Haughey and Military Rehabilitation and Compensation Commission (Compensation) - [2018] AATA 969

Haughey and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 969 (23 April 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2013/6707
Re:Timothy Haughey
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:23 April 2018
Place:Brisbane

The reviewable decision of the Commission made on 14 November 2013 is set aside.
In substitution for the Commission’s decision, it is determined that Mr Haughey suffered from a service disease, namely adjustment disorder, with an onset date of on or about 28 June 2008 and the Commission must accept liability for such disease pursuant to s 23 of the Act.
The matter is remitted to the Commission for appropriate action.
The parties have liberty to apply within 30 days in relation to costs.

..........................[Sgd]..............................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION – claim for compensation for an injury – adjustment disorder as a result of an attack while on base – Statement of Principles concerning adjustment disorder - whether Applicant is entitled to compensation for claimed injury
LEGISLATION
Administrative Appeals Tribunal Act 1975
Military Rehabilitation and Compensation Commission Act 2004
Safety, Rehabilitation and Compensation Act 1988
Statement of Principles concerning Adjustment Disorder No 23 of 2016
Veterans’ Entitlements Act 1986
CASES
Bucknall and Military Rehabilitation and Compensation Commission [2007] AATA 2014
Comcare and Muir [2016] FCA 346; 150 ALD 321
Coward v Military Compensation and Rehabilitation Service [2006] FCA 840
Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525; 117 ALD 141
Military Rehabilitation and Compensation Commission v Roberts [2007] 93 ALD 554
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2005) 222 CLR 115
Schmid v Comcare [2003] FCA 1057
REASONS FOR DECISION
Deputy President J Sosso
23 April 2018
INTRODUCTION

Mr Timothy Haughey (the Applicant) rendered service in the Royal Australian Air Force (RAAF) between 25 September 2007 and 15 June 2012. All of the Applicant’s service during this period was peacetime service as defined by s 6(1) of the Military Rehabilitation and Compensation Act 2004 (the Act). The Applicant re-enlisted with the RAAF in June 2014 and continues to serve.
On 17 October 2012 the Applicant lodged a Claim for Liability and/or Reassessment of Compensation – Exhibit 1 T5 pp. 19 – 32. The claimed condition was described as “Psychiatric”, “Psychological” and “Psychological/PTSD” – pp. 19, 25, 30, 32; and the date of the onset of the condition was said to be 28 June 2008 – p. 19.
The Applicant contends (Applicant’s Statement of Issues, Facts and Contentions – Exhibit 7 at para 16) that he suffered a service injury or disease consisting of an adjustment disorder and alcohol abuse in or about 2008 as a result of an assault that occurred in June 2008.
The Applicant had a history of seeking the assistance of psychologists prior to the June 2008 event. On 10 April 2008 he was assessed by Ms Peta Fry, a Defence Force Psychologist. Ms Fry made the following observations – Exhibit 1 T14 p. 313:
“AC Haughey reported his mood as lower than usual since commencing the CISCON course, and reported his motivation and energy for the training is reduced, describing himself as on a ‘downward spiral’ in relation to being able to improve his motivation and performance on course. His affect demonstrated range and reactivity, and was congruent and appropriate to his content of speech. He reported poor sleep since commencing on course, good appetite, and regular PT attending regular course activities and attending the gym two-three times/week in his own time. He reported some loss of interest in usual activities, social withdrawal, and some ruminating thoughts regarding his decision to enlist in the first place. The member described somewhat limited stress management strategies, which results in slightly limited judgment and insight into what may be contributing to his current situation and what he can do to better manage the problems.”
The Applicant reported that he rarely drank alcohol during the week, although he had a few drinks on weekends with his peers. He also reported that he had no health issues, previous mental health concerns or any family history of mental health issues – p. 314.
Ms Fry concluded as follows – p. 315:
“AC Haughey was administratively referred for assessment regarding the member’s poor performance on course and suitability for mustering. On assessment, the member presented with mild-moderate symptoms of stress, which he attributes to his dissatisfaction with his IET for CISCON and resulting poor performance on course and loss of motivation for his current career path. There was no evidence of significant psychopathology or risk of harm to self or others. It is likely the member’s motivation for study would improve with an appropriate re-mustering, following further psychometric testing to exclude any other cause of the member’s poor academic performance.”
In June 2008 the Applicant was stationed at Simpson Barracks in Victoria. The uncontested facts (with the exception of paragraph (h)), as outlined in Exhibit 7, are as follows (para 5):
(a)the Applicant was a member of a “holding platoon” in which he was the only RAAF member;
(b)he was required to live at the barracks full-time;
(c)at all times when on the base, members were obliged to comply with military rules and procedures;
(d)members were allowed to leave the barracks on weekends, provided their IDs were handed in by 6pm on Sunday nights;
(e)members of the holding platoon lived and slept in the same block in rooms of four;
(f)a soldier (BG) lived in a room neighbouring the Applicant’s room;
(g)the Applicant and BG only knew each other in their capacities as member of the same platoon;
(h)it was encouraged and expected that members of the platoon would socialise together.
The Applicant was further assessed by Ms Fry on 29 April and 15 May 2008 (pp. 316, 319). By the date of the last assessment he had been stationed at Simpson Barracks for two months. Ms Fry made the following observations of the Applicant at the 15 May assessment – Exhibit 1 T14 p. 319:
“There was no evidence of cognitive impairment, perceptual disturbance or formal thought disorder. He described his mood as somewhat lowered due to being situation (sic) in the DFSS Holding Troop and now residing in the Holding Troop lines, in which he is the only RAAF member”.
The Applicant made a Statement dated 16 June 2015. Outlined below are key extracts from that document – Exhibit 2 pp. 40 – 42:
“2.I initially enlisted in the Royal Australian Air Force (‘RAAF’) in the CISCON (Communications Information Systems Controller) area on 25 September 2007…
5.By about April of 2008 my stress levels were increasing. I had not studied properly since High School and I found the CISCON training incredibly stressful. I was falling behind, trying to keep up and found it very difficult and overwhelming. I went to the Defence Psychologist around this time for some treatment.
6.Because I was not coping, I was looking at getting transferred out of this section. Accordingly, in April 2008, I was moved into the ‘holding’ section which was designed for injured members that were in between different areas of Defence and looking for transfers. This was at Simpson Barracks in Melbourne.
7.The holding section at the time had about twenty (20) to thirty (30) members. [BG] was one of the members in the holding section. I only knew him because he was in my section. We were not friends outside of work…
10. Whilst in the holding platoon, I was the only RAAF member and so I was the only one wearing an RAAF uniform. As a result, I felt isolated from everybody else and was repeatedly put down, probably in jest, about being ‘RAAF scum’. However, I did not take it that way. The conduct increased my already present stress levels and I continued to seek psychological treatment throughout this period.
11. On Friday, 29 [sic] June 2008, I finished duty at around 4:00 pm. Following this, a few of us in the holding section went to the ‘boozer’ on base to have drinks. A ‘boozer’ is a soldier’s bar. I cannot recall the number of members in my holding team that were there. I also can’t recall whether [BG] was there as well.
12. By about 10:00 pm, I went out with the other holding troop members to Bridie O’Reilly’s Tavern, where we had more drinks. Whilst there, I hung out and may have had a drink with [EL] who was also in the holding section. I cannot recall whether [BG] was out as well as I did not speak to him that night.
13. At about 2:00 am, I went back to my girlfriend at the time’s house. Her name was [CR]. I stayed there the night and for the rest of the day until about 5:30 pm, when my girlfriend dropped me back to Simpson Barracks. She stayed in the car while I quickly returned to my room to grab a few things as I was staying at her place another night. As I was grabbing things from the barracks I was assaulted by [BG]…
14. Following this assault I developed psychological symptoms including stress, anxiety, restlessness and difficulty sleeping. I lost a lot of confidence and trust in people. I was also having some intermittent nightmares, particularly about being held down. As a result, I started to drink excessively and more frequently. I incurred a significant amount of debt due to my excessive alcohol consumption, which I am still paying off today. I became more aggressive and frustrated which affected my relationships with people close to me…”
What is not made clear from the above statement is that EL was BG’s girlfriend, and BG formed the opinion that the Applicant was flirting with her. In his Service Police Statement, the Applicant provided greater detail of what occurred when he returned to the Simpson Barracks on 28 June 2008 – Exhibit 1 T10 pp. 237 – 238:
