Maynard and Comcare

CATCHWORDS – COMPENSATION – applicant involved in serious car accident during period of rest and recreation – whether injuries arose out of or attributable to applicant's employment in the Army – whether applicant travelling from place of residence to place of work – whether accident occurred during ordinary recess of employment - decision affirmed.

Administrative Appeals Tribunal Act 1975 – ss 25, 37
Safety, Rehabilitation and Compensation Act 1988 – ss 4, 5, 6, 14
Workers' Compensation Act 1926 (NSW) – s 6

Comcare Australian (Defence) v O'Dea (1997) 150 ALR 318; (1997) 26 AAR 252
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; (1964) 38 ALJR 64; [1964] ALR 1031
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; (1951) 25 ALJR 616
Re Kelly and Australian Telecommunications Corporation (1991) 14 AAR 198
The Commonwealth v Wright (1956) 96 CLR 536; (1956) 30 ALJR 592

DECISION AND REASONS FOR DECISION [2000] AATA 1084

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S1996/361
GENERAL ADMINISTRATIVE DIVISION      )

Re MICHAEL PHILIP MAYNARD

Applicant

And COMCARE

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)
Dr J T B Linn (Member)

Date: 8 December, 2000

Place: Adelaide

Decision:The Tribunal affirms the decision of the respondent dated 12 December, 1996.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 30 December, 1996, the applicant, Mr Michael Philip Maynard, applied for review of a reviewable decision of the respondent, Comcare, dated 12 December, 1996. In that decision, Comcare, affirmed its earlier decision dated 14 February, 1991 that the injury he suffered on 1 April, 1990 is not compensable under the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

At the hearing, Mr Maynard represented himself with the assistance of Mr Gary Sawyer, Ms Carol Martinella and Mr Justin Boxer. Comcare was represented by Mr Lenczner of counsel. The documents admitted pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents") were admitted in evidence together with Mr Maynard's service classification record, extracts from The Stress Protection Plan: How to Stay Healthy under Pressure, Leon Chaitow, 1992; Falling Apart. Living with Stress Breakdown Michael Epstein and Sue Hosking, 1989; Mental Health Disorders Source Book, Karen Bellenir (ed), 2nd edition; a two page statement by Mr Maynard titled "Applicant 596/316"; pages one and three of a typed statement by Mr Maynard dated 19 February, 2000; a statement and three photographs related to Week 10 of the 12 week Basic Training Course; Mr Maynard's invalidity Retirement from the Defence Force form dated 14 March, 199; and 29 pages of photographs of Mr Maynard during and after his Basic Training at Kapooka. Oral evidence was given by Mr Maynard in support of his own case. Written statements were made, and oral evidence was given, by Mr Kenneth Doubleday, Mr David Evans, Mr Jim Evans, Mr Christopher Gatehouse and Mr Fontalvo in support of the case presented on behalf of Comcare.

THE ISSUES

The issue in this case was whether Mr Maynard's injury arose out of, or in the course of, his employment.

BACKGROUND

There were some factual matters that were not in dispute between Mr Maynard and Comcare. In view of that and on the basis of the evidence we have been given, we have made a number of findings of fact in relation to those matters. We will set them out in the following paragraphs.

Mr Maynard was born on 26 November, 1969. He repeated Year 12 at school but successfully completed it. During his secondary education, he worked part time as a retail assistant in a sports store. He played Australian Rules football, baseball and cricket. When he left school, he worked for three months as a part time car detailer while there was work available. He also played A grade indoor cricket.

On 31 October, 1989, when he was 19 years of age, Mr Maynard enlisted in the Australian Army ("Army") for a period of four years. On the completion of his recruit training and with effect from 6 February, 1990, he was allocated to the Royal Australian Electrical and Mechanical Engineers. On 29 March, 1990, Mr Maynard marched in to the RAEME Training Centre at Wagga Wagga ("Wagga") in New South Wales. He did so as, on 2 April, 1990, he was commence the ACFITT 2/90 course at the RAAF School of Technical Training ("RAAF School"). That was a course that would lead to his being qualified as an apprentice aircraft fitter.

At approximately 0415 hours on Sunday, 1 April, 1990, Mr Maynard was involved in a single vehicle accident near Wagga. He suffered a severe head injury and was taken to the Wagga Base Hospital where he was resuscitated. Later, on 3 April, 1990, he was transferred to the Royal Adelaide Hospital and then, on 8 May, 1990, to the Julia Farr Centre. As a result of his injury, Mr Maynard has suffered widespread neurological deficit with associated psychological dysfunction.

After being found to be medically unfit for service, Mr Maynard was discharged from the Army on 31 March, 1991. He has not undertaken paid employment since his discharge. Had he not been injured in the accident we find, based on the Army's statement made for the purposes of the Defence Force Retirement Death Benefits Act 1973, that he would have successfully completed his
course at the RAAF School.

