacity for work or impairment.
The applicant is entitled to costs associated with this application in accordance with the tribunal's General Practice Direction.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior Member
Signed: Diane Popple (sgd) for..............................................
  Associate
Date of Hearing  19 November 2001
Date of Decision  2 August 2002
Advocate for the Applicant      Self
Counsel for the Respondent    Mr D O'Donovan, Australian Government Solicitor's Office
Solicitor for the Respondent    Australian Government Solicitor