“7. A short time later, I arrived at my room and I noticed that the area seemed to be quiet and appeared as though no one was around. I went into my room and grabbed some of my personal belongings, my Laptop computer, DPCU uniforms, slouch hat and other bits and pieces. As I came out of my room I noticed [redacted] standing in the doorway of his room. His room is located next to mine on the left as you walk out. [Redacted] was only a couple of metres away.
He said: ‘Where are you going?’
I said, ‘Going out’.
I then continued walking down the hallway towards the exit near the toilets, still carrying my laptop computer and my personal belongings in both hands.
8. As I made my way down the hallway near Room 8, I heard [redacted] say something and I looked back over my shoulder and saw [redacted] approaching me from behind very quickly. At that same time [redacted] punched me to the right side of my face really hard and I felt pain to my face. The force and shock of the blow caused me to lose my balance and I tried to use the hallway wall to support myself. As I was falling down [redacted] punched me two more times to my mouth very hard and kicked me in the back and shoulder area repeatedly on my left side. I felt considerable pain in my face, mouth and back, I cannot recall what hand or leg [redacted] used to punch and kick me.
9. [Redacted] showed no signs of stopping the attack so I tried to protect myself by placing my hands up in front of my face, at this point I was still holding onto my belongings and I was lying on my back. I heard [redacted] say something.
He said, ‘This is for messing with my girlfriend and that’s what you get for being a ‘Raffy’ or words to that effect.
[Redacted] was referring to me being in the RAAF; however, at the time I had no idea what he meant by his comments regarding his girlfriend.
10. As I lay on the ground in the hallway I blacked out a couple of times due to the pain and shock of being assaulted. I noticed that my face was bleeding quite a bit and was dripping on my hands and uniforms which I was still holding. When I saw the blood I panicked and screamed out for help a number of times. [Redacted] only stopped attacking me when people began to come out of their rooms to see what was going on…”
The Applicant’s version of what occurred is supported by a Statement provided to the investigating police officers by Alexei Matveev, who was also residing in the Barracks. The relevant parts of his statement are set out below – Exhibit 11:
“5. On the evening of 28 June 08, the exact time I cannot recall (after dinner), I was in my room on the computer when I began to hear banging noises coming from outside in the hallway. I did not pay much attention as people tend to fool around sometimes in the lines (barrack block).
6. A short time later I started to hear pleas for help. I could hear a male voice saying ‘please help me’. I still disregarded it as I thought someone was playing and it was not real. The pleas for help did not stop and I thought it may be for real, so I went out into the hallway see what was going on.
7. When I came out of my room I saw HAUGHEY, about three – four metres away lying on the floor in the hallway covering his face with his hands. I also saw [BG] standing about half a metre away from him near HAUGHEY’S head. There was no other person in the hallway at that time. Not long after, several other members came out of their rooms, but when I first saw HAUGHEY, there was no one else in the hallway. [BG] looked agitated and angry.
8. HAUGHEY was still lying on the ground and it looked like he had been punched or assaulted as he had blood all over his face. At that stage other members of DFSS came out of their rooms to see what was going on and [BG] walked off down the hallway back to his room I believe.
9. HAUGHEY remained on the ground as he was too scared to get up. I informed him that [BG] had gone and he could get up now. HAUGHEY had blood all over the right side of his face and blood was coming from his mouth. He had a look of shock and fear on his face. There were also bags and clothing on the floor next to him.”
The Applicant was taken from the Simpson Barracks to the John Knott Emergency Department of Epworth Hospital in Richmond. The treating physician, Dr Craig Castle, made the following notes – Exhibit 1 T3 p. 16:
“Attended our Emergency Department on 28/06/2008 at 22:07 hours and was seen by Castle, Dr Craig D
DiagnosisTim was punched in the face 5 times and kicked in the back. Brief LOC, GCS 15, 1 cm laceration above lip, small intra oral tears. Bruised right shoulder.
Procedures Small facial lacerations
Intraoral lacerations
Concussion…”
It is not contested (Exhibit 12 para 5) that the Applicant did not seek out professional assistance in the period following the assault for any of the problems he described in his Statement of 16 June 2015. He was, however, assessed by Dr Lisa Blackwell, a Consultant Psychiatrist on 19 September 2012 (Exhibit 1, T4, pp. 17-18). Her assessment of the Applicant is set out later in this decision.
BG was subsequently tried and convicted in the Australian Military Court for his assault of the Applicant and sentenced to 63 days detention, with 14 of those suspended – Exhibit 12 para 5(h), Exhibit 11. BG pleaded not guilty and the Applicant was required to give evidence as a witness.
On 2 July 2008 the Applicant accepted a transfer (remustering) as a Clerk – Exhibit 12 para 5(f).
In November 2008 the Applicant was interviewed regarding his attitude and work ethics. The interviewing officer was Cpl Boyd and the record of interview dated 28 November 2008 contains the following exchanges – Exhibit 11:
Cpl Boyd: “AC HAUGHEY I HAVE BEEN MADE AWARE THAT YOUR WORK ETHIC AND WORK ATTITUDE IS NOT UP TO AN ACCEPTABLE STANDARD. I RECOGNISE THAT YOU ARE A JUNIOR MEMBER BUT YOU SEEM EITHER NOT BE ENTHUSED ABOUT BEING A CLERK OR YOU ARE JUST TREADING WATER BEFORE MOVING ON TO ANOTHER JOB.
WHAT DO YOU SAY TO THIS?
Haughey: I enjoy working here, but being a Clerk is not my long term goal. I want to do something else later but I am happy to be here at the present time….”
The Applicant also draws the Tribunal’s attention to difficulties he experienced in the 2009-2010 period. A clinical record of 18 November 2009 reports the Applicant “apparently not sleeping, feeling very stressed, threatening to harm other members in the workplace. Has self-referred to the base psychologist (appt next week) & Padres (appt Mon)…” – Exhibit 1 T14 p. 277.
Contemporaneous records disclose that the Applicant experienced “workplace conflict over the past 6 weeks” – Exhibit 1, T14 p. 277.
On 24 November 2009 the Applicant was assessed by a psychologist (R Byrant). Relevant extracts from the report of that assessment are set out below – Exhibit 1 T14 pp. 306 -307:
“he reports being angry about a decision about his leave, feeling stressed out, poor sleep, headaches. He said he had also been delayed in receiving his LACs and was informed [of] this the day before he expected to receive them. He thinks he has ‘personality issues’ with his chain of command. The member commences leave at the end of this week. He does not want to come to work, feeling angry, and feels it is probably affecting his attitude. He is looking forward to next year with a change of staff in his c of c…
MHS was administered. Poor sleep, can’t fall asleep thinking of things since beginning of October. Saw Dr Duffy last week but who suggested no action until the appt with me. Reports anger re his leave and decisions at work, ‘hate’ going to work, is starting to do activities and exercise less, feeling low in energy. Says is drinking more alcohol because of work problems.
Action: I encouraged member to write out his case and leave it with his CO to consider, and reinforced he needs to use his chain of command to sort things out at the time that they occur, rather than allowing them to build up. Also suggested he provide supporting documentation to claim that his latest ROC was in relation to a task he had been instructed not to complete.
I agreed to phone his CO to lend my support for the member accessing maximum leave available as he is clearly angry and feeling stressed and would benefit from this given there appears to have been some confusion…I also confirmed that the member had been seeking a psych appointment over recent weeks (support to him feeling stressed for some time) but due to workload I was unable to see him earlier. I provided the member with some reading regarding thinking and anger. Provided some initial CBT re the role of his thinking in how he was feeling at work. Encouraged member to increase positive behavioural strategies ie exercise and other activities. Reviewed sleep hygiene. Advised to reduce alcohol consumption.
Opinion: I suspect the member’s symptoms will decrease when he is on leave. If he returns to work feeling no better I recommended that he make another appt with MO and request clin psych appts. Member agreed that further appt with medical would not assist as he is unlikely to start taking medication 4 days prior to leave for an overseas holiday. NFA at this stage.”
A clinical note of 15 February 2010 (Exhibit 1 T14 p. 278) records the Applicant:
“having trouble sleeping, related to equity issues @ work. Ongoing problem but now feels unable to concentrate @ work due to stress & little sleep. Insomnia related to stress in work…”
Two days later the Applicant was again examined by a GP who made the following observations – Exhibit 1 T14 p. 279:
“Work Issues – conflict with chain of command. Feels he was overlooked for promotion & bullied. Not sleeping well thinking about it. Not depressed. No anxiety….Happy with all of life except work trouble getting to sleep due to thought merry go round.
No self harm ideation.
Impression
No mental health issue.
Normal appropriate response to stressful work environment…”