Mr Maynard applied to the Repatriation Commission for a disability pension under the Veterans' Entitlements Act 1986 but his application was refused on 18 January, 1994. It was refused on the basis that it was not a defence-caused injury within the meaning of the legislation. That decision was affirmed by the Veterans' Review Board on 12 July, 1994 and by a decision of a differently constituted Tribunal on 2 October, 1996.

During the course of the reconsideration of the Repatriation Commission's decision, Mr Maynard corresponded with Comcare regarding its earlier decision in 1991 to refuse his claim for compensation. After the Tribunal's decision had been handed down in relation to his claim for a disability pension, Comcare arranged for the review of its initial decision refusing his claim for compensation. It made those arrangements on 8 November, 1996.

THE EVIDENCE

Enlistment in the Army

Mr Maynard

Before enlisting, Mr Maynard said, he was undertaking study to obtain an Associate Diploma in Accountancy. When he undertook his enlistment examination in June, 1989, he continued, he achieved a mark of 110 out of 112 or 98.2%. He had applied to be an officer cadet at the Royal Military College at Duntroon ("Duntroon") and had understood that he would be accepted if he achieved a pass mark of 95% or above. On his enlistment application, however, he had stated that he would go through basic training if he were not accepted into Duntroon.

Mr Maynard said that he did his basic training at Kapooka near Wagga. While travelling to Kapooka, the corporals accompanying the group had reinforced the message that they were expected to drink alcohol as a relaxant. The course ended at the end of February, 1990. During that time, he had leave over Christmas. His girlfriend visited him. Sometime before 16 November, 1989, he had been called to the office of Lieutenant Day and told to break with his girlfriend. He was told to do it by the end of 1990. Mr Maynard had not wanted to break it off and so chose the last day on which to do so. He broke up with her on New Year's Eve and so complied with the order.

Events on arrival at the RAAF School of Technical Training

Mr Maynard

Mr Maynard said in his statement that, on 29 March, 1990, those selected to be aeronautical engineers were taken to the RAAF School at Forest Hill. We note that Forest Hill is located to the east of Wagga on the Sturt Highway. On arrival, Mr Maynard continued, the personnel were introduced to Sergeant Doubleday, who was the Introductory Officer at the RAAF School and the Acting Adjutant for the Department of Defence. In his oral evidence, Mr Maynard said that Sergeant Doubleday lectured them on something to do with aircraft motors.

Sergeant Doubleday told them that they could be re-posted to the RAAF base near their family homes and near to their place of enlistment. He collected their papers and, after looking quickly through them, called on Mr Maynard, A. McKay and another person who was also from South Australia. Mr Maynard recalled Sergeant Doubleday's telling the three of them, in front of the remaining five soldiers, that they could be re-posted to the RAAF base at Edinburgh in South Australia. There would be no problem as the RAAF maintained basic training courses for its own personnel at Edinburgh throughout the year. Sergeant Doubleday then told them that "'If we chose this option, Forest Hill RAAF Base wouldn't be considered our Domicile, any longer.'" (Exhibit E, paragraph 5) Mr Maynard said that it did not take him long to decide that the re-posting would benefit him as he would be reunited with his "former love" whose father was an NCO at the Edinburgh base. Consequently, he chose to be re-posted.

In an earlier statement dated 24 October, 1996, Mr Maynard had also referred to the status of Forest Hill in relation to him and had written:

"I would like to point out that the RAAF base Forest Hill was NOT my permanent residence for the course. My permanent residence was RAAF base Edinburgh. I was only staying at Forest Hill over the weekend, as requested by the Army, as they were unsure of whether I wanted to stay at Forest Hill." (T documents, page 63)

In a subsequent statement dated 30 October, 1996, Mr Maynard explained that:

"As I was posted over to the RAAF School of Technical Training, Forest-Hill, the adjutant for the department of defence, Sgt Doubleday who was the introducing officer first suggested to me & others, that we could take the opportunity to complete the 'Acfitt course within the home state we were from.
Then looking over the documents he noticed I was from Adelaide, which was perfect for an option of being reposted home to RAAF Edinburgh, which I chose because I really wanted to reunite with my ex-girlfriend.
Therefore technically, RAAF Forest-Hill wasn't my domicile, only somewhere to camp, until transportation was arranged the following Monday." (T documents, pages 57-58)

At the hearing, Mr Maynard said that he was posted to the RAAF School. That was over the road from the Army Base; one was in New South Wales and the other in Victoria. He was to sleep at the base he was posted to and he was posted to the RAAF School.

Mr Maynard said in his written statement given at the hearing that Sergeant Doubleday then continued to show them around the rest of the base at the RAAF base at Forest Hill. Before telling them where the mess and "boozer" were and assigning them to general duties for the remainder of the day, Mr Maynard said that Sergeant Doubleday:

"8. … unconditionally made us aware that a Formal Parade was to be held on the Main Parade Ground, but before moving towards the hangers (sic), a colleague bench-marked the whole situation.

Using this method of questioning himself, he realised the following Sunday was April Fools' (sic) Day.

