Ian Gordon and Repatriation Commission
[2014] AATA 849
•12 November 2014
[2014] AATA 849
Division Veterans' Appeals Division File Number
2013/2965
Re
Ian Gordon
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 12 November 2014 Place Brisbane The decision under review is set aside. The Tribunal remits the matter to the respondent with the direction that the application be assessed on the basis that the motor vehicle accident on 28 May 1978 occurred while the applicant was “on a journey…away from a place having ceased to perform duty” within the meaning of s 70(5)(b) of the Veterans’ Entitlements Act 1986 (Cth).
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – Application for disability pension – Applicant seriously injured in motor vehicle accident while travelling away from duty – No direct evidence establishing travel authorised – Interpretation of ‘journey’ provisions – No wilful act – No serious breach of discipline – Applicant not excluded from entitlement to pension.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 70(5); 70(8); 70(9)
CASES
Alcock and Repatriation Commission [1992] AATA 686
REASONS FOR DECISION
Senior Member Bernard J McCabe
12 November 2014
This case raises an important question over the correct interpretation of the ‘journey’ provisions in s 70 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
Mr Ian Gordon was a private soldier in the Australian Regular Army. He was involved in a serious car accident in 1978 shortly after he commenced leave from his unit. He was on his way from his posting at Enoggera to Marcoola Beach on the Sunshine Coast to stay with relatives when the accident occurred. He now says the accident (and the serious health conditions that flow from it) are connected to his defence service by reason of
s 70(5)(b) of the Act. That provision says an injury or disease may be taken to be defence-caused if:
…the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty[.]
The veteran says (a) he was on defence service and (b) he was on a journey away from a place upon having ceased to perform duty when he had his accident, so the consequences of the accident give rise to an entitlement to a disability pension under the Act.
The Commission accepts Mr Gordon was seriously injured in the car accident in 1978. The Commission does not dispute the applicant had just ceased to perform duty at Enoggera barracks and was en route from Enoggera barracks to the home of his aunt and uncle at Marcoola Beach when the accident occurred. The Commission also accepts
Mr Gordon was absent from the barracks on approved leave. The dispute in this case arises because the Commission says Mr Gordon’s accident occurred (and he was bound for a destination) more than 100 kilometres from his place of work. It says the
Standing Orders of Mr Gordon’s unit provided a soldier must (a) live within
30 kilometres of the base unless given permission to live elsewhere and (b) must not travel more than 100 kilometres from the base on weekends or while on leave without permission. The Commission says there is no reliable evidence that would enable me to be reasonably satisfied Mr Gordon was authorised to be on the road to the Sunshine Coast, and that his accident was therefore not covered by the journey provisions.
I will deal firstly with the question of whether I am satisfied the applicant was authorised to be where the accident occurred. I will then turn to the question of whether the journey provisions apply or are excluded.
WHAT HAPPENED
Mr Gordon enlisted on 11 January 1978. He was training to be a medic. After completing his basic training at Kapooka, he attended specialist training in Victoria before transferring to Brisbane. He did a course at the hospital located at Enoggera barracks for several weeks before marching in to 11 Field Ambulance unit on Thursday,
25 May 1978. The new unit was also located at Enoggera.As luck would have it, another soldier who had been rostered to work on the weekend of 27-28 May 1978 had fallen ill. Mr Gordon recalled in his evidence that the commanding officer told him he would be required to work. He did his duty. At some point over the weekend, Mr Gordon recalled the officer telling him he could take leave from the time he went off duty on Sunday evening until noon on the following Wednesday. Mr Gordon recalled the officer signing a slip that authorised the leave. The officer tore the slip from a booklet containing carbon copies. Mr Gordon remembers nothing about the form other than the fact it authorised the leave for a period of days. He did not retain the slip and the records held by the Army were destroyed long ago.
On Sunday evening, upon completion of his duties, Mr Gordon got into his car and departed Enoggera barracks. He set off for the Sunshine Coast. He said he stopped at a service station along the way and rang his mother for her birthday. Shortly before he reached Marcoola Beach, he had a terrible accident. He was thrown through the windscreen and suffered serious head trauma. He was transported from the scene to Nambour hospital. He never fully recovered from his injuries. He has developed other health conditions as well. His career in the Army was effectively over, and he was medically discharged on 25 August 1978.