By 20 April 2010 the Applicant’s condition apparently worsened with “concerns of depression”, feeling “anxious, not sleeping well”. However, the treating doctor noted that the Applicant “does not report any specific events in private life which may be contributing, stress @ work. Having issues with chain of command, received a formal warning. Flat affect” – Exhibit 1 T6 p. 68.
The next day the Applicant was assessed by Dr A Nicholas, Clinical Psychologist who noted – Exhibit 1 T6 p. 67:
“Multiple stressors – work + loss of relationship – severe.”
The Applicant continued to be treated by psychologists during May 2010 where he again reported workplace issues and grief over a spent relationship – Exhibit 7 para 16.
Dr Varghese in his comprehensive report of 2 September 2015 outlines in meticulous detail the various medical reports and notes of the period 2008 – 2010, and reached this conclusion – Exhibit 5 p. 12 (emphasis in original):
“(ii) Mr Haughey can also be said to have suffered minor Adjustment Disorder in 2010 in response to some problems in service life and more particularly the break up of a relationship. On this occasion the diagnosis is more justifiable given that he did seek psychological help.”
As previously noted, the Applicant voluntarily left the RAAF in June 2012, and lodged his claim in October 2012. Prior to lodging his claim, the Applicant was assessed by Dr Lisa Blackwell, Consultant Psychiatrist.
In her report of 19 September 2012, Dr Blackwell provided the following diagnosis of the Applicant (emphasis in original) – Exhibit 1 T4 pp. 17 – 18:
“Had times where got a bit stressed prior to assault but no sustained depression/anxiety. Calm, easy going generally. Outgoing previously.
Initially after attack felt quite down, depressed, not sleeping, withdrawn, hard to motivate self, difficulty concentrating struggled to do work. Lots of headaches. Lasted – 18 months. Got better after the hearing.
Since attack – loss of confidence, felt v let [down] by airforce for not keeping safe, and not giving support afterwards. Let down by the system – didn’t do anything to support afterwards or acknowledge. Lost confidence in ability to do job, previously liked it and felt good about it. Feels has damaged career. Thought about leaving after it happened, asked again in 2009 – told had to finish 4 year contract. This year offered voluntary redundancies so left. Generally – less trusting of others, particularly men (all ages), bit more wary of people don’t know.
At time of assaults things going well otherwise. In relationship (few months), split up not long after attack when he moved back to Williamstown…
In terms of diagnosis, Tim fits criteria for a diagnosis of PTSD. Although it is not severe it does seem to be chronic and was possibly more severe earlier on after his injury. It has affected him both socially and vocationally. There is also a possibility of a post-concussion syndrome, at least in the months following the assault. Tim seems to have a relatively healthy personality structure with no previous history of mental illness prior to the assault. There is possibly some vulnerability from a somewhat unstable upbringing…”
On 25 March 2013 the Military Rehabilitation and Compensation Commission (the Commission) denied liability for a post-traumatic stress disorder (PTSD) under s 23 of the Act on the basis that the Applicant was not considered to be on duty at the time of the assault. In rejecting the claim, the Commission provided the following reasons – Exhibit 1 T7 p. 220:
“Dr Blackwell’s Report of 19 September 2012 describes the circumstances of the assault that occurred in Simpson Barracks in 2008 while you were collecting clothes for an overnight stay at your girlfriend’s accommodation.
Based on current policy, 24 hour service coverage is only provided in limited situations such as operational service overseas, on a ship at sea (but not when docked) and where a member is living on base and not permitted to leave. In all other situations compensation coverage generally ceases upon completion of duty (with the exception of travelling to a member’s accommodation).
The day that Mr Haughey attended the Simpson Barracks was Saturday 28 June 2008. Mr Haughey was not on duty and in the process of gathering his belongings for the purpose of an overnight stay with his girlfriend. His service is not covered by any of the exceptions listed above for 24 hours coverage. He was not considered to be on duty at the time of his physical assault and the claim is therefore rejected.”
The Applicant subsequently requested a reconsideration of this determination – Exhibit 1 T8, T9 pp. 224 – 226.
On 14 November 2013 the Commission confirmed the decision under review – Exhibit 1, T1 pp. 6 – 13, T12 pp. 248 – 255. The Commission was not reasonably satisfied that the assault was an occurrence that happened whilst the Applicant was rendering defence service – pp. 9, 251. In reaching this conclusion the Commission made the following findings – pp. 8 - 9, 251 – 252:
·The cause of your PTSD was a specific event/activity, namely, the assault which took place on 28 June 2008. This is supported by the available medical evidence. I am not satisfied that the physical environment of the accommodation provided to you was a contributing factor…
·The assault took place on Saturday 28 June 2008 shortly after 7.30pm at Simpson Barracks in the hallway outside of your room while you were walking down the hallway towards the exit. There is no evidence that the activity which caused the PTSD, namely the assault, was reasonably required, expected or authorised.
·The assault took place on a Saturday evening at a time when you were not on duty or returning to duty. You had been away from your accommodation with your girlfriend since the prior night and had attended your room briefly (with your girlfriend waiting in the car) for a personal reason. Namely, for the purpose of picking up some personal items as you were staying at your girlfriend’s house again that night. It was for this purpose that you had entered and then left your room after 7.30pm at night and were in the public hallway walking towards the exit at the time of the assault.
·In relation to the assault itself, I acknowledge your contention that it was carried out by ‘another member’, however, most significantly, I am satisfied the assault occurred due to a private dispute. I am reasonably satisfied of this having regard to the available Service Police documents and also the matters contemporaneously reported by you to medical staff…
·Furthermore, the specific circumstances in which you were talking to the ‘girlfriend’ which led to this view being taken by ‘the other SIG’ similarly occurred due to personal activities unrelated to your service.
·The prior night, Friday 27 June 2008, you had been out at an Irish Pub drinking and socialising with a number of other members of ‘Holding Troop’. You ‘drank quite a bit of alcohol’ and were ‘quite drunk’. You left around 2.00am. It was at this private activity that you had been in attendance with a number of people, including ‘the other SIG’s girlfriend’.
·There is no available evidence to support a conclusion that it was reasonably required, expected or authorised that you would attend this private activity with that group of people on Friday night 27 June 2008.”
On 19 December 2013 the Applicant applied under s 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of this decision – Exhibit 1 T1 pp. 1 – 5.
This matter was heard in Brisbane on 5 February 2018. The Applicant appeared in person and gave evidence. He was represented by Mr Matt Black of Counsel who was instructed by Maurice Blackburn Lawyers. The Respondent was represented by Ms Nitra Kidson of Counsel and was instructed by the Australian Government Solicitor. Concurrent medical evidence was given by Dr Benjamin Duke, Consultant Psychiatrist and Dr F T Varghese, Consultant Psychiatrist.
LEGAL OVERVIEW
The Act provides rehabilitation and compensation coverage for most members of the Australian Defence Force on or after 1 July 2004 – s 2(1).
The Act applies to warlike service, non-warlike service and peacetime service. All three services are collectively referred to as “defence service” – s 6(1). It is not contested that the Applicant rendered peacetime service during the period of his first enlistment.
The Commission must accept liability for an injury sustained, or a disease contracted, by a person if that injury or disease is a service injury or disease under s 27 – s 23(1).
Section 5 defines “disease” to mean, inter alia, “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)…”
Section 27 prescribes legislative tests for determining if there is a connection between the claimed injury, disease or death and service. Only one head of liability need be satisfied. The various “tests” or “heads of liability” are in the alternative and are not cumulative.
In this matter the relevant “tests” are propounded in s 27(a) – (c):
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i)the injury was sustained due to an accident that would not have occurred; or
(ii)the disease would not have been contracted
but for:
(iii)the person having rendered defence service while a member; or
(iv)changes in the person’s environment consequent upon his or her having rendered defence service while a member.
The High Court in Roncevich v Repatriation Commission (2005) 222 CLR 115 provides guidance on the proper interpretation of the phrase “arose out of, or was attributable to” in s 70(1) and (5) of the Veterans’ Entitlement Act 1986 which is almost identical in wording to s 27(b) of the Act.
In that case Mr Roncevich was an enlisted NCO in the Australian Army. He attended dinner at the Sergeant’s Mess of Holsworthy Military Barracks where he was stationed and resided. The dinner was in honour of a distinguished service visitor. It was expected that Mr Roncevich would attend the dinner. During the course of the evening he consumed liquor and subsequently fell from the window in his second floor room injuring his knee.
McHugh, Gummow, Callinan and Heydon JJ held that the phrase “arose out of, or was attributable to” is to be given a broad meaning. Their Honours said (125 – 126):
“22 Another argument of the appellant should however be accepted. It was, that in asking itself whether the appellant’s intoxication was caused by, or arose out of a task that the appellant had to do as a soldier, it asked itself the wrong question, and not the question that the Act requires it to answer. The question that it should have asked is the one posed by s 70(5), whether the injury arose out of, or was attributable to, any defence service of the appellant?
23 The evidence in this case is capable of providing an affirmative answer to the correct question. As Dixon J said in the passage from Henderson quoted by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely temporal one.
24 There is little doubt in this case that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance at the Sergeant’s Mess and the consumption in some quantity, even perhaps to the point of intoxication short of physical incapacity, of alcoholic drinks. So too, the need for the appellant’s return to his quarters and preparation of his uniform for the next day, are capable of being seen to have arisen out of, or of having been attributable to, his defence service. The remaining question is whether, climbing on to the box to expectorate through the open window, and then falling because he was inebriated, similarly either arose out of, or was attributable to his defence service…
26… what in fact happened occurred on the Base and interrupted the performance of a military duty, the preparation of the appellant’s uniform…It was also of relevance that the inebriation of the appellant occurred on the Base. That is not to say however that a defence-caused injury inevitably could not have resulted if the events occurred at a hotel rather than the Base. Nor is it irrelevant that at the time when the appellant hurt his knee it almost certain that he would have been subject to military discipline.
27 The use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without qualifications conveyed by such terms as sole, dominant, direct or proximate.”
There is also judicial authority for the proposition that the “but for” test in paragraph 27(c) is to be construed to give “the fullest relief which the fair meaning of its language will allow” - Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1; 93 ALD 554 at [60]/554.
When determining a claim in relation to peacetime service, the Tribunal is required to decide the matter to its reasonable satisfaction – s 335(3).
No onus of proof is imposed on either a person claiming compensation or the acceptance of liability, the Commission or any other person in relation to a claim – s 337.
Nonetheless, s 339 provides that reasonable satisfaction is to be assessed in certain cases by reference to a relevant Statement of Principles (SoP). In this regard s 339 is similar to s 120B of the Veterans’ Entitlements Act 1986.
Subsection 339(3) provides, inter alia, that in applying s 335(3) to determine a claim, the Tribunal is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person is a service injury or disease only if:
the material before the Tribunal raises a connection between the injury or disease of the person and some particular defence service rendered by the person while a member; and
there is in a force an SoP; and
the material and the SoP upholds the contention that the injury or disease of the person is, on the balance of probabilities, connected with that service.
In this matter the Applicant relies on SoP 23/2016 in respect of the claimed adjustment disorder – Exhibit 7 para 1(b).
The Instrument contains the following definition of “adjustment disorder” – s 7(2) SoP 23/2016:
“(2) For the purposes of this Statement of Principles, adjustment disorder means a disorder of mental health meeting the following diagnostic criteria (derived from DSM-5):
(a) The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).
(b) These symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
(i) Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation; or
(ii) Significant impairment in social, occupational, or other important areas of functioning.
(c) The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of pre-existing mental disorder.
(d) The symptoms do not represent normal bereavement.
(e) Once the stressor or its consequences have terminated, the symptoms do no persist for more than additional six months.
Section 9 of the SoP lists 10 factors, and provides that at least one of them must exist before it can be said that, on the balance of probabilities, adjustment disorder is connected with the circumstances of the person’s relevant service. In this matter, the relevant factor is (1):
“experiencing a category 1A stressor within three months before the clinical onset of adjustment disorder”.
“Category 1A stressor” is defined in the Schedule to the Instrument as follows:
“category 1A stressor means one of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being the subject of a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured.”
It is not contested that the relevant traumatic event in this matter is found in paragraph (b) of the above definition, and that the Applicant in fact was subjected to a serious physical attack or assault – Statement of Facts, Issues and Contentions of the Respondent – Exhibit 9 – para 47.1.
CONSIDERATION
Issues
The two key issues to be determined are:
did the Applicant suffer a psychiatric condition (adjustment disorder) after he was assaulted on 28 June 2008; and, if so
was the condition a service disease as defined in s 27 of the Act.
Before dealing with these issues, a preliminary jurisdictional issue needs to be addressed.
The 2010 psychiatric condition
The Applicant initially contended (Exhibit 7 paras 35 - 40) that he suffered a service-related disease, consisting of an adjustment disorder with a clinical onset of about February or April 2010 as a result of workplace conflict or stress.
This contention was not pursued by the Applicant, and does not form part of his Statement of Issues, Facts and Contentions dated 4 September 2017 (Exhibit 8) nor his Outline of Submissions dated 5 February 2018 – Exhibit 12.
The Respondent contended that the Tribunal had no jurisdiction to consider the 2010 psychological condition as part of this Application – Exhibit 9 paras 50 – 59.
The Tribunal’s attention was drawn to s 319 which requires a claim must be in writing, given to the Commission and is compliant with the requirements prescribed in the relevant subordinate legislation.
In this matter the original claim did not refer to the 2010 psychological condition, nor was it mentioned in subsequent proceedings, including the Application for Review by this Tribunal.
The Respondent also drew the Tribunal’s attention to Comcare v Muir [2016] FCA 346; 150 ALD 321 where Flick J made the following observations ([37]/332):
“Although limited flexibility is conferred upon the Tribunal to reformulate a claim and whatever may be the outer limits of the power to do so, a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010-2012. Unlike the claim resolved by Katzmann J in Kennedy where there had been a general description of the injury suffered and no specification of the date of injury, the facts in the present case stand in contrast. On the facts of the present case there was repeated reference to the injury the subject of the claim being that suffered in October 2013. It is not capable, with respect, of a conclusion that the claim was for an injury suffered at an earlier, unspecified point of time.”
The above finding of Flick J has direct relevance to this matter. From the outset the Applicant has focused on the events pertaining to the assault of 28 June 2008. The claimed psychological condition is said to have resulted from that assault, and the workplace stress in the 2009 – 2010 period has, ostensibly, no relation to the 28 June 2008 assault.

