MILITARY REHABILITATION AND COMPENSATION COMMISSION and ARCHER
[2010] AATA 525
•13 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 525
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6196
VETERANS' APPEALS DIVISION ) Re MILITARY REHABILITATION AND COMPENSATION COMMISISON Applicant
And
TREVOR DAVID ARCHER
Respondent
DECISION
Tribunal Hon R J Groom (Deputy President)
Dr R J Walters RFD (Member)Date13 July 2010
PlaceHobart
Decision The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
CATCHWORDS
COMPENSATION - member of Defence Force - living at army base - social gathering of army personnel at base - fall from third storey balcony - alcohol consumed - serious and permanent impairment - whether injuries arose out of or were attributable to any defence service - whether would not have occurred but for defence service - injuries attributable to defence service - injuries would not have occurred but for service - decision of Veterans' Review Board affirmed
Military Rehabilitation and Compensation Act 2004, ss 5(1), 6(1), 27(a), (b), (c), 335(3), 339(3), 357(3)
Veterans Entitlements Act (1986), ss 8(1)(d), 9(2), 70(5), (7)
Safety Rehabilitation and Compensation Act (1988), s 6(1)(a)
Seafarers Rehabilitation and Compensation Act 1992
Roncevich v Repatriation Commission (2005) 222 CLR 115
Comcare v Mather (1995) 56 FCR 456
Hatzimanolis and ANI Corporation Limited (1992) 173 CLR 473
Henderson v Commissioner for Railways WA (1937) 58 CLR 281
Woodward v Repatriation Commission 2003 FCAFC 160 (30 July 2003)
Repatriation Commission v Law (1980) 31 ALR 140
Military Rehabilitation and Compensation Commission v Roberts (2007) 238 ALR 637
Walsh v Rother District Council [1978] 1 ALL ER 510 at 514
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
CAL No 14 Pty Ltd and Anor. v Scott and Motor Accidents Insurance Board [2009] HCA 47
Ronchevic v Repatriation Commission [2003] FCAFC 146 (30 June 2003)
Repatriation Commission v Tuite (1993) 39 FCR 540
REASONS FOR DECISION
13 July 2010 Hon R J Groom (Deputy President)
Dr R J Walters RFD (Member)introduction
1. Mr Archer, then a serving member of the Australian Regular Army, was seriously injured on 6 March 2005 when he fell from the third floor balcony of his accommodation at the Gallipoli Barracks at Enoggera in Queensland.
2. He claimed compensation under the Military Rehabilitation and Compensation Act 2004 ("the Act"). The claim was rejected on 19 September 2006. A Delegate of the Commission then reconsidered but affirmed that original determination. On 4 September 2007 the Veterans' Review Board ("VRB") set aside the determination and substituted a decision that Mr Archer had suffered a "service injury" under section 27(c) of the Act and therefore was entitled to compensation.
The Commission has sought a review by this Tribunal of that decision of the VRB.
background
3. Mr Archer is 26 years of age.
4. He enlisted in the Australian Regular Army on 4 March 2003. Mr Archer was discharged as "medically unfit" on 3 January 2007,
5. Mr Archer completed his basic training at Kapooka in New South Wales. He was then posted to the Simpson Barracks in Melbourne for his initial training as a radio operator. After some two months of initial training he twisted and dislocated his right ankle in an accident and had to undergo an ankle reconstruction operation. Following his accident Mr Archer was posted to Holsworthy Barracks in Sydney for six to seven months of rehabilitation before returning to Melbourne to complete his remaining initial employment training.
6. On 8 October 2004 Mr Archer was posted to the Australian Army Base at Enoggera in Queensland as a member of the First Joint Support Unit. This posting was expected to continue until 14 January 2008.
7. Whilst at Enoggera Mr Archer lived on the base at the Gallipoli Barracks in an accommodation block known as H.21.
8. At the date of his fall Mr Archer was 20 years of age. In the fall he suffered several injuries including a closed intracranial injury, post concussional syndrome, a resultant hemiparesis of the right arm and leg and a distal digital fracture.
9. At all relevant times Mr Archer was a member of the Defence Force and therefore a "member" within the meaning of that term in s 5(1) of the Act. He was rendering "peace-time service" as defined in s 6(1) of the Act. The applicable standard of proof in this application is to the "reasonable satisfaction" of the decision maker. (See s 335(3) of the Act).