9.So after word got around, it was only a practical joke, we questioned him on the Main Parade Ground, where we discovered he had grudges against Army personnel, because he tried several times to enlist within the Army and constantly got refused. In front of the soldiers, he admitted trying to hoodwink us Army soldiers because he was trying to show the Department of Defence we were gullible Soldiers even though we were accepted in the Australian Army." (Exhibit E)

In an earlier statement dated 19 July, 1996, Mr Maynard said that:

"… THE ADJUTANT FOR THE DEPT. OF DEFENCE, Sgt. DOUBLEDAY, HOODWINKED US 8 ARMY PERSONNEL INTO BELIEVING THERE WAS A FORMAL MARCH EVERY SUNDAY MORNING AT 08:25 TO UNITE RAAF. & ARMY PERSONNEL TOGETHER AS A SOLIDARITY UNIT, BUT UNFORTUNATELY THAT SUNDAY IT WAS 01/04/90 (APRIL FOOLS DAY).
THEREFORE SHAMEFUL WAS I TOOK HIS WORD AS TRUTHFUL AS HE WAS THE 'INTRODUCING OFFICER' AN ACTING ADJUTANT FOR THE DEPARTMENT OF DEFENCE." (T documents, page 29)

In his statement of 30 October, 1996, Mr Maynard said that:

"… the RAAF Introducing Officer was childish for initiating an April Fool's prank. This prank totally mislead (sic) me especially with Cfn Andrew McKay continuing the joke, being that a formal march was to be held every Sunday, starting this Sunday. This Sunday was; April Fool's Day, the day of my unfortunate, horrific motor-vehicle accident." (T documents, page 58)

At the hearing, Mr Maynard said that Sergeant Doubleday had clarified his statement and had said that the parades would start the next Sunday. A few of his colleagues thought that it was perhaps an April Fool's Day joke and questioned him about it on the main parade ground. Mr Maynard was with the group. He thought that it was a joke but still thought that it was a direct order. When he studied business law as part of his accountancy course, he had learnt that direct orders were not questionable. During cross-examination, Mr Maynard said that Sergeant Doubleday confirmed that it was a practical joke when he was confronted by three of the trainees on the course. He confirmed that he had hoodwinked them. Mr Maynard was part of the group at that time. Basically, he thought that it was a joke but then Craftsman McKay continued the joke.

In his statement prepared for the hearing, Mr Maynard said that their main job was to settle into their assigned sleeping quarters. After they were organised, Sergeant Doubleday said, they "… would be on R & R (Rest and Recreation) and the 02/90 Acfitt course starts on Monday 2nd of April." (Exhibit E, paragraph 12) At the hearing, Mr Maynard said that he expected to be shifted to Edinburgh during the following week. He agreed that this would mean interrupting the course that was starting on 2 April, 1990.

At the hearing and in a statement he presented (Exhibit G), Mr Maynard said that advantage had been taken of the situation:

"… to play a practical joke on the most gullible person of the 02/90 Acfitt course.

.I see this reading out aloud the piece of lose (sic) paper found within my 'service documents' was an Act of Negligence and a 'Breach of Duty of Care' owed to me.

Nevertheless, is the Court (AAT) going to remain negligent, as I demonstrated some Post Traumatic Widespread Syndrome to convince Timothy Davis in believing I meant to have the motor vehicle accident. I belie (sic) my entrance examination results of 110 out of 112, 98.2% would demonstrate I was not an easily fooled soldier. Before enlisting in the Australian Army, I took a Patriotic Oath with Admiration.
1.This Oath left me vulnerable towards Superior Personnel's 'Direct Orders' from an authoritative member was unquestionable of the Australian Defence Force.
2.When I accepted to enlist as a Recruit and learning to be a soldier at 'Blamey Barracks' [1RTB] Kapooka even though I felt confident with the results I obtained.

My first attempt to enlist was denied.

Subsequently I tried the following year. This proved I was persistent. I was a fool for marking, if I was not chosen to be an Officer-Cadet I would still enlist as a Recruit and attend 'Basic Training' at 'Blamey Barracks'.
This is a form of conspiracy." (Exhibit G)

In his oral evidence at the hearing, Mr Maynard explained that the piece of paper to which he referred contained a statement that he was the most intelligent person on the course and also the most gullible. Craftsman McKay had been described in the previous Tribunal hearing by Craftsman Fontalvo as the course joker and the course larrikin. Craftsman McKay felt that he could play him for a fool to boost his own ego. When the paper was read out, Mr Maynard said, he felt small. Mr Maynard felt that his gullibility had also been an issue in an incident during the tenth week of his three month basic training at Kapooka. Some went to catch yabbies and they had to drink a beer for each yabby caught. There was a photograph of that occasion which celebrated another recruit's birthday (Exhibits H and I).

On another occasion, Mr Maynard said, they were required to do sit ups or push ups and have a beer in between. When he had to get more beverages, the platoon commander shouted that he was gullible. Mr Maynard said that they shouted remarks about everyone and about their characters. He felt small and scolled his drinks to drown out his sorrows.

