Lowth and Comcare

CATCHWORDS – COMPENSATION – whether injury arose out of or in the course of employment – whether participation in motorcycle racing in civilian competition is part of performance of applicant's duties as a member of the RAAF – whether approval to participate authorised by Defence Instruction (General) PERS 14-2 – decision set aside.

Defence Act 1903 – Ss 3, 8, 9A
Defence Discipline Act – S 29
Safety, Rehabilitation and Compensation Act 1988 – Ss 1, 4, 5, 14,

DECISION AND REASONS FOR DECISION [2000] AATA 494

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1998/893
GENERAL ADMINISTRATIVE DIVISION      )

Re BRUCE E LOWTH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 21 June, 2000

Place Brisbane

Decision The Tribunal:

1.sets aside the decision of the respondent dated 6 August, 1998; and
2.substitutes a decision that the applicant's disruption of the acromioclavicular joint of his left shoulder is an injury within the meaning of s. 4(1) of the Safety, Rehabilitation and Compensation Act 1988.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 11 September, 1998, the applicant, Sergeant Bruce Eugene Lowth, applied for review of a reviewable decision of the respondent, Comcare, dated 6 August, 1998. The reviewable decision affirmed an earlier decision dated 10 July, 1998 in which Comcare had ceased to accept liability for Sergeant Lowth's complete disruption of the acromioclavicular joint of his left shoulder on the basis that it did not arise out of, or in the course of, his Commonwealth employment. Sergeant Lowth, a member of the Royal Australian Air Force ("RAAF"), had incurred the injury while participating in a civilian motorcycle competition.

The application raised two preliminary issues. The first was whether the respondent had any discretion to come to a decision other than that the respondent was liable to pay Sergeant Lowth compensation. The second was whether Comcare was estopped from denying that Sergeant Lowth's injury arose out of or in the course of his employment because of the contents of the Australian Defence Force Policy on Sport ("ADF Policy on Sport") and three pamphlets produced by the Military Compensation and Rehabilitation Section of the Department of Defence ("MCRS") in 1994, 1996 and 1997.

In relation to those two issues, I decided that Comcare had a discretion to come to a decision other than that it was liable for compensation to the applicant and that it was not estopped from denying that the applicant's injury arose out of or in the course of his Commonwealth employment. The matter was scheduled for further hearing during a subsequent circuit to North Queensland. Sergeant Lowth appealed to the Federal Court seeking a declaration that the respondent was bound by a decision made under the Defence Act 1901 or an Instruction made under that Act deeming Sergeant Lowth to be on duty at the time he was injured. On 29 November, 1999 the Federal Court dismissed that application and remitted the matter back to the Tribunal for determination.

At the resumed hearing, Mr Pope again represented Sergeant Lowth and Mr Watson again represented Comcare. The further documents admitted in evidence on behalf of Sergeant Lowth were statements made by Wing Commander Charles Crocombe and Major Anthony Borg and a note of a conversation between Mr Askin, a partner in Messrs Nehmer McKee and Partners, Sergeant Lowth's solicitors, and Major Christopher Hadzi-Music. Those further documents admitted in evidence on behalf of Comcare were a copy of an indemnity signed by Sergeant Lowth, a statement by Captain Stephen Kenneth Prigg and a bundle of documents to which Captain Prigg referred. Oral evidence was given by Sergeant Lowth, Major Borg, Wing Commander Crocombe, Major Nicklin and Captain Prigg.

THE ISSUE

The issue in this case is whether Sergeant Lowth's left shoulder condition "arose out of, or in the course of," his employment and so is an "injury" as that word is defined in s. 4(1) of the Safety, Rehabilitation and Compensation Act 1988 ("Act").

BACKGROUND

Although I have set out the background in the reasons for my earlier decision, I will do so again for completeness. Sergeant Lowth, who is thirty seven years of age, joined the RAAF on 14 December, 1978 as an apprentice. The RAAF is part of the Australian Defence Force ("ADF"). Sergeant Lowth qualified as an Engine Fitter (Aircraft Technician) which involved him in engine and airframe maintenance. He has since worked as an aircraft engineer and has now attained the rank of Flight Sergeant.

On 24 February, 1997 when he was stationed at Toowoomba, Sergeant Lowth applied for approval to compete in a Post Classic Motorcycle Competition for motorcycles made before 1974. He would compete with the Brisbane Motorcycle Club for approximately twelve meetings each year and each meeting would be of approximately eight hours' duration. The meetings would be held at various local and State wide tracks in Queensland and New South Wales. In signing his application, Sergeant Lowth stated, among other matters, that he would not receive remuneration for the activity. He also acknowledged that, if given authorisation to participate in motorcycling, his doing so would not interfere with any normal or rostered military activity he was required to attend. (T documents, page 10)

Sergeant Lowth's section commander, Captain Borg, decided that this activity would benefit Sergeant Lowth. He signed a statement that he had advised Sergeant Lowth that:

"… A member authorised to participate in sport within the terms of DI(A) 195-2 is deemed to be on duty and may be covered under the normal provisions of the Commonwealth Employees Rehabilitation and Compensation Act 1988." (T documents, page 10)

The sports officer, Captain Hadzi-Music, recommended that approval be given and, on 25 February, 1997, the activity was approved by Sergeant Lowth's commanding officer, Wing Commander Crocombe. (T documents, pages 10 and 11).

At all relevant times, the Defence Instruction (General) PERS 14-2 ("DI(G)"), which may also be referred to as "Army Pers 195-2", set out the policy of the ADF Policy on Sport. Relevant passages read:

"INTRODUCTION
1.        Physical fitness is an essentia (sic) element in the operational efficiency of the ADF. Properly planned and executed, it is a necessary factor in maintaining the physical and mental well-being o (sic) each member. Sport encompasses physical activity and is therefore an integral part of Service training.
2.     A member authorised to participate in sport within the terms of the DI(G) is deemed to be on duty and will be covered under the normal provisions of the Commonwealth Employees Rehabilitation and Compensation Act 1988.
3.     The DI(G) covers:
a.Programmed Sport. Sport conducted during periods detailed in Unit/Base/Ship training programs.
b.Local Sport. Sport conducted in the local region in which the member is employed.
c.Interservice Sport. Sport conducted at local, regional, State or national level between teams or individuals from at least two of the Services.
d.Combined Service Sport. Sport conducted at State, national or international level and involving a team selected from two or more of the Services.