10. By section 339(3) of the Act it is necessary for the decision-maker to be reasonably satisfied that an injury was defence caused only if the material "... raises a connection between the injury, ... and some particular defence service rendered by the person ..." and there is in force a Statement of Principles ("SOP") that "upholds the contention that the injury ... is, on the balance of probabilities, connected with that service".
11. After examining the relevant SOP and available medical evidence the VRB found that the injuries were connected with Mr Archer's relevant defence service. As the requirements of Section 339(3) were not raised as issues by either party the contest was confined to Section 27 of the Act. The finding of the VRB that the requirements of section 339 had been met is not an issue in contention between the parties.
12. Section 32 of the Act excludes liability to pay compensation if the injury "... resulted from being under the influence ... of ... alcohol ...".
This exclusion does not apply in a case where the injury results in "... serious and permanent impairment". (Section 32(1))
13. It is agreed between the parties that Mr Archer's injuries have caused a serious and permanent impairment and therefore the section 32 exclusion does not apply. (See Transcript pages 73-74).
the legislation
14. Section 27 of the Act relevantly provides as follows:
"For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i)the injury was sustained due to an accident that would not have occurred; or
(ii)the disease would not have been contracted;
but for:
(iii)the person having rendered defence service while a member; or
(iv)changes in the person’s environment consequent upon his or her having rendered defence service while a member ..."
the issues
15. The principal issues to be determined by the Tribunal are:
(a) Did Mr Archer's injuries result from an occurrence while he was rendering defence service? (s 27(a))
(b) Did Mr Archer's injuries arise out of or were attributable to any defence service rendered by him? (s 27(b))
(c) Would Mr Archer's injuries not have occurred but for his defence service or changes in his environment consequent upon his defence service? (s 27(c))
THE FACTS
16. Before considering the principal issues involved in this application the Tribunal will consider and make findings on key facts. These include:
(a) The circumstances surrounding Mr Archer's fall and injuries.
(b) At the relevant time was Mr Archer subject to military discipline?
(c) Was Mr Archer required to live at the base at Enoggera?
(d) The design of the accommodation units at the base including the balconies.
(e) Was there was a culture at the base which encouraged army personnel to socialise together and consume alcohol?
17. After making findings on those factual issues we will then proceed to consider each of the principal issues referred to in paragraph 15 above.
the circumstances surrounding mr archer's fall and injuries
18. Mr Archer worked on Friday 4 March 2005 but had no specific duties to perform on the weekend of Saturday 5 March and Sunday 6 March 2005.
19. On Saturday 5 March 2005 at about 6.00 pm Mr Archer, accompanied by Corporal B J Newman and Craftsman T J Moor, went to the town of Enoggera and purchased some takeaway Thai food from a local restaurant and also a quantity of alcohol. The three then returned to H.21 and proceeded to eat the food and consume the alcoholic beverages that had been purchased. They continued to socialise and drink until about 8.00 pm when they were joined by several other army colleagues from 1 JSU.
20. The Tribunal accepts as accurate the following account of the events of the night of 5 March 2005 and the morning of Sunday 6 March 2005, including Mr Archer's fall, as set out in the "Service Police Report" prepared by Corporal C B Harman and dated 11 May 2005 (Exhibit A2 Document 3):
"1. On 06 Mar 05, enquiries commenced into the serious injury sustained by a member of 1 JSU Gallipoli Bks, Enoggera Qld, resulting in the member being admitted to the Royal Brisbane Hospital (RBH Intensive Care Unit (ICU).
2. The circumstances surrounding this matter are, about 2000 h 05 Mar 05, 8231349 CPL D J NEWMAN, 8439787 SIG T D ARCHER, 8234618 CFN T J MOOR, 8491820 PTE K PICKERING, 8442959 SIG M P JAMES and 8262018 SIG K A GAMBLING, all members of 1 JSU, Gallipoli Barracks were socialising on the third story balcony of building H.21, 1 JSU OR Accn Lines, Gallipoli Barracks. During the evening, all members present were consuming alcohol and about 0120 h 06 Mar 05, ARCHER attempted to sit on the hand railing of the balcony area at which time he lost his balance and fell from the third story balcony to a garden below. ARCHER was later treated by the Queensland Ambulance Service (QAS) at the scene before being transported to the RBH ICU, and placed into an induced coma. Later that same day ARCHER was transferred to the Princess Alexandra Hospital (PAH) and admitted into the Brain Injury Unit.