The Tribunal agrees with the Respondent that the 2010 psychological condition is not within the scope of the Applicant’s claim and the Tribunal’s jurisdiction is not enlivened under s 354(1) of the Act.
The Applicant did not press this issue at the hearing, however it is preferable that the Tribunal deal directly with it and to clarify that, as a matter of jurisdiction, the Tribunal cannot deal with it.
Did the Applicant suffer a psychological condition following the June 2008 assault?
The medical evidence before the Tribunal is mixed on this central issue, as summarised below.
Dr Lisa Blackwell, Consultant Psychiatrist
As previously noted, Dr Blackwell assessed the Applicant on 12 September 2012. She made a preliminary diagnosis of PTSD, although she opined that it was not severe, but appeared to be chronic and was possibly more severe after his injury – Exhibit 1 T4 p. 18.
Dr Richard Burek, Consultant Psychiatrist
The Respondent referred the Applicant to Dr Burek for psychiatric assessment. The Applicant was assessed on 26 May 2014 and Dr Burek prepared a report dated 5 June 2014 – Exhibit 4.
Dr Burek was briefed with the T Documents, Defence medical records and the summonsed material from the Newcastle Medical Practice. In particular, Dr Burek referred to the above report of Dr Blackwell as well as the various psychology assessments in the 2008 – 2010 period – Exhibit 4 pp. 5 – 6.
Dr Burek made the following observations – p. 7:
“He stated that he started drinking more heavily in the context of his assault and was drinking 16 standard drinks five days a week. This continued for a year until he met his new partner and started living with her in August 2012. Since then he has curtailed his drinking.
He had problems with a superior officer in February 2010. There were private legal problems starting in March 2011 when he had charges and AVOs against him. This lasted for about a year. In June 2011 he stated that he was almost run over by police searching for someone else. In all these situations he stated that his sleep worsened, re-experiencing of the assault. And nightmares increased temporarily then subsided.
Since leaving the military in June 2012 he has had very few symptoms. He has been working for 18 months as a security officer 30 hours a week without problem. He has cut back his alcohol, and lives peacefully with his partner and their 4-year old child. He described no interference in his ability to function either occupationally or domestically.
While in the military, he saw a psychologist twice when he was stressed. On leaving in September 2012 after seeing lawyers, he saw his general practitioner and was referred to a psychiatrist that he saw once. He was diagnosed with mild and relapsing PTSD, suggested medication and psychologic treatment which he did not follow up.
Currently his only problems are some initial insomnia, recollections or nightmares possibly once a month, and no other problems.
I conclude that he does not have a posttraumatic stress disorder. He does not fulfil the second part of the criteria (a). Although he suffered an assault, he does not describe feeling ‘intense fear, helplessness or horror’. He does fulfil criteria (b) in that he has had at times recurrent intrusive distressing recollections and recurrent distressing dreams. He did not describe any of the symptoms of section (c) to deal with persistent avoidance of stimuli associated with trauma or any numbing of general responsiveness. At times in his life he does fulfil criteria (d) where he has difficulty falling asleep and irritability.. He did not describe impaired concentration, any hypervigilance or exaggerated startle response.
As such I do not consider that he has posttraumatic stress disorder. He has no formal psychiatric diagnosis. He answered positively to tests administered by the psychologist when he was having trouble with his course in April 2008. This was academic stress. He was also stressed for a year with his private legal problems.
I have noticed in the file review that he always answered in the negative in a section in the annual assessments pertaining to psychiatric symptoms. The first time he answered positively was to question no 155 on his discharge.”
Having concluded that the Applicant was not suffering from PTSD, Dr Burek opined – p. 8:
“Mr Haughey has suffered from a series of minor adjustment disorders with anxiety and depressed mood.”
Dr Burek gave the following answer to the question as to when this condition first arose – p. 9:
“Based on file material he was stressed when he was struggling with his course requirements in early 2008 – before the assault. This resolved with change in his work.”
Dr Benjamin Duke, Consultant Psychiatrist
The Applicant was assessed by Dr Duke, at the request of his legal representatives on 18 May 2015. Like Dr Burek, Dr Duke was briefed with the key documents currently before the Tribunal – Exhibit 2 ST4 p. 28.
In the section of the report headed “HISTORY OF INCIDENT”, Dr Duke gives the following account of the Applicant’s symptoms following the June 2008 assault – p. 30:
“Following the assault Mr Haughey reports a period of 12 to 18 months of psychological disturbance. His level of drinking increased to the point where he was drinking six to seven standard drinks of spirits per day. He was increasingly fearful and cautious around others, with fear of being assaulted again. The Defence Force moved him to a different barracks block in order to separate him from the person who had assaulted him. He reports being depressed and less socially active during this time. He denies being irritable or aggressive, but was increasingly nervous and edgy. During this time he reports the onset of problems with poor sleep including poor sleep, middle insomnia and calling out in the middle of the night.
Mr Haughey did not seek medical, psychological or psychiatric attention for these difficulties. He reports that the majority of these symptoms settled down over a period of approximately 12 – 18 months, and reports that by late 2009 was essentially back to his normal pre-morbid self. The only ongoing difference he reports from his pre-morbid personality is that he is a bit more untrusting of people and not as outgoing. He also reports ongoing problems with middle insomnia. Mr Haughey reports waking in the middle of the night, and that partners have told him that he wakes up screaming. He has no recollection of any dreams or nightmares when waking. Mr Haughey will occasionally ruminate and have flashbacks to the assault when triggered by events that remind him of this, but denies any ongoing non-triggered flashbacks or nightmares. There is no evidence of any psychomotor agitation, there is no evidence of any avoidance behaviours, and there is no evidence of any physiological arousal.”
Dr Duke concluded as follows – p. 33:
“Mr Haughey is a 30 year old man who in June of 2008 was assaulted outside his room at the Simpson Barracks. This assault was unprovoked, and Mr Haughey subsequently developed symptoms of depression and anxiety consistent with an adjustment disorder with mixed anxiety and depression. His level of alcohol use also increased to the point where he would have also met the criteria for alcohol abuse. These symptoms appear to have settled over a 12 – 18 month period, and there are no ongoing psychiatric sequelae at this time.
Mr Haughey does report some issues with trust and decreased levels of socialisation following the assault, but these do not constitute sufficient grounds for an ongoing psychiatric diagnosis. Mr Haughey also reports ongoing problems with middle insomnia and crying out in the middle of the night. He has not recollection of nightmares causing these awakenings, and this does not appear to be causing any form of functional impairment.
I do not believe that Mr Haughey’s symptoms were ever of sufficient severity or breadth to have met the diagnostic criteria for an acute stress reaction or Post Traumatic Stress Disorder.”
In response to the Question “Your Diagnosis”, he responded as follows – p. 34:
“Mr Haughey does not currently fulfil the criteria for any psychiatric diagnosis. In the immediate aftermath of the assault I believe that he developed an adjustment disorder with mixed anxiety and depression as well as alcohol abuse disorder.”
Dr Duke was also asked whether he agreed or disagreed with any of the enclosed medical reports. The reports he was provided included those of Dr Blackwell and Dr Burek. His response was as follows – p. 35:
“The GP entry at the time of referral to Dr Blackwell states that Mr Haughey was experiencing minimal psychiatric symptoms at the time of referral. This is consistent with the provided history, and the report of Dr Burek.
The report from Dr Blackwell, in which Mr Haughey was diagnosed with PTSD, describes a range of symptoms which had settled with time. I think that Dr Blackwell’s diagnosis of PTSD represents a greater level of symptom burden that Mr Haughey currently reports as having experienced in the immediate aftermath of the assault.”
Dr Duke prepared a further report dated 18 July 2016, following a request to provide an analysis of the psychological impact of difficulties the Applicant was suffering while attending CISCON training in the February to April 2008 period. Dr Duke’s conclusion was as follows – Exhibit 6 p. 4:
“I do not believe that Mr Haughey met the criteria or was suffering from any psychiatric condition during his time at the CISCON training or as a result of his participation in the CISCON training. There was no evidence to support a period of sustained or pervasive change in mood or elevated anxiety levels above and beyond what would be expected as a normal stress response to the academic difficulties he was experiencing. These elevated stress levels appear to have settled upon his transfer out of the CISCON training program.”
Dr F T Varghese, Consultant Psychiatrist
The final medical report was prepared by Dr Varghese who was briefed by the Respondent to undertake a psychiatric evaluation of the Applicant.