AIM

4.        The aim of this Instruction is to state ADF policy on sport.
DEFINITION
5.        For the purposes of this Instruction, the following definition applies:
'Sport is a physical activity of a competitive nature designed to stimulate physical and mental well-being by providing physical fitness and either team spirit or personal challenge.'
SPORT MANAGEMENT
Organisation
6.        The outline organisation of sports management bodies is at Annex A.
Australian Defence Force Sports Council (ADFSC)
7.The object of the ADFSC is to encourage and promote sport in the Defence Force. The ADFSC consists of a Chairman from Headquarters Australian Defence Force (HQADF) and a Colonel (E) from each Service. The Council is based at HQADF and operates in accordance with the ADFSC Charter at Annex B. Although the ADFSC formulates and promulgates policy on matters such as management procedures and the standardisation of rules of competition, it does not administer the day-to-day running of unit, inter-unit or single Service sport. The Secretary of the ADFSC may be contacted regarding sport policy matters and agenda items for ADFSC meetings.

Australian Defence Force Sports Associations
8.        ADF sports associations are responsible for the coordination and administration of all matters relating to national interservice and national combined Services sport. These associations are directly responsible to the ADFSC for the implementation of applicable sporting policy and act as advisers to the ADFSC on individual sports. A list of accredited sports associations is at Annex C.
9.        The ADFSC monitors the activities of the ADF sports associations. The ADFSC also approves their constitutions, the structure of their management committees, and assists approved associations with sporting costs. In addition, the ADFSC may undertake control and coordination tasks when sporting activities are conducted at an international level, and when appropriate, at the national level.
Interservice Sports Committees
10.      Interservice Sports Committees (ISSC) will generally exist at State and Territory level, and may be appropriate for other defined geographic areas, such as north and south Queensland, where the level of ADF presence warrants it. An ISSC is appointed by the Joint Service Local Planning Committee and should consist of two or more members from each Service. The ISSC is responsible to single Service commanders for the proper administration and conduct of Service sport in their particular area.
11.Each ISSC is responsible for the following functions within its area:
a.controlling and coordinating interservice and combined Service sports events;

b.implementing policy regarding the conditions of competitive sport between the three Services;

c. providing financial support to interservice and combined Service sports activities through submissions to welfare organisations or through accepted departmental budgeting procedures;

d. liaison between civilian sporting associations and the Services;

e.liaison with the ADFSC and ADF sports associations and the coordination of administrative aspects as delegated, including tours by visiting overseas teams;

f.conducting ISSC meetings (a copy of the minutes of which are to be forwarded to the ADFSC); and
g.maintaining a list of endorsed sports.

Single Service Sports Associations
12. Management of single Service sport is the prerogative of each Service. National single Service associations are responsible for the control and administration of sport within each of the Services. National single Service associations are directly responsible to their Service council member of the ADFSC for the implementation of sports policy and act as advisers to the member on individual sports. The ADFSC member approves the constitutions of national single Service associations, the structure of their management committees, and assists approved associations with costs.

Single Service Sport
13. The conduct of single Service sport is subject to individual Service policies and instructions. International single Service sport is to be endorsed by the ADFSC. Single Service sport may be conducted at the following levels:
a.Local:

(1)Regular inter-unit sport which may include invited teams from other Services; or

(2)Sport played by a visiting Australian ship or unit in a foreign country or with a foreign ship or unit visiting Australia approved by the ship or unit CO.

b.National. Sport endorsed by the single Service national sports associations between the Australian national single Service team and a team from within Australia.

c.International. Sport endorsed by the ADFSC between an Australian national single Service team and a team from another country.

Interservice Sport
14. Interservice sports competitions may be conducted at the following levels:
a. Local.Interservice competitions between different Services at local unit level.

b.State. Intrastate and interstate interservice competitions between representative teams from individual Services conducted under the auspices of the respective State or area ISSC.

c.National. Interservice competitions approved by the ADFSC and conducted between national single Service teams under the direct control of the ADF sports associations. The ADFSC will also consider applications from ADF sports associations to conduct these carnivals based on State combined Service teams, in lieu of national single Service teams. However, ADFSC financial assistance for such carnivals will be subject to the availability of funds and as a guide will not exceed the level which would have been provided for three single Service teams.

Combined Service Sport
15.      Combined Service sport may be conducted at the following levels:
a.State.   Intrastate and interstate competitions conducted under the auspices of the respective State or area ISSC.
b.National/International.         National combined Service teams (or individuals) representing the ADF in a sporting code having a national association recognised by the ADFSC. Control and coordination of sport at this level is the responsibility of the respective of the ADF association, with the approval of the ADFSC.

CONDUCT OF SPORT
Participation
16.      Members who have the ability to represent the Defence Force in sporting competitions are to be released to train and participate provided such release does not prejudice Service requirements. …
…
17.      Participation in sport is dependent on the type of activity and role of the unit. Regardless of the level of competition, approval for individual participation in sport rests with the member's Commanding Officer. A guide to periods of absence which may be authorised from normal duties is:
a.Single Service (inter-unit) Competitions. One half day or three to five hours weekly at the discretion of the Commanding Officer.
b.State Interservice/Combined Service Competitions. Up to three days to train and up to one week for competition annually, at the discretion of the appropriate ISSC.
c.National Interservice/Combined Service or International Competitions.   Up to one week for training and two weeks for competition annually, at the discretion of the ADFSC.

18.…

Authorisation Requirements
19.      Each service is responsible for determining the sports in which its members will participate. Commanding Officers may authorise members to participate in single Service activities which are not accredited by the ISSC for that area.
20.      Each ISSC is responsible for determining which sports shall be played at interservice or combined Service level within its jurisdiction. Authorisation for participation in sport at these levels is to be obtained from the appropriate ISSC.
21.      The ADFSC is responsible for determining which sports shall be played at the national or international level. Authorisation for participation in sport at these levels is to be obtained from the ADFSC.
22.      The ADFSC is to obtain clearance from the International Policy Division, Department of Defence for all proposals involving overseas tours by ADF sports teams or individuals representing a sports association.
23.      Attention is drawn to the need for written authorisation to participate in civilian sporting competitions and activities outside normal working hours. Members should also refer to DI(G) PERS 27 – 1 – Compensation for Commonwealth Employees and Members of the Defence Force in Respect of Personal Injury or Disease.
Commercial Support and Assistance
24.      Support in the form of money, equipment, clothing, trophies, travel, etc, offered by commercial organisations which aids participation by Service teams in sporting competitions may be accepted subject to the following conditions:
…

25. Requests for commercial support are to be forwarded to the approving authority in the format shown at Annex D. Approving authorities are as follows:
a.Local Sport. Unit/Base/Ship Commanding Officers;
b.State/Area Sport State/Area ISSC; and
c.National or International Sport. Service Offices/ADFSC.

26.…

Conditions of Service
27. The following conditions apply to members training and competing in approved Service sports activities or as a member of a Service team in civilian competitions:
a.Members will continue to receive Service pay and allowances.
b.The only supplementary allowance payable is based on the incidental element of Travelling Allowance (TA) and is subject to separate consideration, including the availability of funds, with each instance being considered on its individual merits.
c.The provisions of the Commonwealth Employees Rehabilitation and Compensation Act 1988 will apply where the activity satisfies the requirements of the Act.