His sorrows were as a result of his earlier obeying a direct order to break up with his girlfriend. He could not recall the precise date on which he was given that order but it was given before he went on leave at Christmas in 1989. It was given on the day that he had to choose where to go. Between the order's being given and the yabbying party, he looked for a substitute girlfriend and is still looking.

Mr Maynard said that they were not read any Standing Orders when they arrived at Forest Hill. That Standing Orders be read is a requirement under the Australian Military Regulations. Had they been read to him, he would have known what he should do if he found himself running late for a parade.

Mr Doubleday

Mr Doubleday was a sergeant serving with the Army and was posted to the RAAF base at Wagga. He said that he was an Administrative Sergeant (Chief Clerk) and, in relation to the trainees, processed documentation relating to their marching in and out and their leave. He kept a daily roll book of their attendance. In so far as their training was concerned, he had nothing to do with it. He had no authority to transfer them. Apart from sending trainees on holidays to their next of kin, he had no power to make decisions as to their postings. At most, he could make recommendations to Melbourne. At the end of their training, trainees would normally be posted to Canberra, Queensland or Sydney but not to Edinburgh. Mr Maynard would only have gone back there if his next of kin were there and he was on holidays.

Mr Doubleday denied saying that Mr Maynard was the most intelligent and the most gullible person on the course. He would not have done so as a document would not have fallen from a sealed envelope in which the documents were kept, he would not have given an illegal order and he did not know the person who was alleged to have written the comment.

With regard to the suggestion that the Army encourages alcoholism, Mr Doubleday stated that it definitely did not do so. The Army has clubs and encourages social functions but the last thing that it does is to encourage drinking. There are also policies in the Army that a person should not drink within 8 hours of commencing duty. Although Mr Doubleday did not refer to it, we note that, in his application for enlistment, Mr Maynard initialled a statement acknowledging:

"… that alcohol and drug abuse, homosexuality, theft, fraud, forgery and related offences are not tolerated in the Army and that, if I am involved in any of the above, I may be discharged from the Army." (Exhibit 2, page 58)

Mr Doubleday denied playing a practical joke regarding a parade on April Fool's Day. He likes to have a joke with friends, he said, but he does not believe in practical jokes and, as an NCO in the Army, it was inappropriate that he do so. Once he knew people, he would have a bit of a joke with them but not in the sense of setting them up. When he was in uniform, he was at work and a soldier and he treated that seriously even if, when he was out of work, his friends thought he was a "fun guy". Mr Doubleday agreed with Mr Maynard that personnel were sometimes told that there would be a roll book on Anzac Day and that attendance would be noted. He said that was not a practical joke but a management tool. Its purpose was to get personnel to attend Anzac Day without actually ordering them to go.

Normally, there was a parade on the first Monday of each course and then each Tuesday. It would normally take an hour to prepare for a parade as brass has to be cleaned and boots polished as well as the uniform ironed. If it were just a mustering, it would only take approximately a quarter of an hour as the brass would not need to be cleaned.

Mr Doubleday said that he probably talked to a senior police officer after Mr Maynard's accident but did not recall who he was and did not directly recall talking to the police at all. He denied directing the police in their enquiries or telling them that it was not within their jurisdiction to investigate the accident. It clearly was as the accident happened on a civilian road. If he had talked to the police, he only did so in order to answer their questions and give them information. The civilian police talked to Military police and he was not involved in any such discussions.

Mr Doubleday rejected Mr Maynard's proposition that he had directed former trainees to forget what he had said during his introductory remarks at the RAAF School. He said that he had never given an illegal order.

Mr David Evans

Mr Evans was a fellow trainee with Mr Maynard at the RAAF School and is now a student. He had met Mr Doubleday, who he said was an Army Sergeant, and agreed that Sergeant Doubleday had taken his documents on his arrival. Mr Evans said that he was told to meet on Monday and was not aware of any suggestion of a parade on the Sunday beforehand. He had no recollection that Sergeant Doubleday had told them that Mr Maynard was the most intelligent person on the course and also the most gullible. Nothing was said about transfers to Edinburgh. He did not recall Sergeant Doubleday's ever playing practical jokes on them. Sergeant Doubleday had a "funny personality" but he was a serious person in his job.

Mr Evans went out on Saturday, 31 March, 1990 and went with Mr Maynard to a hotel. The next morning he was told of the accident. He knew that Craftsman McKay was spending the weekend at a motel with a girlfriend. Mr Evans could not recall speaking to the civilian police although the RAAF police spoke to them about what they had done during the day and what the atmosphere had been like. He told them that he had lunch, drinks with friends and had gone home. Mr Maynard had gone back to town and had the accident when he was going home.