3. Enquiries conducted with MOOR have revealed, about 1800 h 05 Mar 05, MOOR, ARCHER and NEWMAN attended a local Thai Restaurant where they purchased dinner and some alcoholic beverages before returning to building H.21. MOOR stated upon arriving back at building H.21, the three continued to consume a quantity of alcoholic drinks with their dinner. MOOR stated about 2000 h, that same day, they were joined by JAMES, GAMBLING and PICKERING on the balcony of building H.21 and throughout the evening observed ARCHER sitting on the balcony railing at least two or three times. MOOR stated ARCHER would sit on the top railing of the balcony facing inwards and holding on the railing with at least one hand. MOOR further stated about 0120 h 06 Mar 05, he observed ARCHER enter the balcony from the common room area and again attempt to sit on the top railing of the balcony. MOOR further stated as ARCHER raised himself onto the top railing it appeared he raised himself too far and he lost his balance. He stated ARCHER's feet raised up towards the ceiling before he fell rearward over the railing. MOOR stated he observed ARCHER attempting to grab hold of the bottom handrail to stop his fall; however, he was unable to hold himself long enough for others to be of assistance. MOOR further stated he then looked over the balcony railing and saw ARCHER lying face down in the garden bed below. MOOR stated PICKERING, JAMES and himself ran downstairs to render assistance to ARCHER and found that he was breathing and had a pulse. MOOR further stated he then contacted 2 HSB and notified them of the incident before calling the QAS. MOOR further stated about 0140 h, that same day, ARCHER was transported by QAS to RBH.
4. Enquiries conducted with PICKERING have revealed, about 2100 h Mar 05, she attended building H.21 to socialise with ARCHER and NEWMAN where a short time later they were joined by MOOR, JAMES and GAMBLING on the balcony of building H.21. PICKERING stated she observed ARCHER and NEWMAN drinking bourbon and coke throughout the evening and at one stage removed an alcoholic beverage from ARCHER and requested him to drink water, as she believed he had consumed enough alcohol for the night. PICKERING further stated a short time later she took a series of photographs of ARCHER on her mobile phone, depicting ARCHER on the balcony of building H.21 (photographs form part of the photographic supplement). PICKERING stated a short time later she observed ARCHER enter the balcony from his common room area where he began to raise himself up onto the top railing of the balcony by placing both hands on the railing whilst facing inwards towards the balcony. PICKERING further stated that ARCHER appeared to over balance and commenced to fall rearward prior to attempting to grab hold of the railing with his left hand. PICKERING stated ARCHER's hand slip(ped) from the railing before falling to the ground, chest first. PICKERING further stated she ran downstairs to assist ARCHER and checked his vital signs whilst MOOR called 2 HSB and the QAS for assistance. PICKERING stated she requested 8440960 SIG K J LEVERIDGE and 8441-11 SIG VELLA, both members of 1 JSU, Gallipoli Barracks, to obtain her blankets and place over ARCHER. PICKERING further stated that she later accompanied ARCHER when he was transported to the RBH by QAS.
5. Enquiries conducted with JAMES has revealed, about 2100 h 05 Mar 05, he attended building H.21 and commenced socialising with ARCHER, MOOR, NEWMAN, PICKERING and GAMBLING, and that all members present were consuming alcohol during the evening. JAMES stated about 0100 h 06 Mar 05, he saw ARCHER tip a glass of bourbon into a bin before obtaining a drink of water. JAMES stated that later he observed ARCHER consuming a stubby of heavy strength beer, before exiting the balcony area for the common room. JAMES further stated upon returning to the balcony from the common room, he saw ARCHER attempting to sit up on the top railing of the balcony by lifting himself onto the railing; however, he believed ARCHER lost his balance and commenced falling rearward. JAMES further stated he observed ARCHER attempt to grab hold of the railing with a hand to regain his balance; however, was unable to hold on and fell to the ground below. JAMES stated that whilst he was running downstairs to assist ARCHER, he saw VELLA and LEVERIDGE running up the stairs to obtain a blanket to place over ARCHER.
6. Enquiries conducted with GAMBLING have revealed she was present at building H.21 on the evening 05 Mar 05, and that all members present, apart from PICKERING, had consumed a large quantity of alcohol, including ARCHER. GAMBLING stated that later in the evening, she retired to a spare bed located in building H.21 and went to sleep for the night and wasn't made aware of the incident until the following morning".
21. It is evident from the series of photographs tendered in evidence that Mr Archer and the others present on the balcony had been engaged in some sky larking. Mr Archer was dancing to music and at one point had his pants down around his knees. Late in the night or early the next morning Private Pickering, who obviously considered that Mr Archer had consumed too much alcohol, took a bottle of “Carlton Cold” from him and suggested that he should drink water instead.