Participation in Civilian Competitions
28.      A member may seek approval to participate in civilian competitions on the basis that it is in the Service interest. Commanding Officers should only provide such approval when the Service competition is of a level patently unsuitable to the demonstrated ability of the member, or where the sport is not catered for locally as a Service sporting activity. Such approval will normally be confined to activities endorsed by the appropriate ISSC, the parent Service or the ADFSC.
29.      A member participating in civilian sport without Service endorsement, should ensure that the club carries appropriate public liability insurance as well as insurance for personal injury or he should seek such insurance cover. The Commonwealth may not accept liability for any damage, personal or public, and Service personnel should be aware that they may be held personally liable.
30.      A member selected to represent Australia, a State or Territory in civilian competition, may be authorised to be on duty by his/her CO to train and compete.
Prizes
31.      Personnel may not accept any remuneration or prizes other than trophies for any sporting activity for which they are deemed to be on duty and receive assistance by means of public funding for such participation. Where special circumstances arise the matter may be referred to the ADFSC for consideration, but the principle to be applied is that no monetary profit shall accrue to the member. This also applies to civilians (Defence or otherwise) participating in joint Service/civilian activities. Such combined teams should only be formed when there is direct benefit to the ADF.
…" (Exhibit A).

On 4 May, 1997, Sergeant Lowth injured his shoulder while competing in a Post Classic Motorcycle Competition. He completed a claim for compensation on 28 May, 1997 and, on 30 July, 1997 (T documents, pages 23-24), Comcare accepted liability with respect to "a complete disruption of the acromioclavicular joint of the left shoulder" (T documents, page 35). Having admitted liability, Comcare asked Sergeant Lowth to identify the benefits for which he thought he might qualify and to advise it of those benefits. Sergeant Lowth indicated that he wished to claim a lump sum for permanent impairment and his medical costs (T documents, page 36).

On 4 February, 1998, Comcare wrote to Sergeant Lowth and advised him that his claim was under review. He was asked a number of questions relating to whether he would have participated in the sport had his activities not been approved by his Commanding Officer, whether he had participated to maintain his level of fitness and why he believed it was in the Service interest to participate in the sport of motorcycle racing (T documents, pages 48-49). Sergeant Lowth replied, in part:

"1.        I would not have participated in the motorcycling if I did not have an approved participation for civilian sport application. I understand that under the guidelines of DI(A)195-2 I may not have been covered in the event of injury/accident without approval. I highlight that at the same time I was approved to play soccer for St Albums and the Toowoomba Raiders, had I not had approval I would not have played. I do recognise that if I had wished to participate without ADF approval I would have sought insurance. Accordingly, I had ADF approval for participation in civilian sport and did not seek commercial insurance.
2.        I participated in both soccer and motorcycling to attain and maintain the high level of fitness required by the ADF. At the time of the accident I was walk/running 5.5 kilometres 3 times per week, playing 'on base' touch football once a week, training soccer 2 nights per week and playing on weekends as required. I also attended the Army LM Sqn scheduled physical training sessions for 2 hours per week. Motorcycling requires a high level of fitness, a letter from Mr S. Gall briefly provides his qualifications and the level of fitness necessary when motorcycle racing.
3.        Participating in motorcycling has the following advantages and is in the interest of the RAAF,
a.        I maintain the high level of fitness required by the ADF and the scheduled training I undergo is predetermined and ensures sound exercise habits.
b.        Almost all civilians of the clubs I race at and are a member of are aware I'm a member of the RAAF. I wear a DEFCREDIT shirt when racing. I also work at designated meetings providing service to clubs and the community. This allows me to assimilate into the local community and also enhances how the community regard the RAAF.
c.        I also maintain and service my own equipment which enhances my technical knowledge.

4. I also provide that both the RAAF and the Army have an approved motorcycle racing team. 'TEAM Army' and 'TEAM RAAF' both participate at events around Australia, this surely must indicate that members of the ADF have the support to participate in motorcycling events.
5. I firmly believe that members that have an 'approved participation in civilian sport' are covered in the event of injury and accident. This appears quite evident under the guidelines of DI(A) 195-2. I enclose letters from my immediate superior officer who approved my application, a letter from Mr S. Gall and my approved application dated FEB97." (T documents, pages 53-54).

THE EVIDENCE

Sergeant Lowth

Sergeant Lowth said that an airman was required to meet certain standards of fitness. He or she is required to undergo annual tests and, if being deployed overseas, a further pre-deployment test. The tests that must be passed depend upon a person's age but measure upper body strength, torso strength and speed. Sergeant Lowth said that a high level of fitness was required to engage in competitive motorcycling and that level is higher than that required by the RAAF of its airmen. He said that he trained 3 or 4 times each week by riding a bicycle and doing gym work. Since he was about 15 years of age, he has generally maintained a high level of fitness.

In the past, Sergeant Lowth said, he had played soccer but he now coached a team. As a junior when he was 15 or 16 years of age, he had played soccer for Queensland and had competed at the State level. He had continued to play soccer at club level until the time of his motorcycle accident. Playing at club level required him to play in weekend games and to participate in midweek training. He was required to maintain a high level of fitness suited to the level at which he was playing.

Sergeant Lowth said that he had been a touch football player and, before the accident, played at lunch time on the base. He had resumed it after the accident but had not participated in any games this year. Sergeant Lowth said that the standard of the games was at a lower standard than other games he played. When asked whether he maintained a high level of fitness anyway, he replied that he tried to maintain it.

Sergeant Lowth said that he tries to ride his bicycle each day. The journey that he rides is about 8 kilometres each way. He did not regard this as a sport. Occasionally, he will jog but only as a warm up and he does not do that even on a weekly basis. He does not swim.

The highest level at which Sergeant Lowth had been engaged in motorcycling was at the State level. He was doing so at the time of the accident. At that time, DEF Credit provided him with long sleeve shirts, short sleeve shirts, a bag and a water bottle. DEF Credit did not help in getting the motorcycle to the track or keeping it on the track. He said that he was not paid any money to wear DEF Credit's clothes.

Sergeant Lowth said that he was a member of the Brisbane Motorcycle Club. On the day of the race, he had been required to sign some forms registering himself as a competitor. Each year, he was required to apply for annual registration and for a licence from Motorcycling Australia. He had completed such an application on 24 February, 1998 (Exhibit 2) and had done so in 1997 as well. In that application, he had applied for a Senior National licence as a solo rider in the disciplines of Motocross, Dirt Track and Classic/Historic.