Mr Gatehouse

Mr Gatehouse is now a licensed aircraft maintenance engineer. He did not live on the RAAF base but was a fellow trainee with Mr Maynard, whom he recalled. Mr Gatehouse also recalled Sergeant Doubleday whom he first saw when he marched into the RAAF School and to whom he gave his documentation. Sergeant Doubleday spoke to them as a group and explained where their quarters would be and the location of the mess. At the beginning of the course, it was mentioned to them that they could live off base. Those who had girlfriends and fiancees were given permission to do so. People were not given the opportunity to live at other bases such as Edinburgh. Sergeant Doubleday told them that he would see them on Monday. Mr Gatehouse did not recall that there was a parade on the Sunday morning. He was told that there was a parade on the Monday morning and that he would need his gear for the Monday. He knew Craftsman McKay but knew nothing about his continuing any practical joke.

Mr Gatehouse's impression of Sergeant Doubleday was that he was firm just like any administration officer. He was funny but he became funnier as the course progressed and they got to know him at, for example, Friday afternoon functions. Sergeant Doubleday would "joke around" on certain occasions but he would not play a practical joke at one person's expense; perhaps a group's expense but not one person's. He also knew Mr Fontalvo whom he described as a "nice bloke in general, I suppose". They had a lot to do with each other during the course but have not kept in touch. He last saw him three years ago when he left the Army. He was reliable in so far as he knew him.

Mr Gatehouse said that there could have been some talk about Mr Maynard's accident on the Monday morning before the course started. He thought that Sergeant Doubleday told them of the accident and of Mr Maynard's being in the Army hospital at Wodonga or wherever it was. They were not given an order not to talk about the accident.

Mr Gatehouse said that there was a RAME training school at Wodonga which is approximately 200 kilometres from the RAAF base at Wagga.

Mr Fontalvo

Mr Fontalvo, who is now an aircraft engineer, said that he had arrived at the RAAF School a week before the course started. Mr Maynard could have arrived on the following Thursday as trainees arrived at different times during the week. He did not recall any offer being made to send them to the Edinburgh base. In his view, that could not have been the case as the RAAF School was the only place where the Army trained with the RAAF. Edinburgh is an operational base and has only 3 or 4 Army personnel posted to it. They are in more senior positions than those who attended the course at the RAAF School.

Mr Fontalvo said that he did not recall Sergeant Doubleday's telling them that Mr Maynard was very intelligent and very gullible. In so far as Standing Orders were concerned, he could not recall if they were read out before the course. They change from base to base. Once, it was normal practice to read them out but now personnel are just given them to read when they arrive at a new base. He was not ordered not to talk about Mr Maynard's accident. Mr Fontalvo said that he could not recall that a parade was held on 1 April, 1990 but he could recall a parade being held on the next day, Monday, 2 April, 1990. In his mind, he said, he was clear that they were told to report at 07:30 on Monday morning.

Mr Fontalvo could not recall Sergeant Doubleday's playing practical jokes. Craftsman McKay was the course's biggest larrikin.

Events before the accident

Mr Maynard

In his statement prepared before the hearing, Mr Maynard said that his memory of how he spent the rest of the day is a bit vague. He did recall going to the boozer in the evening and having breakfast with Craftsman McKay the following morning. Mr Maynard recalled Craftsman McKay's offering him his car so that they could go to a more lively disco on the Saturday evening. In his statement, he continued:

"15. That afternoon while collecting his car, I dropped him and the female he was seeing, immorally, behind his girlfriend's back, who was located in Two Wells South Australia.
16.I dropped them off out the back of the motel. Because my curious mind had never seen the inside of a motel-room, I wanted a look. Conveniently I was dressed in shorts, I naturally asked for a spa which was in the room. As I was leaving, Cfn A McKay reminded me that I had to collect him before the parade scheduled for tomorrow morning at 08:30 hrs." (Exhibit E)

Below the time, was written "07:00 hrs". Mr Maynard said that he had not written that time but it signified the time at which he was to pick up Craftsman McKay for the parade at 08:30 hours. Craftsman McKay needed the time to get ready for the parade.

In his oral evidence, Mr Maynard said that, when Craftsman McKay lent him his car, he asked him to pick him up on Sunday. Mr Maynard still thought it was a joke and thought that Craftsman McKay was continuing it. He went to a nightclub but, initially, did not drink. People were paying for drinks and they were mounting up. He was told to drink them or give them away. Most he gave away. He met a girl. While he drank beer, she had a bottle of spirits in her handbag.

Mr Maynard drove back to the base with friends and picked up his beret to take back to the nightclub to show the girl that he was with the Army and not with the RAAF. When he arrived back at the nightclub, she was outside with her girlfriends. She got in the car with him and he showed her the beret. They had an intimate relationship before he drove her to her home near Kapooka.