22. All of those present on the balcony were serving members of the Australian Army who also lived at Gallipoli Barracks. The group included a non commissioned officer Corporal Newman who was with Mr Archer throughout the evening and night of the 5 March and until the fall the next morning at 1.20 am. Mr Archer was relatively young and inexperienced being a Private of 20 years of age.
23. We are satisfied that Mr Archer had been drinking alcohol over several hours on the night of 5 March and including early on the morning of the 6 March 2005. His balance and judgment were impaired by that consumption of alcohol. The quantity of alcohol consumed was a contributing factor in Mr Archer misjudging the height of the top rail of the balcony and over balancing and falling backwards from the balcony on the third floor of H.21.
was mr archer required to live at gallipoli barracks?
24. The Tribunal found Mr Archer to be a frank and honest witness. Understandably, in light of the serious head injuries suffered, his recollection of the events immediately prior to and following his fall is unclear, however we consider the other evidence he gave about his experiences at Enoggera and life in the army to be truthful and reliable. We note Ms Maharaj QC for the applicant did not challenge Mr Archer’s credibility and indeed readily acknowledged that he: “…..gave his evidence in a full and frank way.” (Transcript page 101).
25. Mr Archer said in his written statement of the 4 November 2009, the truthfulness and accuracy of which he affirmed in oral evidence (Exhibit R3):
“My understanding at this time is that the rules require that any members that were single were required to live on base for their first 12 months of their posting to the unit.
My posting at the Gallipoli Barracks was my first posting in a unit as a soldier".
And later:
"... at the time I did not want to live on base and wanted to live off barracks. As a result I spoke to Sergeant Hayes who was my troupe (sic) sergeant and asked him if I could move out. He told me that I could not and that I must do 12 months living in on barracks.”
26. When cross examined by Mr Wallace for the applicant Mr Archer appeared less definite about the requirement to live in. He agreed with the proposition that the commanding officer, in certain circumstances, had a discretion to allow a soldier to live off the base. He acknowledged that Sergeant Hayes, his troop sergeant, had advised him to live on base and that no formal application had been made by him to live off the base. In re-examination Mr Archer said Sergeant Hayes had told him:
“You have to live in for 12 months. You was (sic) better off just to live in and then 12 months later – and then go about trying to move out”.
27. The following submissions were made on behalf of the Commission in final written submissions to the Tribunal dated 18 May 2010:
"71. The Respondent also contends that he was required to live in and, because the injury occurred on Base, that is sufficient causal connection. Presumably the argument is that being (sic) to live on Base means that his presence on the Base was part of his defence service and, therefore, the injury arose out of or was attributable to his defence service(s27(b)) or resulted from an occurrence while a member rendering defence service(s27(a)). However, at the time of the fall he was not on duty and not required to be on the Base. The Commission does not accept that his presence on Base at the time of the fall constituted defence service, that the fall arose out of or was attributable to his presence on the Base and that he was rendering defence service at the time of the fall.
72. The Respondent relies on a requirement in Defence Determination 2003/21, Condition of Service, ‘to live in because he had not completed his initial army training more than 12 months previously’. However, such a requirement did not exist in that Defence Determination at the date of his posting to 1 JSU. It was inserted by Defence Determination 2004/48 with effect from 10 December 2004. At the time the Respondent arrived at 1 JSU the requirements for living in were contained in Defence Instruction (General) Administration 29-2 (Living In Policy). That Defence Instruction gave Commanding officers a discretion to direct a member to live in for operational, training or other single Service policy reasons. There is no evidence that any such direction about living in was given to the Respondent by his CO. However, it is not disputed that he was actually living in at the time.
73. Assuming that the Respondent was living in on 10 December 2004 (when the amendments made by Defence Determination 2004/48 took effect) then under the transitional provisions of that Determination he was deemed to be required to live in until 10 December 2005, subject to the possibility of being required to vacate earlier if the accommodation was required by someone who was required to live in.
74. Whatever the reason he was living in, he would have been able to apply to live out at any time and any such application would have been determined on its merits. He says in his Statement that he asked to sergeant if he could move out and was advised not to do so for 12 months. This was no more than informal advice. No application to his CO for permission to live out was ever made".