In completing his application, Sergeant Lowth acknowledged that:

"… motorcycle sport is dangerous and that by engaging in the sport and participating in the activity I take and am exposed to certain risks and dangers and am under certain obligations as follows:
a)that I may be injured, physically or mentally, and may be killed;
b)that my machinery or equipment may be damaged, lost or destroyed;
c)that other participants may ride dangerously or with lack of skill;
d)that track or event conditions may be hazardous and may vary without warning or predicability;
e)that organisers, officials, landowners/track operators and any agents or representatives of those in charge of motorcycle activities are frequently obliged to make decisions under pressure of time and/or events;
f)that any policy of insurance of or in respect of my life or physical or mental health may be avoided;
g)that there may be no or inadequate facilities for treatment or transport of me if I am injured;
h)that I have an obligation to myself and to others to compete safely and within the rules of competition." (Exhibit 2)

Sergeant Lowth also indemnified Motorcycling Australia in respect of any actions or claims that might be made against him or on his behalf in respect of any death, injury, loss or damage.

In cross examination, Sergeant Lowth acknowledged that he was aware that motorcycling was dangerous and that he had known that at the time of the accident in 1997. In signing the application, he had acknowledged also that others could ride dangerously or with insufficient skill and that the conditions of the track could be hazardous or unpredictable. Sergeant Lowth agreed with Mr Watson that motorcycling was dangerous but did not agree with him that it was highly dangerous. It was more dangerous than tennis or squash but he did not agree that it was more dangerous than rugby league, rugby union or downhill skiing.

At the time that Sergeant Lowth applied for registration, he was based at Toowoomba. He would have had the opportunity to ride at various tracks including some in New South Wales. When he was injured, he was riding at a track at Ipswich. At the time, he lived at Toowoomba.

The accident occurred on a dirt track. Sergeant Lowth agreed that it had been raining but did not agree with Mr Watson that the rain made the dirt track more dangerous. Rain on some tracks, he said, gives greater grip. When asked how the accident had occurred, Sergeant Lowth was unable to say more than that it was a "racing incident". He did not regard the fall as an "inherent danger" and did not believe that his fall was due to excessive speed. His concentration is very focused and he did not believe that it was due to lack of concentration. It was an accident. When asked by Mr Watson whether that meant that the accident was part of the inherent danger of motorcycling, he said "quite possibly" but added that he could not think of a reasonable answer to the question.

Sergeant Lowth's application to participate in civilian activities had sought approval for post classic motorcycle competition (T documents, page 10). Mr Watson suggested that this did not extend to motocross. Sergeant Lowth replied that post classic motorcycle competition encompasses flat track, motocross and natural terrain racing. Motocross takes place on a dirt circuit with obstacles. Where an obstacle cannot be avoided, he has to go across it.

Sergeant Lowth said that there had been occasions when he had not received permission to engage in the sport and he had not competed without it. He had not competed as he understood that the Instructions required him to have permission.

Major Nicklin

Major Ian Andrew Nicklin is the manager of Team Army Racing which is a subset of Army Motorcycle Racing. It is funded by the Army and is made up of individuals throughout the Army who are engaged in dirt and track racing. Major Nicklin managed it for some 3 years and motorcycle racing has been officially recognised as a sport in the Army for the past 5 or 6 years. Team Army Racing is not an accredited ADF sport at this stage, he said.

Major Nicklin gives money, allocated by the Army, to those individuals to enable them to compete. The individuals have a standard uniform and they sign a memorandum of understanding that they will apply for membership. Traditionally, they race in civilian races and only race together if two or more individuals are racing at a meeting.

Major Nicklin said that a person requires authorisation to race. He or she must submit a form to his or her Unit Commander who authorises him or her on a unit specific basis. Major Nicklin then signs a memorandum of understanding. His knowledge of his or her participation, he continued, classifies him or her as being on duty.

It is a fundamental requirement in the whole Defence Force, Major Nicklin said, that its members undergo a high level of training throughout the year.

Wing Commander Crocombe

Wing Commander Charles Crocombe was formerly with Army Logistics Management Squadron (Army LMSQN) at Oakey in Queensland. He joined it on 13 January, 1997 and, on 25 January, 1997, he approved Sergeant Lowth's Application to Participate in Civilian Activities Extra Physical Training. It had already been approved by the Section Commander and Unit Sports Officer. In his statement, Wing Commander set out his reasons for giving his approval:

"5. I gave final approval to the Application as I regarded the civilian activity, namely off-road motorcycle racing, to be in the interest of the Australian Defence Force.
6.It was my belief at the time of completing the form that the activity would benefit the Applicant both physically and mentally.
7.At that time, Sergeant Lowth had only recently joined the squadron in January 1997.
8.I have been the past President of the Australian Defence Force Squash Association for the last five years. At the time of signing the Application, I was the current President and had been for at least two years. I was aware that the nature of the civilian activity of which Sergeant Lowth was seeking approval, namely off road motorcycle riding, is physically demanding and you have to do training before hand to be fit to be able to compete or participate in such a sport.
9.Without my approval, the Application would have been denied. I gave final approval because it was my opinion that it was a legitimate activity for a service member to be involved in and would create good public relations for the Australian Defence Force." (Exhibit C)

In giving his evidence, Wing Commander Crocombe said that the ADF Squash Association is an accredited sports association with the ADF. In order to be accredited, an association must meet certain criteria set by the ADF Sports Council. Recognition of a sport by accreditation means that ADF personnel are encouraged to participate in it. He agreed with Mr Watson that some of the features of squash that led to the association's being accredited were: its promotion of fitness and a team approach; and its promotion of general well-being (both mental and spiritual) in a person. When it was suggested to him that squash was not attended by obvious inherent danger, Wing Commander Watson said that there had been eye injuries, muscular injuries and a broken Achilles tendon.

Wing Commander Crocombe said that motorcycle racing is in the ADF's interests as the fitness required of a competitor and the competition itself both require the competitor to have the discipline to apply him or her self to the training and the competition. That discipline is in the ADF's interests. He agreed that the level of fitness could be acquired by participation in sports other than motorcycling. When Mr Watson suggested to him that this led to there being nothing inherent in motorcycling that is for the benefit of the ADF, Wing Commander Crocombe said that he could not understand it. Just because fitness could be acquired another way, he said, does not mean that motorcycle racing is not for the benefit of the ADF.

Wing Commander Crocombe said that he had not weighed any possible detriment to the ADF against the benefit to the ADF in giving his approval to Sergeant Lowth. He did have regard to the ADF Policy on Sport and was aware of it as a result of his having been president of the ADF Squash Association. Wing Commander Crocombe said that he understood the expression "local sport" referred to in clause 3 of the ADF Policy on Sport to refer to sport in the region to which a person could reasonably drive. He was aware that Sergeant Lowth had stated in his application that he would compete at "various tracks local and State wide (Qld and NSW)". In response to Mr Watson's suggestion that a distance of 90 kilometres could not be regarded as "local" Wing Commander Crocombe replied that it could be driven in an hour. He agreed that shops at such a distance could not be described as "local shops". When signing Sergeant Lowth's application, he gave very little thought to whether the activities were local. He sees a large number of applications and does not consider exact definitions when signing them.