The accident

Mr Maynard

After explaining about the April Fool's Day joke, Mr Maynard wrote in his statement dated 19 July, 1996:

"HOPE THIS MAKES THE PICTURE CLEARER OF WHY I SUDDENLY REMEMBERED & DURING THE PROCESS OF TURNING AROUND, LOST CONTROL & COLLIDED WITH FORCE INTO A STATIONARY TREE. EVEN THOUGH MY GLASSES WERE PERSCRIBED A WEEK EARLIER, BUT THE ARMY OUGHT TO OF SUPPLIED ME GLASSES, AFTER MY FIRST OPTICLE ASSESSMENT I UNDERTOOK BEFORE ENLISTING." (T documents, page 29)

In his statement of 30 October, 1996, Mr Maynard explained that, the fact that the accident occurred at 04.15 hours established that he was on his way to work (T documents, page 58). During the hearing and again in his letter dated 13 September, 2000, Mr Maynard said that he lost control of the vehicle when he "… rationally decided the most direct route (a route of convenience to return) would be along the 'Huoney Bridge Road' because it was the most direct route."

After dropping the girl at her home, Mr Maynard said at the hearing that he drove back to the base. He then realised that he had left his beret with her. He turned in order to get it but was not sure where it was. Then he remembered that he had another beret in his locker because he remembered he had the parade the same morning. He then turned to go back to the base to go to the parade. If he did not obey an order, Mr Maynard said, he would be fined or given 2 years' imprisonment.

Mr Maynard said that the accident did not occur on the Sturt Highway but on Eunomy Bridge Road. Eunomy Bridge Road was a more direct route back to the base. His mother had told him that it happened on Eunomy Bridge Road. The RAAF base was off the Olympic Highway that comes off the Sturt Highway. Mr Maynard said that he believes in hindsight and, with hindsight, he believes that he was initially trying to slow down, stop and turn. There was not enough tread on the tyres and that caused him to skid.

Formal records relating to the accident

The traffic collision report prepared by the police stated that the accident occurred at 4.15 on the Sturt Highway 300 metres from the Eunomy Bridge Road. It occurred when Mr Maynard's vehicle was "… travelling east at unknown speed. Lost control & collided with tree on southern side of road." (T documents, page 15) The diagram attached to the report showed that the vehicle skidded approximately 140 metres before hitting a tree on the opposite side of the road. No breath test was taken at the time of the accident. Captain Rieck, who was appointed to investigate the accident on behalf of the RAAF, reported that the police had taken a blood sample. The reading was shown to be 0.109 grams of alcohol per 100 millilitres of blood (T documents, pages 7 and 17).

Mr Jim Evans

Mr Evans is now a publican but had been a policeman. He was the police officer who attended the scene of the accident and investigated it. The accident, he said, took place at a distance about 10 minutes drive from the RAAF School. He spoke with Sergeant Doubleday on the telephone to see whether Mr Maynard was stationed there and the period for which he had trained. In response to questioning by Mr Maynard, Mr Evans said that Eunomy Bridge Road does not go past the RAAF base. It does not run adjacent to the Olympic Highway. Eunomy Bridge Road runs north south from Junee to Albury and is on the eastern side of Wagga. The RAAF base is on the eastern side of Wagga and the Army base is on the Olympic Highway on the opposite side of the town. They are not on opposite sides of the road.

CONSIDERATION

During the course of the hearing and in his written submissions, Mr Maynard has raised several arguments challenging Comcare's decision. They include an argument that the Department of Defence owes him a duty of care and that it was in breach of this by not reading standing orders to him and in allowing a practical joke to be played upon him. The Army was under a duty, he submitted, to provide him with a safe place of work and a workplace he could enter and leave without risk to his health. The Army permitted its soldiers to frequent places serving alcohol and encouraged it by having a discount card at certain places in Wagga. In permitting that, it did not provide a safe place to work.

Furthermore, Mr Maynard submitted, the Army had also ordered him to break up from his girlfriend. It seemed implicit in his submission that the Army carried some responsibility for his drowning his sorrows on the night of the accident. Mr Maynard has also advanced an argument that the practical joke took advantage of his gullibility and so amounted to an assault and battery.

Mr Maynard has suffered extremely serious injuries as a result of his motor vehicle accident. Those injuries have had tragic and far reaching consequences in his life. His expectations of a career in the Army have been shattered and his dreams of a happy married life have not yet been realised. Understandably, Mr Maynard feels that he has suffered because of the accident and there can be no question that he has suffered very greatly indeed.

As a tribunal whose powers are defined by statute, we may only review those decisions that are made pursuant to statute and that we are given the power to review (AAT Act, s. 25). We are unable to consider matters raising issues such as negligence and breaches of duty of care unless permitted to do so by a provision in a statute. It follows that, in considering whether or not Comcare made the correct decision, we can only do so within the framework of the Act under which it made its decision. When we ask ourselves whether Mr Maynard is entitled to compensation under that Act, our answer to that question depends not upon the extent of his suffering but upon the provisions of the legislation.

The starting point of our consideration is s. 14(1) of the Act providing 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
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)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."