28. After considering all of the material before it the Tribunal concludes that Sergeant Hayes did tell Mr Archer, then a twenty year old Private, to live on the base for 12 months and that after 12 months consideration could then be given to any requests made by him to live off the base. We are satisfied that after the discussion with Sergeant Hayes Mr Archer held the belief that is was necessary for him to live on the base for the first 12 months of his posting to Enoggera.
29. There is no doubt that the Enoggera army base was, at all relevant times, Mr Archer’s place of residence and also his place of work. The army provided the living quarters at the Gallipoli Barracks at Enoggera for serving members of the Australian Army.
at the relevant time was mr archer subject to military discipline?
30. Mr Archer acknowledged in his oral evidence that his work as a radio operator at the Enoggera base was basically “Monday to Friday”. From time to time there was a need for him to do extra duties, for example some guard duty. On occasions he was also involved with other soldiers in army exercises.
31. The evidence establishes to the Tribunal's satisfaction that Mr Archer was subject to military discipline when he was at the Enoggera base whether carrying out official army duties or not. The Tribunal accepts his evidence that, for example, if walking at the base in civilian clothes he could be disciplined for not walking correctly. Also, from his understanding and experience, he was subject to military discipline in his living quarters. He said:
"The officer on duty, you know, sometimes he would come down and walk through the lines. It would be late at night as well….. he would come down and walk through the rooms and have a bit of an inspection. (It), might be nine, ten, eleven o’clock at night".
32. That evidence of Mr Archer is again accepted by the Tribunal as reliable. Mr Archer’s oral evidence and also some of the documentary evidence tendered suggests that serving members of the Australian Army are always subject to military discipline. For example, Chapter 9 of the Garrison Standing Orders states as follows:
"9.01 Members of the ADF represent their respective services and the ADF and are required to maintain the highest standard of conduct and appearance at all times. Officers', Warrant Officers and NCO’s are to correct any lapse in the conduct or appearance of any subordinate”.
33. The Tribunal is satisfied that Mr Archer was subject to military discipline at the time of the social gathering on the balcony of H.21 on the 5 and 6 of March 2005 including at the time of his fall. This probability is acknowledged in paragraph 40 of the applicant's final written submissions:
"He was probably subject to military discipline at the time of his fall …"
The design of the accommodation units at enoggera including the balconies.
34. As has been mentioned Mr Archer was living at the Enoggera base in accommodation block H.21 at the time of his fall.
35. H.21 is a 3 storey building. It contains 6 accommodation units. On each floor there are 2 accommodation units, one on each side of the stairwell. Each accommodation unit consists of four bedrooms plus a common room and a bathroom/laundry.
36. Each floor also has a balcony with doors leading to each of the 2 accommodation units. It is obviously intended that the occupants of the two units have access to the balcony. The balcony is therefore a “common area” for use by the army personnel occupying the units on either side of it.
37. The balcony was 4385 mm long and had a width of 2830 mm. The balcony railing is made of heavy gauge steel and is 1050 mm high. The railing complies with the requirements of the building code of Australia.
38. Mr Archer and another soldier were living in their 4 bedroom unit on the third floor of H.21. Corporal Newman and Craftsman Moor were living in the adjoining unit on that floor of H.21.
39. There were no fans or any form of air conditioning in the accommodation units. In the heat of the Queensland weather the open balconies were frequently used for sitting and relaxing after work and for social gatherings. Mr Archer said in his oral evidence:
“… yes it was pretty hot, we had no air conditionings or fans or anything ... .it got pretty hot in the rooms in Enoggera.” (Transcript page 22).
Mr Archer said when speaking about the balcony on the third floor of H.21:
“….oh we socialised on the balcony many times, nearly every night” (Transcript page 16).
And further:
“Nearly every day after working, yes, we’d sit down and have a beer on the balcony.” (Transcript page 16).
40. Mr Archer emphasised the use of the balconies for social get togethers of army personnel living and working at the base:
“it wasn’t necessarily always at my place. Sometimes we would go downstairs to the balcony down there, or across to the other balcony – at one of the other live in lines, we’d go sit on their” (Transcript page 17).
41. Mr Archer said that he often sat on the rail of the balcony:
“Had you sat on the rail before? ... .yes many times” (Transcript page 19)
It is reasonable to infer from the evidence that on occasions others present would also sit on the rail of the balcony when a gathering took place. Mr Archer said that after his fall a rule was introduced:
“…..that you weren’t allowed to sit or lean on the rails” (Transcript page 19).
That evidence by Mr Archer is accepted by the Tribunal as reliable. We note that it was not contradicted by any evidence presented on behalf of the Commission.
was there a culture at the base which encouraged army personnel to socialise together and consume alcohol?