Later in his evidence, Wing Commander Crocombe said that what is regarded as local depends upon the level of competition. The standard of competition at Toowoomba is not high and, in order to maintain an appropriate standard, it is necessary to travel to Brisbane where the level of competition is higher. Brisbane is a drive of an hour and a half from Toowoomba and Ipswich is an hour.

Wing Commander Crocombe agreed that a person would be granted approval to engage in a sport that challenged them physically but not excessively and got their muscles moving. He disagreed with Mr Watson's proposition that this meant that the activity of lawn mowing would be approved. When asked where the limits would be drawn, he stated that he was paid to make judgements and that if he saw such an application, he would not approve it.

Major Borg

Major Anthony Borg is with the 5th Aviation Regiment in Townsville. He said in his statement that he had signed Sergeant Lowth's application as Section Commander and in his capacity as Iroquois LOG Manager, Army Logistics Management SQN. At the time, Sergeant Lowth was working directly under him. The practice was that personnel would talk with their section commander outlining their reasons. In the case of Sergeant Lowth's application, he stated:

"5. Prior to signing the form for Sergeant Lowth, I had discussed with him the nature of the civilian activity and what he would be doing.
6.I questioned Sergeant Lowth about safety and how the civilian activity, namely motor cycle off-road racing would be conducted. I further confirmed with him that the exercise would be conducted through a club and that there were definite procedures and safety in place.
7.I was aware that Sergeant Lowth had an interest in off road motor cycle racing.
8.I had observed other service members taking part in this sort of civilian competition, namely off road motorcycle racing, and it had featured prominently in Army newspapers on a regular basis.
9.At the time of signing the form I was of the opinion that the nature of the activity that Sergeant Lowth was seeking approval would be good public relations for the Defence Force where service members can do well in civilian sports competitively and that the type of activity would be beneficial to the level of fitness required by the Australian Defence Force.
10.I was aware at the time that the Airforce had its own Sports Motor Cycle Club.
11.I was not aware that this type of civilian activity was not on the list of Australian Defence Force Service competition Accredited Sports Associations. However, there is no requirement to only approve a civilian activity which is on the list, and such a sport can be authorised within the terms of the DI(A) Defence Instruction (Administration)." (Exhibit D)

In cross examination, Major Borg confirmed that he had wanted to know whether motorcycling was safe. He agreed that Sergeant Lowth had acknowledged that it was inherently dangerous but also agreed that he had not mentioned that in his statement. That had not appeared as he had asked about the facilities, such as qualified safety personnel, regarding safety. He rejected Mr Watson's suggestion that he would have given his approval to an activity of jumping off a cliff provided there were an ambulance at the bottom.

Sport, Major Borg said, improves fitness and most approved sports have inherent danger. Even AFL football has inherent danger. He agreed with Mr Watson that lawn bowls does not have inherent danger but he could not equate lawn bowls with any sport that added to a person's fitness. Mr Watson's example of tennis was an example of a sport that had fewer inherent dangers than motorcycle racing.

When asked how a sport that was inherently dangerous benefited the ADF, Major Borg said that it improves fitness and brings credit to the ADF if a person does well in it. News of a person's doing well is often found in ADF publications. He accepted that motorcycle racing is not an accredited ADF sport. Being injured or killed could be a consequence of any sport.

Major Borg said that he had obtained the ADF Policy on Sport so that the member of the ADF could be aware that he or she would be entitled to compensation if hurt. By making the member aware, he was looking at it from the point of view of the ADF.

In response to Mr Watson, Major Borg said that he was not aware that the ADF Policy on Sport was limited to only four categories. Those categories were said to be local, regional, State and national. Major Borg said that sport was not played within the confines of geographical areas. In so far as sport is concerned, he understood the term "local" to mean within the confines of the immediate area. He was aware that Sergeant Lowth had applied for permission to ride in New South Wales. He also knew that the motorcycle for which Sergeant Lowth had sought approval did not come within "Interservice Sport". It was not "Programmed Sport" as that covered "PT" (i.e. physical training). He disagreed with Mr Watson's suggestion that, as the motorcycle racing did not come within any of those categories, it could not be covered by the ADF Policy on Sport.

Captain Prigg

Captain Stephen Kenneth Prigg is currently the SO2 Injury Prevention in the Directorate of Preventative Health at the Defence Service Branch. He has a background in the military and holds a Bachelor of Education and a Masters in Exercise Science. At the time of the hearing, he was also studying for a Masters in Public Health. In his position, he gives technical advice to the ADF on physical training and sport policy matters. The Directorate of Preventative Health "… links policy with Defence Safety Management Agency and Defence Compensation and Rehabilitation Services". In his statement, Captain Prigg addressed various aspects of the ADF Policy on Sport, INDMAN Instruction 2801, the ADF Policy on Physical Fitness (DI(G)16-11), the Army Training Instruction 6-1 Basic Fitness Assessment (BFA), Army Training Instruction 6-1X Combat Fitness Assessment (CFA) and the various policies on compensation including Compensation for Commonwealth Employees and Members of the Defence Force in respect of Personal Injury or Disease (DI(G)27-1) and Compensation for Commonwealth Employees and Members of the Defence Force in Respect of Personal Injury and Disease (DI(G)27-1).

Captain Prigg set out the relevant passages of directives relating to risk management when he said:

"CA DIRECTIVE NO2/98 ARMY RISK MANAGEMENT directs the responsibilities of risk management to Commanders. Para. 10 states:
Responsibilities
Risk management is the responsibility of all commanders. Commanders at all levels are to:
a.incorporate risk management into the planning process at all levels,
b.identify all reasonable foreseeable hazards arising from the task or operation,
c.assess the level of risk imposed by identified hazards,
d.adopt appropriate measures to manage or control the risk,
e.monitor and review the effectiveness of the controls, and record lessons, and
f.provide appropriate training to ensure personnel are competent in the application of the ARM process.