The report of Dr Varghese presented to the Tribunal is dated 2 September 2015, and the examination occurred on 27 July 2015.
Dr Varghese made the following provisional diagnosis having interviewed the Applicant, but before reading the accompanying documentation (emphasis in original)– Exhibit 5 p. 6:
“In early 2008 while Mr Haughey was a trainee in the RAAF and only six months after enlisting he suffered an assault at the base at the hands of an army person. The incident was reported and the assailant subjected to military discipline. Mr Haughey attended hospital but did not suffer any serious injury and he returned to training after a few days off.
Mr Haughey did not realise that the incident had any emotional effect on him. He does however report significant alcohol abuse for some years. He ceased alcohol abuse after an incident involving girls who were wrecking his house. He then decided he was drinking too much and his alcohol use now is quite moderate. He reports having had some counselling for relationship issues but none with respect to the assault.
In 2012 when he was being discharged after the redundancy, Mr Haughey had an interview with a medical officer who on noting the assault asked him why he had not sought compensation for PTSD. It was only after this interview that he realised he had a psychiatric condition and looked up PTSD on the internet. He reports having seen a psychiatrist sometime after this.
Mr Haughey does not report any disciplinary issues in the RAAF or any issues of performance. The mental state is not consistent with any current mental disorder. Moreover Mr Haughey’s overall psychosocial functioning is quite good and is not consistent with suffering from a mental disorder.
Mr Haughey may well have suffered an Adjustment Disorder following on the assault and as would be expected this would be in remission within weeks and certainly by six months. He does not describe any other psychiatric decompensation although there was alcohol abuse. Currently he cannot be said to be suffering from any mental disorder in any meaningful way.”
After reading the accompanying documentation, Dr Varghese made these comments (emphasis in original) – p. 12:
“I reiterate that Mr Haughey does not currently suffer from any psychological condition.
He may have suffered an Adjustment Disorder as a result of the assault but this by definition would be in remission within six months. The diagnosis of Adjustment Disorder is theoretical as discussed above as there is no data to indicate that there was clinically significant impairment or distress out of proportion to the event. One cannot presume that there was Adjustment Disorder because the assault occurred unless one uses inductive reasoning.”
Consideration
Doctors Burek, Duke and Varghese were all of the opinion that the Applicant did not suffer PTSD as a result of the assault. The only contrary diagnosis was that of Dr Blackwell. Dr Burek, in particular, addressed the question of PTSD in his report of 5 June 2014 and comprehensively refutes the possibility of such a diagnosis on the facts and medical evidence presented. The Applicant did not press this issue, and instead relied on Dr Duke’s diagnoses of adjustment disorder and alcohol abuse as a result of the June 2008 assault. Accordingly, the Tribunal finds that the evidence presented does not support a finding that the Applicant suffered PTSD as a result of the assault.
The Respondent contests the submission that the Applicant suffered a psychological condition, namely adjustment disorder following the assault – Exhibit 13, para 9.
The Respondent drew the Tribunal’s attention to Dr Varghese’s opinion that the Applicant might have suffered a psychological condition following the assault, but highlighted that there is no contemporaneous evidence supporting such a diagnosis – Exhibit 9 para 45.
It is not disputed that there is no contemporaneous evidence of the Applicant suffering a psychological condition immediately following the assault. In particular the Applicant did not seek professional assistance following the assault, nor did he report any symptoms consistent with an adjustment disorder within six months of the assault. The Respondent is correct in highlighting that it was not until his discharge from the Army in 2012 that it was suggested to the Applicant that he had suffered a psychiatric condition, and that prior to this he did “not know” of his condition.
In short, the evidence indicates that the Applicant failed to disclose or self-report any psychiatric problems flowing from the assault at any stage between 2008 – 2011. This, of course, does not assist the Applicant.
A close reading, however, of Dr Varghese’s report suggests a more nuanced analysis is required.
Dr Varghese opined – Exhibit 5 p. 13:
“Again there is no psychiatric condition. If he did suffer an Adjustment Disorder, and I would reiterate that this diagnosis is theoretical but could be regarded as a reasonable hypothesis, then by definition it would have ceased within six months of the event.”
As Dr Varghese opines, a diagnosis of adjustment disorder, is “a reasonable hypothesis”.
Dr Burek while comprehensively discounting the possibility of a PTSD diagnosis, opined that the Applicant had “suffered from a series of minor adjustment disorders with anxiety and depressed mood” – Exhibit 4 p. 8.
Whilst Dr Burek points out that the stresses experienced by the Applicant were primarily related to workplace and relationship issues, his report does not exclude the June 2008 assault as a stressor and relevant contributor to the onset of an adjustment disorder.
Dr Duke was firmly of the view that the June 2008 assault resulted in the Applicant developing symptoms of depression and anxiety consistent with an adjustment disorder – Exhibit 2 ST4 p. 33.
Dr Blackwell’s report, as previously noted, also supported a finding that the Applicant suffered a psychiatric injury following the assault, however she went further and reported the Applicant to have developed PTSD. While the PTSD diagnosis is not accepted, nonetheless her diagnosis supports a finding that the assault did result in the onset of mental health issues.
The Tribunal also had the benefit of hearing Dr Duke and Dr Varghese give concurrent oral evidence.
Dr Varghese testified that it was possible that the Applicant had an adjustment disorder following the assault, but again highlighted that there was no contemporaneous account of this. Essentially however, Dr Varghese stated that he could not rule out a diagnosis of adjustment disorder.
As noted, the Applicant’s case has some obvious problems. The fact that he did not seek out any medical assistance for his claimed anxiety and depression weighs against him, as does the absence of any contemporaneous evidence of him showing signs of psychiatric illness or reporting that he was suffering from such an illness. In short, the only medical evidence before the Tribunal consists of ex post facto diagnoses by medical experts given years after the stressor event, with the first such diagnosis occurring four years thereafter.
In light of the paucity of contemporaneous medical evidence and the extensive period of time between the stressor event and the Applicant reporting psychological symptoms, the Respondent contends that the Tribunal should find against the Applicant because it must be satisfied on the balance of probabilities, and the not the balance of possibilities – Exhibit 8 para 46, Exhibit 13 paras 9 - 15.
Psychiatry is an inexact science. When determining, many years after an event, if a person suffered a psychiatric condition, a decision-maker has to carefully weigh up the evidence presented and pay particular regard to the evidence of an Applicant.
In this matter, the expert evidence is relatively consistent on both the question of whether the Applicant suffered from PTSD or, alternatively, an adjustment disorder. As to the former, the clear weight of expert opinion is that no such diagnosis is possible. In contradistinction, none of the experts ruled out that the Applicant suffered, or may have suffered, from an adjustment disorder. Even Dr Varghese opined that the onset of such a psychiatric illness following the assault was a reasonable hypothesis.
The Tribunal closely observed the Applicant give evidence. He presented as an honest and reliable witness. The Applicant’s failure to seek out professional assistance at the time is by no means fatal to his case. A person suffering from a psychiatric illness is, by that very fact, prone to act or abstain from acting in a way that a person not suffering from such an ailment would behave.
It may be, as Mr Black submitted, that the Applicant failed to seek assistance because he did not think he needed any, and not because, in reality, he was well. This is consistent with the Applicant’s previous evidence that he did not realise that he was suffering from an illness.
The Applicant, correctly, invites the Tribunal to look at the totality of the evidence. That evidence discloses that the Applicant was severely traumatised by the assault and exhibited behavioural symptoms in the months thereafter consistent with the occurrence of a psychiatric injury.
The Tribunal agrees with the Applicant (Exhibit 12 para 8) that there is no rule of law requiring the existence of contemporaneous evidence as a precondition for satisfying the requirements of SoP 23 of 2016. Accordingly, the Tribunal accepts the Applicant’s evidence and has accorded it due weight.
The Tribunal, consequently, is reasonably satisfied that the evidence presented demonstrates that the Applicant suffered an adjustment disorder as defined in s 7 (2) of SoP 23 of 2016, and that he experienced a Category 1A stressor as required by s 9(1) of the SoP.
Was the condition a service disease?
Introduction
Having accepted that the Applicant was subjected to a serious physical attack or assault, and that within three months thereafter there was a clinical onset of adjustment disorder, the remaining issue is whether the Category 1A stressor was related to the Applicant’s defence service in one of the ways prescribed in s 27 (a) – (c) of the Act.
Paragraph 27(a)