Mr Gordon’s injuries have had a serious impact on his recall. He was unable to remember much detail of the events leading up to the accident. When he gave evidence at the hearing, he was confused and gave inconsistent accounts of what occurred.
He changed his story about the time at which he sought the leave after prompting by his advocate. I do not doubt Mr Gordon’s honesty, but it is difficult to know what to make of his evidence. I am cautious about accepting evidence in his statement for the same reasons.As it happens, Mr Gordon did not offer any evidence on the main issue before me in these proceedings: where was he authorised to go while he was on leave?
The Commission accepts Mr Gordon was given leave on the Sunday night – most likely ‘stand down’ leave, which was effectively a grant of ‘days in lieu’ after he worked over the weekend. But the real issue for present purposes is whether he was entitled to travel as far afield as the Sunshine Coast whilst he was on leave.Mr Stanley, the former Regimental Sergeant Major of the unit, said Mr Gordon would have been provided with a copy of the Standing Orders of the unit upon his arrival.
He would have been told about the procedures for obtaining leave, and he would have read the requirement in the Standing Orders that he obtain permission before moving off the base. (Recent recruits at the time were expected to live in quarters at the barracks for a period.) He would also have been made aware of the requirement to obtain permission before he travelled more than 100 kilometres from the base. While I was not shown a copy of the Standing Orders setting out this requirement, there was no dispute that is what the orders said.Mr Stanley said an applicant for leave – even ‘stand down’ leave – would ordinarily fill out a form requesting the leave which would be endorsed by his or her supervisors and signed by the officer in command or by the platoon commander. Records of ‘stand down’ leave would have been retained locally and noted in the unit Roll Book. Those records were destroyed in the ordinary course. A period of ‘stand down’ leave would not have been noted in the applicant’s personnel file or other central records because it did not count towards annual leave entitlements. Mr Stanley added any request for travel outside the local area (that is, more than 100 kilometres from the base) would require specific approval. None of these records remain in existence.
It follows there is no direct evidence to confirm Mr Gordon was authorised to travel outside the local area. Of course, gaps in the official records – gaps that are unsurprising after all these years – are not to be taken as evidence that the event did not occur:
s 119 of the Act. But I still require evidence that provides a basis for being satisfied the authorisation was given. That is the challenge in this case.Mr O’Neill, for the applicant, said I could infer Mr Gordon was not acting contrary to authority when he travelled to the Sunshine Coast because he is unlikely to have done so without permission. That does not necessarily follow, of course. We do not know if
Mr Gordon knew how far away his relatives lived: he was new to the base, after all, and it is unclear whether he was aware of the precise distance between Enoggera and Marcoola Beach. Moreover I do not know enough about his background to form a view of whether or not he was inclined to follow the Standing Orders in the ordinary course.Mr O’Neill also argued I could infer Mr Gordon was travelling to an authorised destination because he would presumably have been charged with the offence of contravening Standing Orders if he had not been travelling with appropriate leave.
Mr Stanley and Brigadier Yacoub gave evidence that every unit (including 11 Field Ambulance) would have enforced the travel restrictions set out in Standing Orders. Brigadier Yacoub, who was called by the applicant, confirmed a soldier who was found to have travelled outside the local area on leave could expect to be subject to some sort of disciplinary action. But he added the form that action might take varied depending on the unit and the circumstances and the attitude of the local hierarchy. While some contraventions of the Standing Orders might result in formal charges that would be recorded in a soldier’s file, others might attract less formal sanctions that would only be recorded locally (and then only temporarily), or go unrecorded. That evidence suggests the absence of any record of formal charges does not provide a sound basis for inferring the applicant was authorised to travel outside the local area. The case for drawing an inference is even weaker when one accepts the applicant was so seriously injured in the accident, and that he left the Army not long after it occurred. Even assuming the authorities were aware of all the details of the location of the accident, they may have thought better of taking any action given the applicant’s pitiable condition.I note Mr Gordon suggested in his evidence that he sought the ‘stand down’ leave so he could investigate housing options off-base. He said his accommodation at Enoggera barracks was unsatisfactory because armoured vehicles rumbled past his quarters at all hours of the night. If that was his motivation in seeking the leave, it is less likely he would have sought authorisation to travel to the Sunshine Coast as he would not have been looking for accommodation there. But I have already indicated I have difficulty knowing what to make of Mr Gordon’s evidence given the obvious challenges he experienced in coherently recalling what occurred all those years ago. I am reluctant to give this evidence much weight.