The notion of "the employee's employment" was considered by the High Court in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 (Dixon, McTiernan, Williams, Webb and Fullagar JJ). Dixon J said:

"… The respondent's work apparently required him to spend the day or portions of it visiting customers of the appellants and his absence from the appellants' place of business at Lidcombe obviously was likely to include the luncheon interval. His use of the motor cycle so long as it was confined to the purposes of his duties was undeniably within the course of the employment. The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties …
No one denies that when the duties of the present respondent took him to the shop of one of the appellant's customers and kept him there over a meal time any course which he adopted for the purpose of obtaining lunch, provided that it was reasonably related to the exigency occasioned by his duties, might be considered to be in the course of his employment. But to make what he did in connection with obtaining lunch part of the course of his employment it is necessary that it should be reasonably connected with the particular situation which the performance of his duty to his employer had created. … The question is whether the course adopted by the employee was reasonably incidental to the performance on that occasion of his duties. This cannot be stretched to make everything he chooses to do during the interval he takes for lunch incidental to his employment. If he so far deviates from what is reasonably incident to the execution of his duties as to proceed on a purpose of his own not fairly resulting from the nature or incidents of the employment, that purpose cannot be considered in the course of the employment. There is a great difference between, on the one hand, the worker's taking advantage of an allowable interval for lunch in order to make it the occasion of an excursion for his own purposes and on the other hand his acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same time provide for his own reasonable wants. Such questions must involve matters of degree …" (pages 133-134)

In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (McTiernan, Kitto, Taylor, Windeyer and Owen JJ) the High Court considered similar issues when it considered s. 6(1) of the Workers' Compensation Act 1926 (NSW). Section 6(1)(b) of that legislation raised the notion of a personal injury arising out of or in the course of employment. In the course of his reasons, Windeyer J said:

"When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed." (page 641)

On the basis of the evidence we have, we do not consider that a contributing factor to Mr Maynard's suffering his injury was an event or occurrence that he was required, authorised or expected to do as part of his duties. It was not a characteristic of the work he performed. Indeed, we are satisfied that he was not on duty on the night of the accident. On the basis of his own evidence, we find that he was on weekend leave and had gone into Wagga to socialise generally and, perhaps, to meet a girl who would replace his girlfriend. He did socialise and he did meet a girl although not one who, in his heart, replaced his girlfriend. Social skills are no doubt a useful skill as a member of the Army but socialising as an activity was not something that Mr Maynard was required to do as part of his employment and it was not a characteristic of his employment or of the conditions in which it was performed. Meeting a girlfriend was not something that he was required to do.

Mr Maynard has given evidence that he and his fellow recruits were encouraged to drink beer. We have not made a finding of fact in that regard but we are satisfied that his drinking beer off base when he was off duty could not be said to be a characteristic of the work he performed or of the conditions in which it was performed. It was not part of his duties and was not incidental to them.

That brings us to the journey that Mr Maynard was on at the time of the accident. Without limiting the meaning attributable to the expression as it is used in the definition of "injury", s. 6 sets out the circumstances in which an injury may be treated as "having arisen out of, or in the course of, his or her employment". Among those circumstances are that the injury was sustained:

"(b) while the employee:
(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;
(ii)was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;
(iii)was travelling between the place where he or she normally resides and another place, being a place where he or she resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment;

(iv) …"

The expression "place of residence" is defined in s. 4(1) to mean, in relation to an employee:

"(a) the place where the employee normally resides;
(b)a place, other than the place referred to in paragraph (a), where the employee resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment; or

(c)any other place where the employee stays, or intends to stay, overnight, a journey to which from the employee's place of work does not substantially increase the risk of sustaining an injury when compared with the journey from his or her place of work to the place referred to in paragraph (a)".

The expression "place of work" is defined to include "… in relation to an employee, … any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment." (s. 4(1)).

Section 6(2) provides that:

"Subparagraph (1)(b)(ii), (iii), (iv), (v) or (vii) does not apply where the travel:
(a)was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route; or
(c)was interrupted in a way that substantially increased the risk of sustaining an injury."

Section 6(3) provides that:
"Subsection (1) does not apply where an employee sustains an injury:
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury."
Mr Maynard submitted that his case was on a par with that of Comcare Australia (Defence) v O'Dea (1997) 150 ALR 318. Mr O'Dea, who was a member of the Army, was injured when he was returning to the RAEME Training Centre at Bandiana from his parents' home. The Tribunal found that he normally resided with his parents but resided temporarily at the RAEME Training Centre, which was also his place of employment. Northrop J decided that the fact that Mr O'Dea resided temporarily at the RAEME Training Centre did not prevent his parents' home being the place where he normally resided and so his place of residence for the purposes of s. 6. The RAEME Training Centre, he also found, is no less his place of work for the purposes of that section simply because it is also the place of his temporary residence. Therefore, the Tribunal had not been in error in finding that Mr O'Dea had been injured while travelling between his place of residence and place of work, other than during an ordinary recess in his employment as provided in s. 6(1)(b)(ii).