Para 12. E. states:
All Commanders. Commanders at all levels are to ensure the risk management process is documented in accordance with the guidance given in the ARM process. For collective training activities a risk assessment and management plan is to be included in exercise/activity instruction.
ANNEX A TO CA DIRECTIVE NO 2/98 ARMY RISK MANAGEMENT determines the Risk of Perception and states at Para 6:
The determination that a certain level of safety exists prior to the conduct of an activity is the ability of an individual to make a 'value' judgement on safety arising from the assessment, against their own criteria, that the level of risk to which he or she is to be exposed is acceptable or unacceptable. An individual's perception of risk are a function of training, organisational, and cultural values. Risks may be real or perceived. Individual commanders and planners must conduct an analysis of all command and control arrangements, procedures, items, activities and situations that could result in potential injury or damage so as to satisfy Army tasks objectives.
Para 7(d)(1) states:
Procedural/administrative controls may include:
Reducing the number of employees exposed to none(sic) cumulative type hazards eg violent, physical hazards

ARMY – OCCUPATIONAL HEALTH AND SAFETY MANUAL CHAPTER 5 Para 505 states:
Risk Management.
The process of identifying hazards, evaluating the degree of risk associated with identified hazards and taking action necessary to eliminate or reduce exposure to those hazards." (Exhibit 3, paragraph 18)

Captain Prigg also set out the provisions of the directive concerning occupational health and safety. He said:

"DI(G) PERS 19-2 OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) ACT 1991 IMPLEMENTATION WITHIN AUSTRALIAN DEFENCE FORCE. Provisions of the ACT-GENERAL para 6a. and b. states:
Objects of the Act
The object of the Act, as stated in the Act, are as follows:
a.to secure the health, safety and welfare at work of employees of the Commonwealth and of Commonwealth authorities;

b.to protect persons at or near workplaces from risk to health and safety arising from the activities of such employees at work.

Para 17 states:
Duties of Employing Authority
The Act requires the employer, and thus, by definition, the Employing Authority, to:
a.take all reasonable practical steps to protect the health and safety at work (5) of employees.

(5)An employee is deemed to be at work at all times when that employee is performing work at the direction of, and in connection with an undertaking carried on by, an employer, whether or not the work is carried out at a workplace.

Para 18 a states:

Duties of Employees

The Act requires employees to:

a.not create a risk, or increase an existing risk to the health and safety of the employee or of other persons at or near the workplace." (Exhibit 3, paragraph 19)

With regard to sport and fitness training, Captain Prigg stated:

"… The ADF views the habit of self-discipline required to maintain an appropriate level of physical fitness as inherent, however at present it doesn't appear to be the core activity to achieve this. Historically and currently sport has been a focus for the improvement of fitness. It is well documented that training for sport must be specific to the biomechanical and physiological aspect of that sport. That is, we need to be conditioned before we play sport, not play sport to get fit.
Playing sport, though enjoyable, may increase the risk of injury. Appropriate levels may not be achieved through sport. The Australian Institute of Sport recommends general physical conditioning programs to develop fitness by combining agility, power, kinaesthetic perception and strength components to a limited degree.
Compounding this problem are the current constraints on manpower which have resulted in less involvement in organised sport. Occasional sport is an example of sudden vigorous exercise which can be associated with limited preparation and may lead to injury.
Sports participation carries with it the risk of getting injured. However, the magnitude of this risk and the type of injury strongly depend on the kind of sport and the way it is practiced. It appears that some sports are characterised as extreme.
Sports such as motor cycle racing, motor car racing, drag car racing, rodeo riding, horseracing, harness racing and others, rely on high speed and are inherently more dangerous.
These sports have potential for higher risk, more severe injuries or premature death when compared to the incident rates of ball sports, athletics, racket sports, martial arts, swimming etc.
There is no doubt that the benefits of sports participation far outweigh the risk of injury. Risk management process for the prevention of injury needs to be developed. Currently the Directorate of Preventive Health is preparing Commander guidance for Sport Safety Plan policy for the ADF." (Exhibit 3, paragraph 20)

In giving his oral evidence, Captain Prigg said that members of the ADF must meet its fitness requirements. When asked whether motorcycle racing enhances a person's fitness for the purposes of the ADF, he replied that the Australian Institute of Sport ("AIS") has recommended that the best thing to do is to do specific training. So, for example, if the test is running, a person should run and if the test is for cardiovascular fitness, the training should be directed to that. Motorcycle racing would not enhance a person's fitness for the purposes of the ADF. Apart from issues of fitness, motorcycle racing would bring benefits to the individual in terms of morale and lifestyle but not to the ADF. In cross examination, Captain Prigg said that there are 5 or 6 physiological responses that are required to meet the fitness levels set by the ADF. Motorcycle racing was not recognised by the AIS as one of those 5 or 6. He could not comment upon the proposition that if a person were fit enough to undertake motorcycle racing, he or she would be fit enough to meet the ADF's fitness requirements. He could not comment as he did not have the competencies.

Captain Prigg agreed with Mr Pope that there are significant injuries in both rugby union and rugby league. He also agreed that there is an inherent risk of injury in any contact sport. There is also an inherent risk in sports such as downhill skiing and parachuting. When asked whether there are a number of accredited sports that have inherent risks, Captain Prigg said that he did not know about quantifying the risk. While parachuting involves a greater risk than lawn bowls, there have been fewer than a handful of deaths in parachuting. Parachuting is a group activity on a static line. The ADF Parachute Association is an accredited sports association. Captain Prigg said that parachuting is a recognised military activity. He agreed with Mr Pope that a lot of people in the ADF are required to ride motorcycles.

Captain Prigg addressed the accreditation of sports in his statement:

"The Sports policy for the ADF is the responsibility of the Joint Education and Training (JET) Program. JET exercises this responsibility through the Australian Defence Force Sports Council (ADFSC). There are 24 accredited ADF sports. ADFSC approves the conduct of national and international events proposed by the 24 sports bodies and provides some funding for them. Competitions are organised by the 24 accredited sports associations, each of which has discrete executive funding. ADF sports associations are responsible for the coordination and administration of all matters relating to national interservice and national combined Services sports. ADFSC monitors the activities of the ADF sports associations. There are no motor sports listed in the ADF accredited sports." (Exhibit 3, paragraph 7)

In cross examination, he was asked whether the accredited sports were aimed at fitness. He replied that it was a "tough question". For ten pin bowling, lawn bowls and golf the level of fitness required is negligible. None is required for gliding but the task of gliding is related to skills. Gliding is one of the most high risk activities that a person can undertake.

Captain Prigg was not involved in the formulation of the ADF's Policy on Sport but he is involved in its review. In his view, the expression "Local Sport" referred to civilian sport where there was insufficient competition within the units.

Major Hadzi

Major Christopher Hadzi-Music did not give evidence but a note was taken of a conversation between him and Mr Askin, Sergeant Lowth's solicitor:

"1. That he was the Sports Officer for the Unit at the relevant time and as such it was his responsibility to make a recommendation one way or another to the Officer-in-Charge as to whether the application for authorization should be approved.
2.He recalls the application and upon receiving same he researched the request by speaking to members of the Army Motor Cycle Association within the Defence Force and also representatives within the Sport Council in relation to the sports which were referred to in the DIG. Following discussions with them and on their recommendation he believed that the application should be authorized on the basis that the sport selected by Sergeant Lowth could be classified as an inter-service sport. He was advised that it had not been included in the list in the DIG, as it was not a high profile sport although it was regarded as not as dangerous as other sports included due to the controls and regulations within the sport.

3.He recalls advising the CO at the time of his research into the matter and recommending authorization.