The Applicant contends (Exhibit 7 para 31) that the his psychiatric condition resulted from an occurrence that happened whilst he was rendering defence service, because:
(a)the psychiatric condition was a result of the 2008 assault; and
(b)spending time in and around his room in the barracks and socialising with other members of his platoon was an incident of his service, and, accordingly, the June 2008 assault was an occurrence that happened whilst the Applicant was rendering defence service.
The Respondent, however, contends that the Applicant was not rendering defence service either when socialising with other members of his platoon at two bars in the evening of 27 June 2008 or when he visited the barracks to collect his belongings on 28 June 2008 – Exhibit 8 para 48. This flows, it is contended, because:
(a)the Applicant was off duty, and so these activities occurred during an interval between discrete periods in the Applicant’s work and not during an overall period of his work; and
(b)the activities were not incidental to the performance of his duties, rather they were private activities the Applicant did of his own accord.
As the Tribunal finds, as explained below, that both s 27(b) and s 27(c)(iii) are met, it is not necessary to make a finding under s 27(a).
Principles underpinning s 27(1) – (c)
There is merit, however, in at least outlining some the key principles that underpin the making of findings under s 27(a) –(c) as illustrated in two Tribunal determinations and one Federal Court decision.
Military Rehabilitation and Compensation Commission and Archer
A very helpful guide is provided by Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525; 117 ALD 141 (Archer).
Deputy President Groom and Dr Walters made the following observations (at [55] – [64]/152 - 153):
“55. In the Tribunal’s view the test in Section 27(a) may, in some circumstances, be more difficult to satisfy than either Section 27(b) or Section 27(c). This is because it requires proof of a temporal relationship between the ‘occurrence’ and the person’s service as well as a causative factor. The words ‘resulted from’ are words indicating causation…
56. The temporal element in Section 27(a) goes beyond the actual performance of the work which the person is employed to do and includes the ‘doing of whatever is incidental to the performance of the work’ and includes whatever the workman is ‘…required, expected or authorised to do in order to carry out the actual duties…’ (See Henderson v Commissioner for Railways WA (1937) 58 CLR 1.
57. Ms Mackey for Mr Archer submits that Section 27(a) of the Act is satisfied in the circumstances of this application. It is submitted that Mr Archer was actually rendering defence service at the time of his injury. Ms Mackey suggests that defence service should be interpreted broadly and should include ‘encouraged activity’. It is argued that socialising on the balcony was encouraged by the army and should therefore be considered defence service…
59. As we find that both Section 27(b) and section 27(c)(iii) are satisfied it is not necessary for us to express a final view on the respondent’s contention that the occurrence which caused the injury happened when Mr Archer was rendering defence service. We do, however, consider that the temporal test in s 27(a) although not strictly confined to actual work Mr Archer was required to do as a radio operator, may be somewhat more difficult to satisfy than the ‘attributable to’ and ‘but for’ tests in s 27.
60. A secondary Section 27(a) argument advanced on Mr Archer’s behalf was that the circumstances here were analogous to Hatzimanolis and ANI Corporation Limited (1992) 173 CLR 473, and that the principles enunciated in that case should be applied…
62. The Tribunal finds however, that the facts here are markedly different from those in Hatzimanolis. In that case the worker was required to be in a remote area and live in accommodation provided by the employer. It was a working trip to a remote locality of limited duration. In our view it would not be reasonable to consider the whole of Mr Archer’s period of duty at Enoggera as one overall period of work. His posting was to last for several years. His work really involved a series of discrete periods of work rather than one overall period of work.
63. The facts here can also be distinguished from those in Comcare v Mather (1995) 56 FCR 456. That was a case where a soldier was stationed temporarily at a camp during a large scale military exercise. The soldier had been drinking during a period of authorised leave. Attendance at hotels whilst on leave was within the contemplation of the army. The Tribunal, applying Hatzmanolis, found that the soldier was in the course of his employment. Kiefel J agreed and dismissed the appeal.
64. We conclude that the fall and injuries occurred in an interval between discrete periods of work and not during an overall period of work as in Hatzimanolis.”
It is also instructive to consider the facts in Archer, as they are of relevance in the disposition of this matter.
Mr Archer was a serving member of the Australian Army. On 8 October 2004 he was posted to the Australian Army Base at Enoggera. Whilst stationed at Enoggera, Mr Archer lived on the base at the Gallipoli Barracks in an accommodation block known as H.21.
On the evening of Saturday 5 March 2005, Mr Archer and two Army companions purchased takeaway food and alcohol and returned to H.21 to eat the food and consume the alcohol purchased. At various times during that night and into the following morning, Mr Archer sat on the railing of the third floor balcony. At approximately 1:20 am on 6 March 2005 Mr Archer fell from the balcony and suffered severe injuries and was subsequently medically discharged. At the time of the accident he was 20 years of age.
The relevant factors in Archer were as follows:
Mr Archer’s normal hours of duty were Monday to Friday;
It was common practice for those living in the Barracks to sit on the rails of the balcony of their units;
The units were not air-conditioned, and it was a hot evening;
Mr Archer had been advised by his troop sergeant to live in the Barracks for the first twelve months of his posting to Enoggera;
There was a discretion to live outside Barracks, but he had made no formal application to do so;
The Barracks were his residence and workplace;
Mr Archer was subject to military discipline at the time of the social gathering;
It was a reality of life at the Enoggera Army Base that army personnel would frequently socialise together to relax after work and on weekends and that it was usual for those present to consume alcoholic drinks; and
Drinking alcohol was not only permitted but encouraged at the Enoggera base.
The Tribunal concluded ([52]/151) that a culture of socialising together and drinking alcohol, including gatherings on the open balconies of the accommodation units, did exist and was incidental to army life at the Enoggera Barracks at the time of Mr Archer’s accident.
After addressing s 27(a), the Tribunal considered s 27(b), and observed (at [69]/154) that the scope of defence service extends beyond activities required to be done and includes activities expected or authorised. The Tribunal went on and found (at [77]/156):
“In the tribunal’s view the facts dispel the suggestion that Mr Archer was involved in a private activity unconnected to his service in the army. The following facts together establish a strong connecting link between his injuries and his defence service:
·The injury occurred at the Enoggera army base.
·There was a drinking culture among army personnel at the base with alcohol officially permitted to be stored and consumed in the accommodation areas.
·At the time of his fall Mr Archer was, in keeping with that culture, attending a social gathering of colleagues at the base and there consuming alcohol.
·All of those present at the gathering were army personnel stationed at the base and were from his army unit.
·He fell from the railing of the balcony of his accommodation unit on the third floor of H. 21 at the base.
·There was no air-conditioning or fans within the accommodation unit.
·The balcony with a large open space above the railing was a common area for use by the occupants of the two units on the third floor.
·At the time of his injuries Mr Archer was subject to military discipline including garrison standing orders and routine orders.
·The incident was investigated by the Military Police Special Investigation Branch…”
The Tribunal also found that the culture of socialising and drinking, together with the design of the accommodation units were causative factors which contributed to Mr Archer’s fall and consequent injuries. It followed, therefore, that Mr Archer’s injuries were “attributable to” his defence service within s 27(b) of the Act.
The Tribunal, further found (at [96]/159) that the causal factors that linked Mr Archer’s defence service to his injuries in relation of s 27(b) were also sufficient to satisfy s 27(c)(i) and (ii) of the Act. In short, Mr Archer would not have fallen from the balcony and suffered injuries but for him having rendered defence service.
Bucknall and Military Rehabilitation and Compensation Commission
The Respondent (Exhibit 13 para 32) drew the Tribunal’s attention to Bucknall and Military Rehabilitation and Compensation Commission [2007] AATA 2014 (‘Bucknall’).
It should be noted at the outset that Bucknall involved a consideration of the Safety, Rehabilitation and Compensation Act 1988. Accordingly, the statutory regime is different to this matter. Nonetheless the case deals with the three tests of relevance, namely injury arising in the course of employment, arising out of employment and but for employment.
Ms Bucknall was a Staff Cadet at Duntroon, and as a requirement of her service she resided at the College. During the evening of 13 November 1992, she was on authorised “local leave” with other cadets and attended at a tavern in Canberra. Under the rules then governing Ms Bucknall, she was required to sign her company leave book before leaving the College grounds, remain within a 150 km radius of the College and return by midnight. Failure to comply with the terms of leave could have resulted in disciplinary action.