Applying his Honour's reasoning, the RAAF School was Mr Maynard's place of work. It was also his place of residence, whether temporary or otherwise. It is clear both from the judgement in O'Dea and from The Commonwealth v Wright (1956) 96 CLR 536 per Fullagar J at 553-554, Kitto J at 558-9 and the dissenting judgements of Dixon CJ and McTiernan J at 547-550, to which Northrop J referred, that there is no delineation between those parts of the RAAF School that should be designated as purely residential and those as purely work related. Whether Mr Maynard was travelling east along the Sturt Highway towards the RAAF School as the police report shows or was travelling to it by means of Eunomy Road as Mr Maynard recalls, he was travelling to a place that was both his place of work and his place of residence.

The insurmountable problem for Mr Maynard, however, is that he was not travelling to his place of work from his place of residence. That is so regardless of the location of his normal place of residence i.e. whether it is in South Australia or at the RAAF School at Forest Hill in New South Wales. He was not travelling from any place of residence, however described, to his place of work. We find that he was travelling from having an evening out in and about Wagga. Therefore, he does not come within the provisions of either ss. 6(1)(b)(ii) and (iii).

That leaves s. 6(1)(b)(i) and that will only apply if Mr Maynard were absent from the RAAF School during an ordinary recess. Senior Member Handley considered the meaning of "ordinary recess" in Re Kelly and Australian Telecommunications Corporation (1991) 14 AAR 198:
"The deeming of injury during an 'ordinary recess' away from the employer (sic) premises by the 1988 Act, recognised, sensibly, that employees do leave the workplace during the day but remain within the course of the employment, for example to purchase a meal or to take a walk. It is extraordinary that such common events being undertaken, I would suggest by a majority of the workforce, were not previously recognised by the legislation: refer Re Campbell and Australian Postal Commission (1988) 9 AAR 522 (Note); 15 ALD 705 at 707.
In Drummond v Drummond [1960] VR 462 at 463-464 the Full Court of the Victorian Supreme Court determined that a 'recess' refers to
'a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation such as ordinarily occurs at regular times, such as lunchtime morning or afternoon tea or 'smoko'. It is a period of rest incidental to a period of labour …'
The Court concluded also (at 464) that the word 'ordinary' is more apt to convey the idea that the period in question is one which will ordinarily be described as in recess'.
The Court concluded that the period intervening the cessation of farming duties at lunch time on a Saturday and an intention to resume duties (milking) some five or six hours later did not amount to an ordinary recess.
In Landers v Dawson (1964) 110 CLR 644, the High Court, upholding the approach taken in Drummond v Drummond (supra), similarly found that an intervening period of four to five hours between ceasing work and the intended time of resumption did not amount to an ordinary recess. Deputy President McMahon in Re Cullen and Commonwealth (1988) 15 ALD 389 at 395 succinctly, and I believe correctly, said that the phrase 'ordinary recess' 'implies an act of a temporary and periodic nature'.
Throughout all of these decisions however is the recurring theme that an ordinary recess is really no more than a temporary interruption to a period of employment. Emphasis should be attached to the words 'temporary' and 'interruption' because an ordinary recess does not amount to an ending and recommencement of the employment." (pages 204-205)
On the evidence of Mr Maynard, we find that he and his fellow trainees were on rest and recreation from some time on either 29 or 30 March, 1990 and certainly over the weekend of 31 March and 1 April, 1990 until the course started on 2 April, 1999. Even if they were required to attend a parade on Sunday 1 April, 2000, the time between their starting their rest and recreation and resuming duty was not an ordinary recess. It was not a period of rest incidental to their employment but a break between two distinct periods of work and so a break in their employment. It follows that Mr Maynard's circumstances do not come within the provisions of s. 6(1)(b)(i) and his injury does not arise out of or in the course of his employment within the meaning of s. 6.

Before leaving this matter, we note that we have not made findings of fact on a number of issues raised by Mr Maynard. Among these is the issue whether there was an attempt to play an April Fool's day joke on Mr Maynard or not or whether he was encouraged to drink alcohol. In our view, there is no need to make findings of fact on such issues as they are not necessary to decide in order to review Comcare's reviewable decision. Even if they occurred as Mr Maynard alleges, he would not, in our view, be entitled to compensation under the Act. We note, however, that Mr Maynard is adamant in his view that what he alleges is accurate and that he is unlikely to be convinced to the contrary. Although less adamantly expressed, Sergeant Doubleday and Mr Maynard's fellow trainees on the course are equally firmly of the view that events did not happen in the manner Mr Maynard recalls. We have simply recorded both views.

For the reasons we have given we affirm the decision of the respondent dated 12 December, 1996.

I certify that the seventy four preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President) and
Dr J T B Linn (Member)
Signed:          .........................................
  M Martinez     Associate
Dates of Hearing       26, 27 July, 2000
Date of Decision       8 December, 2000
Applicant       In person
Counsel for the Respondent             Mr Lenczner
Solicitor for the Respondent             Australian Government Solicitor

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Citations

Maynard and Comcare [2000] AATA 1084

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Roncevich v Repatriation Commission [2005] HCA 40

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34

[2000] AATA 1084

8 December 2000