4.He regarded it as a team sport as although one raced individually it required interaction with others, both in preparation and maintenance and in competition itself.

5.Fitness was an integral part of the sport and lead-up and training for the sport required improving and maintaining fitness which is part of Defence and a benefit to Defence and a benefit to the individual within their employment with the Defence.

6.The activity in his mind after these discussion bore the appropriate relationship to inter-service sport and to the applicant's employment as a member of the Defence Forces.

7.On providing such authorizations he believed that the member was then authorized to participate in the sport under the umbrella of the Defence Force with the attributable compensatory benefit but also that the member, having been authorized, was participating within his employment with the Defence Force." (Exhibit E)

CONSIDERATION

The submissions made by both Mr Pope and Mr Watson focused upon the meaning of the word "local" as it is used in the expression "Local Sport" in clause 3b of the ADF Policy on Sport. Mr Pope submitted, in essence, that the local sport referred to in that clause must be the civilian sport referred to in clause 28 for Programmed Sport, Interservice Sport and Combined Service Sport are specifically oriented to service sports.

Mr Watson submitted, in essence, that only a person authorised to participate in sport within the terms of the ADF Policy on Sports is deemed to be on duty and covered by the Act. If a person's sporting activity falls outside that policy, he or she is not covered even if authorisation was given by the appropriate service personnel. Relying on clause 3b of the ADF Policy on Sport and the ordinary meanings of the word "local", Mr Watson submitted that approval could only be given to sporting activities in a town or small district and not to activities in Ipswich, which is some 90 kilometres from his home base in Toowoomba. He referred to the distinction between "local" on the one hand in clause 3c and "regional", "State" and "national" on the other as well as upon the ordinary meanings of the word "local" which he submitted were:

"(i) 'pertaining to a town or a small district rather than the entire state or country' – Macquarie Dictionary, 2nd ed;
(ii)'belonging to a town or other limited region, as distinguished from the country as a whole' – Shorter Oxford English Dictionary, 3rd ed." (submission, page 5)

Furthermore, Mr Watson submitted, those authorising Sergeant Lowth's participation in motorcycle racing had not considered whether his doing so was in the "Service interest" as required by clause 28 of the ADF Policy on Sport.

The starting point for my consideration is s. 14(1) of the Act provides that:

"Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

The word "injury" is defined in s. 4(1) to mean:

"(a) a disease suffered by an employee; or
(a)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(b)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

The word "employment" is not defined in the Act but the word "employee" is defined (ss. 4(1) and 5(1) and (1A)). In general terms, an "employee" is a person who is employed by the Commonwealth, a Commonwealth authority or a licensed corporation (s. 5(1)). Section 5(2)(b) goes on to provide that:

"a member of the Defence Force; …
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person's employment shall, for the those purposes, be taken to be constituted by the person's performance of duties as such a … member of the Defence Force or the duties of that office, as the case may be."

There is no question that Sergeant Lowth's injury arose out or, or in the course of motorcycle racing. It follows that Sergeant Lowth's injury will have arisen out of, or in the course of, his employment if motorcycle racing is part of the performance of his duties as a member of the RAAF and so of the Defence Force.

Defence Instructions (General) are issued pursuant to s. 9A of the Defence Act 1903 ("Defence Act") and are "issued by or with the authority of the Secretary and the Chief of the Defence Force in pursuance of the powers vested in them jointly". Section 8 of the Defence Act provides that Defence Instructions (General) "shall be exercised subject to and in accordance with any directions of the Minister".

A Defence Instruction is a general order within the meaning of the Defence Force Discipline Act 1982 ("Defence Discipline Act"). Section 3 of that Act provides that a "general order" means:

"(a) a Defence Instruction (General), a Defence Instruction (Navy), a Defence Instruction (Army) or a Defence Instruction (Air Force);
(b)any other order, instruction or directive issued by, or under the authority of, the Chief of the Defence Force or a service chief; or
(c)a general, standing, routine or daily order in force with respect to a part of the Defence Force; …"

Section 29 of the Defence Discipline Act provides:

"A person, being a defence member or a defence civilian, who does not comply with a lawful general order that is applicable to the person is guilty of an offence for which the maximum punishment is imprisonment for 12 months.
It is a defence if a person charged with an offence under this section neither knew, nor could reasonably be expected to have known, of the general order."

The ADF Policy on Sport is a Defence Instruction (General). It states, and it is common ground between the parties, that a member of the ADF who is authorised to participate in sport within its terms is deemed to be on duty. Applying s. 5(2)(b) of the Act, that member's participation in sport in accordance with the authorisation is part of the performance of his or her duties as a member of the ADF and so part of his or her employment in the ADF.

Both Mr Pope and Mr Watson have considered the matter on the basis of whether the ADF Policy on Sport authorises Sergeant Lowth's motorcycle racing. Although Mr Watson submitted that the officers granting the authorisation could not legally act beyond their power and so could not bind the Defence Force, I have not found it necessary to consider that submission and will leave it open for another occasion.

Clause 3 of the ADF Policy on Sport sets out that it covers programmed sport, local sport, interservice sport and combined service sport. The first issue to consider is whether that is all that it covers. That requires a consideration of the document as a whole. When that is done, it is seen that the document deals with three broad subject matters: sport management; conduct of sport; and logistical and financial assistance.

Taking first sport management, it is concerned entirely with the management of sport in the Defence Force whether it is at the level of single service, interservice or combined service. There is no reference to civilian competition and no arrangements are made for the management of single service, interservice or combined service participation in civilian competitions. It is apparent from clause 13a of the ADF Policy on Sports that the word "local" is used in a sense different from that set out in the dictionary definitions I have set out above. Local sport, in the context of a single service sport, refers in the first place to regular inter-unit sport (clause 13(a)(i)). In that sense and without regard to its context, it may be open to the interpretation that it is limited to sport in a limited region in which the units are based. Local sport, in the context of a single service sport, refers in the second place to sport played by a visiting Australian ship or unit in a foreign country or with a foreign ship or unit visiting Australia (clause 13(a)(ii)). Clearly then, the word "local" is not used to limit sport to a limited geographical region. The limitation is rather to a ship or unit, regardless of the place in which the sport is being played. The common thread between the two senses in which "local" is used in clause 13a is the unit be sport inter-unit or sport played by a unit overseas or with a unit from overseas. The notion that the word "local" has reference to sport at the unit level is continued in clause 14a where the local level of interservice sport competitions is described as interservice competitions between Services at local unit level.

Taking next the subject of conduct of sport dealt with in the ADF Policy on Sport, a distinction is made between local sport, State/area sport and national/international sport when approval is sought for commercial support to aid the participation of service teams in competitions. In the case of local sport, the approving authorities are the unit/base/ship commanding officers. The focus is again on the unit and not on the geographical area. Where State/area sport is concerned, the State/area ISSC is the approving authority and the Service offices/ADFSC in the case of national and international sport. It is apparent from the functions of the ADFSC and the ISSCs set out in clauses 7, 10 and 11 that those bodies' responsibilities for sport do not extend beyond service sport.