Ms Bucknall determined to return to College in accordance with those rules and was offered a lift back by a fellow Cadet who was known to her. On the way back to the College, Ms Bucknall was sexually assaulted by the other Cadet and she suffered a depressive disorder.
It was not contested that strong emphasis was placed on peer acceptance at the College, and Cadets were expected by their superiors to socialise with their peers both inside and outside College and to develop a rapport with them.
In finding that that the injury suffered by Ms Bucknall arose out of her employment within the meaning of s 6(1)(a) of the Safety, Rehabilitation and Compensation Act 1988, the Tribunal said:
“31. Considering the circumstances in which Ms Bucknall was assaulted and the role of her employer in encouraging socialisation that we have referred to previously we find that the injury suffered by her ‘arose out of’ her employment. The causative factors which are not merely temporal are the encouragement of the employer for the socialisation to take place, the fact that the assault was occasioned by a fellow employee who had requested Ms Bucknall accompany him, and the assault occurring as Ms Bucknall was returning to the College from a social gathering of her peers.”
The Tribunal also found that the mental injury sustained by Ms Bucknall was as a result of an act of violence that would not have occurred but for her employment:
“36. For the reasons already stated and on the basis of the facts set out we have found that there was a causal nexus between Ms Bucknall’s employment and the assault upon her which caused the injury. In our view this same causal nexus satisfies the requirement of s 6(1)(a). In this case the injury arose from an assault by fellow employee in circumstances of socialisation by Ms Bucknall with her peers as encouraged by her employer. This socialising was encouraged as a function of her training and thus her employment…
38. It was argued on behalf of Comcare that the decision in Roberts indicated that the location of the assault (in that case the College grounds) was important and was a relevant difference in Ms Bucknall’s case. Whilst the location of the assault was a relevant factor in the earlier decision, nothing was said to support the proposition that the location was a deciding factor. On the contrary it is just one factor for consideration in deciding whether the necessary nexus has been established.”
Military Rehabilitation and Compensation Commission v Roberts
The final decision referred to in submissions is Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1; 93 ALD 554 (‘Roberts’). As with Bucknall, this case also dealt with liability under the Safety, Rehabilitation and Compensation Act 1988.
Ms Roberts was a member of the RAAF who was living at RAAF Fairbairn in rented accommodation. She was not required to live on base and was free to exercise her discretion as to her living arrangements. On 13 May 2000 she was rostered “off duty” and that evening attended an informal social function at the Airman’s Club, RAAF Fairbairn. The people attending wore civilian clothes and brought their own alcohol. At 11pm Ms Roberts retired to bed and at 2.30am whilst in her room, she was sexually assaulted by an intruder. The intruder was one of her colleagues who resided in the same accommodation block. The intruder was charged with military offences but not convicted. Ms Roberts suffered from a psychiatric condition and was medically discharged from the RAAF.
His Honour Justice Madgwick held that Ms Robert’s injury arose out of her employment by virtue of the “but for” test. However, his Honour also dealt with the proper interpretation of the expression “arising out of”, and his obiter comments have relevance to the proper application of s 27(b) of the Act – ([55], [57]/564):
“I am, however, inclined, on a tentative basis, to think that the requirement asserted by the applicant that the employee must show some elevation of the risk of the injury sustained, which elevation must result from the employment, is mistaken and that it is enough that there can be shown, as a matter of common sense, some substantial link or connection with the employment which is causal, and not merely temporal…
[57] It must be acknowledged that, on the scant known facts, this case would, if it fits at all within the meaning of ‘arising out of’, without its s 6(1)(a) extension, sit at the very margins of the concept.”
His Honour found it unnecessary to deal at length with the “arising out of” submission because liability could be found under the “but for” test. Madgwick J observed that the relevant statute was “beneficial to employees” and the enactment of the “but for” test must be construed to give “the fullest relief which the fair meaning of its language will allow” – [60]/565.
His Honour then made the following observations ([62]-[64]/565-566):
“[62] …it is clear that s 6(1)(a) was intended to have a generous application where a Commonwealth employee is injured by a violent act. That is shown, apart from the very use of the wide test notoriously inherent in the expression ‘but for’, by the apparently exhaustive inclusion of the ways of conceiving what might be the original and crucial, employment-related circumstance: the ‘employee’s employment’, his or her performance of the ‘duties’, or the ‘functions’ of the employment. It remains true that the concept of ‘but for’ implies, indeed is synonymous with, some kind of causal connection.
[63] Thus understood, there is neither either absurd or anything that can confidently be called anomalous about the result reached. It is to be inferred that, at least to some extent, it was in the interests of both the respondent and the military that she reside at the base provided by the latter. The RAAF provided quarters there for young service men and women in close proximity. The air force provided living quarters for a female officer which could be entered, according to the filed material, by an intruder simply removing a fly screen. It is certainly true that, ‘but for’ these and other specific matters mentioned by the tribunal, Ms Roberts would not have been injured. Some degree of causal connection exists. Moreover, I am unable to think that parliament could not have intended that in such circumstances a female employee, sexually assaulted by a fellow employee, should be regarded as falling within the protection of s 6(1)(a). Parliament has clearly used language that could encompass that result. There is an evident generosity of approach towards employees injured by violent acts.
[64] If, which I doubt, it is necessary to distinguish the example given by the applicant of Ms Robert’s circumstances, and an injury occurring then and there in the course of a private dispute, it is not, in my opinion, difficult to do so. The employer has no interest in an injured employee engaging in a private dispute. The employer who subsidises convenient accommodation does, however, have an interest in the employee ordinarily utilising such accommodation and in being securely and comfortably accommodated there, from the enjoyment of which accommodation the employee will be suitably re-invigorated, to perform his or her actual duties. All Ms Roberts was doing was sleeping and enjoying the benefits of the accommodation which the employee (sic) had made it financially advantageous for her to use. She was doing what her employer envisaged and expected she would do. She was in no sense behaving in such a way that it would be anomalous to say that ensuing violence would not have occurred ‘but for’ the employment.”
Some caution, however, must be exercised when applying Roberts. His Honour, when referring to legislative intent, was concerned with the specific wording of s 6(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 which makes specific reference to “an act of violence”. Those words do not appear in s 27 of the Act applicable in this case. Whilst His Honour’s general analysis, therefore, is of great assistance, the Tribunal could potentially fall into error, if it followed every aspect of his analysis in an unthinking and dogmatic manner.
Paragraph 27(b)
The Applicant submits (Exhibit 12 para 18) that:
he was expected, for the purposes of his employment, to spend time with other platoon members outside of work hours and to build a rapport with those other members;
he was not just expected, but was required to live on the base at the relevant time;
he was expected to use his living quarters to store his personal belongings and to come-and-go from his living quarters within the relevant hours of curfew;
at the time of the assault, the Applicant was doing exactly what was expected of him in using his living quarters; and
at the time of the assault, the Applicant was required to comply with military rules and regulations, and was subject to military discipline (as was the assailant).
The Applicant also submits (Exhibit 12 para 19) that the above factors were not just the setting for the assault, but a cause for the assault. It is submitted that the Applicant was:
using the living quarters he was required to use;
conducting himself in accordance with military rules that were applicable; and
was in close proximity with his work colleagues, including his assailant, as was expected;
and those factors were at least a contributing cause of the assault.
The Respondent contests that the assault arose out of, or was attributable to, any defence service rendered by the Applicant, and submitted that – Exhibit 8 para 48.2.4 – 48.2.7:
the Applicant was not rendering any defence service at the relevant time;
the place where the assault occurred, and the fact that the Applicant and the assailant were fellow members, are merely contextual matters – not ones of causation or attribution;
the assailant’s apparent motives in committing the assault are not relevant to the question of whether the assault is, and do not make it, related to the Applicant’s defence service; and
it was the voluntary actions of the assailant, and not any aspect of the Applicant’s defence service, that contributed to the occurrence of the assault.