I have no direct evidence to suggest the applicant was authorised to travel to Marcoola Beach. There are no records, and he does not remember. The indirect evidence which might provide the basis for drawing an inference about his authority is weak. I do not think I can be reasonably satisfied Mr Gordon held the permission he required to travel to the Sunshine Coast on the day he had the car accident in 1978.
DOES AN ABSENCE OF AUTHORITY MATTER?
Having concluded Mr Gordon was not authorised to travel outside the local area, it remains for me to consider whether that want of authority prevents him from relying on the journey provisions in s 70(5)(b).
It must be said at the outset that the text of s 70(5)(b) does not say anything on its face about the nature of the destination to which the off-duty soldier travels. The sub-section does not say the destination must be his home, and there is no suggestion on the face of the legislation that the destination must be authorised by anyone.
The sub-section does include a qualification, however. It is expressed to be subject to sub-section 70(8). That provision sets out a number of exclusionary factors. None of them is relevant here: there is no evidence there was any delay in the commencement of the journey in question, or that the route Mr Gordon took was indirect, or that the journey was substantially interrupted. It follows sub-section (8) does not operate to exclude
Mr Gordon’s injury. That means the Tribunal’s decision in Alcock and Repatriation Commission [1992] AATA 686 (cited to me by Mr Crowe on behalf of the Commission) is of no assistance. Which brings me back to the text of sub-section 70(5)(b).
Is there any basis for implying a limit into the general words of the sub-section which refer to a “journey...away from a place upon having ceased to perform duty”? On one view, there is no basis for implying a limitation when parliament has already turned its mind to specific exceptions that are included in sub-section (8), and which do not apply in this situation.
An alternative (although perhaps complementary) approach is to focus on the expressions “defence-caused” and “defence service” in s 70 and ask whether conduct in contravention of standing orders would automatically and inevitably be
non-compensable. That may be a legitimate approach given s 70(5)(b) merely seeks to deem particular journeys to be part of defence service (and accidents occurring in the course of those journey to be defence-caused) without apparently intending to transform or expand the underlying concepts. The answer to the question surely lies in s 70(9)(a) which says the Commonwealth is not liable for an injury that:
i) resulted from the member’s serious default or wilful act; or
ii) arose from a serious breach of discipline committed by the member or from an occurrence that happened while the member was committing a serious breach of discipline….
This issue was not addressed as the hearing, so I asked the parties to make written submissions. Both sides did so. The respondent noted that “serious default” and “wilful act” are separate expressions. The Commission did not seriously press an argument to the effect that the applicant’s default was serious. I agree it was not: he was travelling to a place just outside the limits of the local area defined in the Standing Orders. But the Commission said there was a real issue over whether Mr Gordon’s conduct amounted to a “wilful act”. As it happens, I am not satisfied the evidence establishes there was a wilful act within the meaning of the section. I have no basis for concluding he wilfully breached the Standing Orders in the sense that he intentionally disregarded them: it is entirely conceivable, for example, that he was not aware of the distance between the base and his relatives’ home given he was new to Enoggera. (At the hearing, I heard evidence to the effect the Army has clarified the limits which still apply to soldiers on leave: the Standing Orders now specify soldiers at Enoggera may travel to the Gold Coast or the Sunshine Coast on leave. The Army does not rely to the same extent on distance as it did, for obvious reasons.) In the absence of reliable evidence of what he knew, or should have known, it is hard at this distance to conclude he wilfully disobeyed Standing Orders. I am also satisfied there was no serious breach of discipline.
A proper reading of s 70(5)(b) does not exclude the applicant in this case from coverage. I do not think the fact he was, on this occasion, travelling from his place of duty to a place he was not formally authorised to visit prevents him from being entitled to a disability pension.
CONCLUSION
I set aside the decision to reject Mr Gordon’s application for a disability pension and remit the matter to the Commission with the direction that his application be assessed on the basis that the motor vehicle accident on 28 May 1978 occurred while the applicant was “on a journey…away from a place having ceased to perform duty” within the meaning of s 70(5)(b) of the Veterans’ Entitlements Act 1986 (Cth).
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 12 November 2014
Date of hearing 19 September 2014 Date final submissions received 1 October 2014 Advocate for the Applicant Mr B O'Neill Advocate for the Respondent Mr A Crowe
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