Authorisation requirements are set out in clauses 19-22 in so far as they concern service, interservice and combined service competition. They also set out the manner in which authorisation will be given for competition at national and international level. In so far as civilian competition is concerned, clause 23 does not go on to prescribe those who may give authorisation but merely refers to the need to obtain it. That is left to clause 28 which sets out criteria for the grant of authorisation different from those set out in clauses 19-22. Clause 30 sets out that a person's commanding officer may authorise him or her to be on duty if he or she is selected to represent Australia, a State or a Territory in civilian competition. That suggests that the authorisation to compete in civilian competition could not be limited in geographical terms to a small district for I think that I can, without evidence on the point, assume that a person cannot expect to represent Australia in any sport unless he or she has first competed outside their local district. That is also generally applicable to representation at the State or Territory level unless, perhaps, his or her local district happens to be the major centre for the sport.

Returning to clause 3b, it seems to me that the reference to "local sport" in clause 3b is a reference to sport conducted in a small district at the local unit level whether within a single service or between or among different services. Having regard to the ADF Sports Policy as a whole and to clause 3, I have concluded clause 3 sets out certain matters covered by the policy but that it is not intended to set out all of those matters. In particular, it is not intended to refer to civilian competition at all let alone to limit civilian competition to that at the local level. Civilian competition is not something within its purview. The main thrust of the ADF Policy on Sport centres upon service sport. Participation of service personnel in civilian competition is, however, recognised in clauses 23 and 27. Approval for that participation is specifically provided for in clause 28 but that clause falls outside the authorisation provisions relating to single service, interservice and combined service competition.

As civilian competition is not limited by the reference to local sport in clause 3b, the only limitations upon Sergeant Lowth's commanding officer are to be found in clause 28. As that clause does not contain any geographic limitations upon his powers, it follows that the authorisation could extend to motorcycle racing at "various tracks local & State wide (Qld and NSW)". The approval was properly given on that basis.

What of any other matters which must be taken into account in granting approval. A reading of clause 28 shows that there are three matters to which regard should be had. The first is that the sports activity for which authorisation is sought be in the "Service interest". Taken in the context of the ADF Policy on Sport and particularly in light of clause 1, an element of the service interest must be the physical and mental well-being of each member of the Defence Force. That physical and mental well-being is said to be an essential element in the operational efficiency of the Defence Force. Clause 28 requires that approval should only be given where the service competition is of a level patently unsuitable to the demonstrated ability of the member or where the sport is not catered for locally as a Service sporting activity. The third matter specified in clause 28 is that approval will normally be confined to activities endorsed by the appropriate ISSC, the parent Service or the ADFSC.

On the basis of his evidence, I find that Wing Commander Crocombe took into account the need for Sergeant Lowth, as a member of the Defence Force, to maintain fitness and the benefit to the Defence Force's public relations. He took into account that motorcycle racing itself did not maintain Sergeant Lowth's fitness but that it required him to have the discipline to apply himself to training to ensure that he was fit to compete and it required him to have the discipline to apply himself to the competition itself. The acquisition and maintenance of that discipline was in the Defence Force's interests. I find that Wing Commander Crocombe's views relating to fitness were consistent with those expressed by Captain Prigg that a person must be conditioned to play sport and not play sport to get fit.

The ADF Policy on Sport does not address the risks of sport and does not direct any of the bodies involved in the implementation of the policy to take it into account. Indeed, risk would not seem to be a relevant factor at all in the policy. I reach that conclusion on the basis that a sport such as gliding has an accredited ADF sports association. On the basis of Captain Prigg's evidence, I find that it is the most inherently dangerous sport of all. It is to no point that it, together with activities such as parachuting, may be part of the duties of a member of the Defence Force. The policy is concerned with sport and not with their other duties. On the basis of Captain Prigg's evidence again, I find that consideration is currently being given in the Directorate of Preventative Health to the balance between sports participation and the management of the risk of injury from that participation. There is no policy on it at the moment and my consideration is limited to the policy as it was in force when Wing Commander Crocombe approved Sergeant Lowth's application.

On the basis of the evidence of Sergeant Lowth and Captain Prigg as well as Wing Commander Crocombe, I am satisfied that motorcycle racing is an inherently dangerous sport. Taking the policy into account and the activities for which there are accredited ADF sports associations, the risks are not so unacceptable that approval was not in the interests of the Defence Force.

In assessing the interests of the Defence Force, there is nothing in the ADF Policy on Sport that requires the Commanding Officer to consider whether a person has already achieved an appropriate level of fitness by pursuing other activities or whether he or she can maintain it in another fashion.

I also find that Wing Commander Crocombe was aware that the standard of competition at Toowoomba is not high and, in order to maintain an appropriate standard, it is necessary to travel to Brisbane where the level of competition is higher. Although not specifically addressed, I am satisfied that Wing Commander was, in referring to the standard of competition, referring both to the standard of civilian competition and of Service competition available locally to Sergeant Lowth.

There is no evidence that Wing Commander Crocombe considered the activities endorsed by the ISSC, the RAAF or the ADFSC. I have no evidence as to what those activities are. They would not seem to equate with the accredited ADF sports associations listed in Annex C of the ADF Policy on Sport. If they were to equate with those associations, I note that a motorcycle racing association is not an accredited ADF sports association. There is, however, no requirement that approval only be given where an activity has been endorsed by the ISSC, the RAAF or the ADFSC. Clause 28 states only that approval will "normally" be confined to those activities but does not prohibit approval where the activity has not been endorsed.

It follows that, in approving Sergeant Lowth's participation in motorcycle racing on 25 February, 1997, Wing Commander Crocombe was acting within the scope of the actual authority given by the ADF Policy on Sport. On the basis of the evidence I have been given, I am also satisfied that, on the day on which he was injured, Sergeant Lowth was competing in a civilian motorcycle racing competition within the terms of the approval he had been given. Therefore, he was deemed to be on duty and his injury arose out of, or in the course of, his employment.

For the reasons I have given, I:

1.set aside the decision of the respondent dated 6 August, 1998; and
2.substitute a decision that the applicant's disruption of the acromioclavicular joint of his left shoulder is an injury within the meaning of s. 4(1) of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the seventy six preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed:          ....................................................
Date of Hearing  16 April, 1999, 17 February, 2000
Date of Decision   21 June, 2000
Counsel for the Applicant             Mr M E Pope
Solicitor for the Applicant            Nehmer McKee & Partners
Counsel for the Respondent         Mr G M Watson
Solicitor for the Respondent         Sparke Helmore

[2000] AATA 494

21 June 2000