In later submissions, the Respondent made the following additional contention – Exhibit 13 para 34 (emphasis in original):
“In this case the socialisation that was influential in Archer and Bucknall, and which was held to provide causative, and not just contextual, links between the defence service and the injury, is absent. Unlike in Archer, although the assault took place on the base, the built environment of the base was irrelevant to the assault. Nor was the Applicant engaging in any activity that was ‘encouraged’ by his employer. Whilst the Applicant was permitted to be on the base at the time, he was not required to be there and did not intend to remain there. The base was, in a very real sense, simply the setting in which the assault (opportunistically) occurred.”
As previously noted, the expressions “arose out of” or “was attributable to” are to be given a broad and generous meaning – Roncevich v Repatriation Commission (2005) 222 CLR 115 at [27]/126.
There are a number of key factors that weigh in favour of the Applicant.
First, both the Applicant and his assailant were enlisted servicemen who were required to live, at least from Monday to Friday, in the camp barracks. Unlike Roberts, the Applicant had no discretion as to where he resided. The importance of living in barracks, and the consequences that may flow therefrom, were specifically alluded to by Cowdroy J in Coward v Military Compensation and Rehabilitation Service [2006] FCA 840 where his Honour said (at [30]:
“Living in barracks is, in my opinion, one of the circumstances of employment in the military, even where soldiers are not required to live there. Barracks are specifically designed to provide accommodation for soldiers. This is not to say that any activity undertaken at barracks which caused an injury would necessarily have been contributed to by employment. However, I consider that an injury or disease which arose as a consequence of living at barracks would be an injury which arises out of employment in the military.
Second, the assault took place in the barracks, and not in a civilian setting.
Third, at the time of the assault both the Applicant and his assailant were subject to military discipline. This is an important factor as highlighted by both the High Court in Roncevich (at [26]/126) and Madgwick J in Roberts (at [58]/565).
Fourth, the assailant was in fact investigated by the Military Police, charged with a military offence, tried in a military court and sentenced to a period of military detention. One key question posed by Madgwick J in Roberts was whether (at [58]/564): “the matter solely investigated in a military context without calling in the civilian police?”. While that question remained unanswered in Roberts, a positive response was evinced in this matter.
Fifth, there is no evidence that the Applicant in any way contributed to the assault, other than in the misconceived thoughts of the assailant. In this regard, this matter can be contrasted to Schmid v Comcare [2003] FCA 1057. In that matter the serviceman, whilst not on duty, was drinking at a hotel in Townsville where he made disparaging remarks about the girlfriend of a motorcycle gang member. A drunken brawl ensued and the applicant was injured. Weinberg J made the following observations (at [99]):
“It is one thing to accept that a person is not precluded from receiving compensation merely because he was injured as a result of his own misconduct. It is altogether another to accept that compensation is payable in circumstances where that misconduct occurs at a place, and time, that is totally removed from the normal incidents of the applicant’s employment. An injury is sustained by the applicant as a result of his involvement in a drunken brawl with members of a motorcyclegang, in a hotel, does not strike me as having arisen out of, or in the course of, his employment as a soldier. I note that there was nothing to suggest, as in Hatzimanolis, that the army expressly or impliedly, induced or encouraged the applicant to spend his leisure time drinking in a hotel, still less that it induced or encouraged him to engage in the type of conduct that resulted in him being beaten up.”
Sixth, the assault was triggered by the assailant’s belief that the Applicant had made advances towards his girlfriend (who was also enlisted, living in the Barracks and in the same holding section) and exacerbated because the Applicant was enlisted in the RAAF. In short, all the ingredients for the occasioning of the assault related to service issues and camp life, and were triggered by personal jealousy.
The fact that an enlisted person is injured or contracts a service disease whilst in a camp is not determinative of liability. As the Respondent correctly contends, and as the High Court emphasised in Roncevich (at [23]/125), the connection must be a causal and not merely a temporal one. If camp life merely provided the setting in which the event occurred, s 27(b) has not been satisfied – Repatriation Commission v Tuite (1993) 39 FCR 540 at 541 per Davies J.
Here, “camp life” was central to the assault and the consequent psychiatric disorder, and not merely the setting in which the incident occurred. Whilst there is no agreement on whether the socialising that provided the background to the assault was “encouraged” by the employer, it is clear that by requiring the Applicant to live and interact in barracks on a daily basis, it was inevitable that bonds of friendship and familiarity would develop. Further, by requiring that those persons live in the barracks at least five, and up to seven, days each week, the employer necessarily created a situation where there had to be interaction and regular personal contact.
If the Applicant had not been required to live in the barracks, not only would he have not known the assailant, but he would not have returned to the barracks on the day in question to collect clothes. In short, the evidence presented strongly suggests that the assault perpetrated on the Applicant and camp life were inextricably intertwined.
I therefore find that the Applicant’s consequent adjustment disorder arose out of, or was attributable to, defence service rendered by him.
Paragraph 27(c)
Having found in favour of the Applicant under s 27(b) it is not necessary to deal with s 27(c). However, in the event that I am in error in my findings above, I will deal with paragraph (c).
The Applicant contends (Exhibit 12 para 22), that the factors he previously relied upon for satisfying s27 (b) (Exhibit 12 para 18) further demonstrate that the ‘but for’ test propounded in s 27(c) is satisfied. The Applicant’s key submission is as follows (para 24):
“The Applicant submits that the same conclusion is appropriate here. There clearly was a benefit to both the Applicant and the Defence Force from him living on base. In being required to live on base, he was being required to live in close proximity with other young service men and women. He was being required (or at least expected) to interact with them both professionally and socially. But for these matters he would not have been injured.”
The Respondent contends (Exhibit 9 para 48.3) that the mere fact:
the Applicant and the assailant only knew each other because of their defence service; and
as a consequence of his defence service, the Applicant usually lived in close proximity to other members of his platoon (including the assailant); and
the assailant knew where to find the Applicant because of the Applicant’s defence service; and
the Applicant happened to be on the base when the assault occurred; and
the assailant’s apparent motives in committing the assault included the Applicant’s membership of the RAAF,
does not mean that the assault would not have occurred but for – either, the Applicant having rendered defence service while a member, or changes in the Applicant’s environment consequent upon his having rendered defence service while a member pursuant to s 27(c) of the Act because:
the matters outlined in (a) to (d) are merely contextual rather than causative; they were no more than antecedent conditions which were preliminary to, but in no way causative of, the assault; and
the assailant’s apparent motives in committing the assault are not relevant to the question whether it was related to the Applicant’s defence service; and
it was the voluntary actions of the assailant, and not any aspects of the Applicant’s defence service, that contributed to the occurrence of the assault.
In addition, the Respondent makes the following submission – Exhibit 13 para 40 (emphasis in original):
“In this case, just as Archer and Bucknall relied upon the same causal factors to satisfy s 27(c) as were held to satisfy s 27(b), the Respondent relies on the factors set out at paragraph 34 to distinguish the facts of this case from those decisions. As for Roberts, two features of this case are notable: first, the nature of the assault falls squarely within the category of ‘private dispute’ carved out by Madgwick J; second, the Applicant’s momentary attendance at the base to collect personal belongings cannot be characterised as doing what his employer ‘envisaged and expected he would do’ save only that his actions were permissible Unlike the female officer in Roberts, the Applicant was not utilising his accommodation at all, let alone in a way related to performance of his duties.”
It flows from the above submission of the Respondent, that the same causal factors sufficient to found liability under s 27(b) can also found liability under s 27(c). As outlined in the above quote from the Respondent’s submission, this was the result that ensued in both Archer (at [96]/159) and Bucknall (at [36]), and, so too in this matter. The Tribunal agrees with the Applicant’s contention that the Applicant only became acquainted with his assailant because of his defence service, and only had close dealings with him because they lived in the same barracks and would not have been assaulted but for the fact that he had to return to the barracks to collect his belongings.
Further, it is appropriate to specifically address the Respondent’s contentions outlined in paragraph 150.
First, the Respondent draws attention to the example of a private dispute as outlined by Madgwick J in Roberts. It is certainly the case, as his Honour pointed out, that an employer has no interest in an injured employee engaging in a private dispute. This proposition is illustrated by the decision in Schmid. However, it is not correct to categorise the facts of this case as a “private dispute”. In this matter, as in Roberts, the Applicant was subjected to a violent and unprovoked criminal assault whilst at camp by another enlisted service person. It would be incorrect to view the events of June 2008 as anything other than a serious crime perpetrated on an enlisted person by an enlisted colleague, without good cause, without provocation, and for reasons not unconnected with service. Indeed, in some respects the factual matrix of Roberts and this matter are not too dissimilar.
Second, if not for the fact that the Applicant had to return to the barracks to collect clothes and belongings he would not have been accosted and assaulted. The Applicant’s action in returning to base to refresh his clothing is what his employer would have envisaged and expected. Although “off duty” the Applicant was still an enlisted serviceman and would be expected to maintain at all times proper standards of behaviour and decorum.
Third, the Respondent seeks to draw a distinction between the female officer in Roberts “utilising” the accommodation and the actions of the Applicant in collecting his clothes and belongings. A person can utilise their accommodation in a number of ways. Certainly, sleeping overnight is a primary example, but so too is the storing and collection of clothes and belongings. If not for the fact that the Applicant was required to reside in the barracks, he would not have returned to collect his clothes and belongings.
The Tribunal therefore finds that the causal factors linking the Applicant’s defence service to the assault and consequent service disease for the purposes of s 27(b) are, in this matter, also sufficient to satisfy s 27(c)(iii).
DECISION
The reviewable decision of the Commission made on 14 November 2013 is set aside.
In substitution for the Commission’s decision, it is determined that Mr Haughey suffered from a service disease, namely adjustment disorder, with an onset date of on or about 28 June 2008 and the Commission must accept liability for such disease pursuant to s 23 of the Act.
The matter is remitted to the Commission for appropriate action.
The parties have liberty to apply within 30 days in relation to costs.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

....................[Sgd]....................................................
Associate
Dated: 23 April 2018

Date of hearing: 5 February 2018

Counsel for the Applicant: Mr Matt Black

Advocate for the Applicant: Ms Peta Miller

Solicitors for the Applicant: Maurice Blackburn Lawyers

Counsel for the Respondent: Ms Nitra Kidson

Advocate for the Respondent: Mr Joshua Sproule

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	5 February 2018
Counsel for the Applicant:	Mr Matt Black
Advocate for the Applicant:	Ms Peta Miller
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Counsel for the Respondent:	Ms Nitra Kidson
Advocate for the Respondent:	Mr Joshua Sproule
Solicitors for the Respondent:	Australian Government Solicitor