42. The evidence establishes to the satisfaction of the Tribunal that it was a reality of life at the Enoggera army base that army personnel would frequently socialise together to relax after work and at weekends and that it was usual for those present to consume alcoholic drinks.
43. Equally it is clear on the evidence that the misuse of alcohol by army personal had become a serious problem and that prior to Mr Archer’s fall determined efforts had been made by the Australian Army to reduce the:
“…serious professional, safety, health, fitness and social implications” (Exhibit A2 “Alcohol Use and the Management of Alcohol Misuse in the Army” Issue Number 5/94 18 July 1994)
44. Exhibit A2 tendered on behalf of the applicant commission includes a series of documents (documents 4 to 11) highlighting the strenuous efforts being made by the army, and indeed across other ADF services to address the misuse of alcohol and to try to reduce it’s many costs including:
“….loss of operational capability, OH&S obligations, social costs and monetary costs to the services” (Exhibit A2 document 6 page 2).
45. Whilst recognising those concerted efforts and the serious need for them, those efforts, which are continuing, do confirm the reality that the consumption of alcohol was and is a widespread practice across all of the Australian Defence Services.
46. Mr Archer, who again we stress was a frank and truthful witness, explained in his evidence the extent to which drinking alcohol was not only permitted but encouraged at the Enoggera base.
47. He referred in his evidence to frequently joining Corporal Newman and other colleagues to have a drink after work and at weekends. Mr Archer also spoke of the signallers playing various sports on Thursdays and then required to meet:
“At the Jimmy’s Club which was a boozer just for the signallers….for drinks” and “… team bonding…”
48. Mr Archer described the attitude to the drinking of alcohol at the base in the following terms:
“No one forced alcohol down your throat, but at the same time if you weren’t sort of in that group then, you sort of got outcast a bit. You sort of got ignored, people didn’t talk to you, so in the end, yes – I mean, there wasn’t too many people that didn’t drink anyway” (Transcript page 18)
49. Despite the official pronouncements and concerted efforts to reduce alcohol misuse by army personnel the reality was that a young person posted to the Enoggera base and living at the Gallipoli Barracks entered into a culture where socialising and drinking with army colleagues living and working together at the base was a regular incidental fact of army life. It is suggested that this is not very different from the Australian culture generally but that culture is accentuated when significant numbers of young people live together in close proximity in special circumstances of the kind found at the Enoggera base.
50. Both Mr Archer and also Ms Burton gave evidence of a culture of drinking at the Enoggera base. On some factual details, in particular the railing, Ms Burton’s recollection is not reliable. However we accept as truthful and accurate her evidence about a culture at Enoggera which encouraged colleagues to socialise and enjoy a drink together:
“…..when you were living on barracks it’s a social network, as well. So you're encouraged to drink in the common areas of your live in lines, which is the balconies. So eight people at least, would share that. You're encouraged to drink on Thursday’s, especially, because it is compulsory to go to the boozer after sport. You're encouraged to drink together and in numbers…..” (Transcript page 58)
51. Apart from the oral evidence there is evidence within the documentary evidence before the Tribunal which indicates drinking was permitted and accepted as part of life at the Enoggera base. For example, the living in accommodation orders including the following (at para 1405):
“Living in members may consume alcohol in common areas. The consumption is to be kept to a moderate amount and is not to lead to disturbances, or annoying behaviour. Parties are NOT to be held in rooms or common areas. Continual breaches of this privilege result in its withdrawal, and disciplinary proceedings being taken against members found to be responsible.”
Obviously drinking in moderation is permitted but parties as such are not allowed. It is noted that the privilege is not withdrawn unless "continual" breaches occur.
The 1st Joint Support Unit Standing Orders, which also applied to the Respondent, stated (at para 232):
“Intoxicating liquor may be stored and consumed in barrack blocks and accommodation areas. Intoxicating liquor may not be stored or consumed in offices, stores or workshops or any part of 1 JSU not set aside for that purpose without the permission of the CO. It is an offence to supply intoxicating liquor to any member under the age of 18 years.”
52. On the material before it the Tribunal concludes that a culture of socialising together and drinking alcohol, including at gatherings on the open balconies of the accommodation units did exist and was incidental to army life at the Enoggera Barracks at the time of Mr Archer’s accident.
consideration of the issues
53. Section 27 of the Act sets out several alternative ways of establishing that any injury suffered is a "service injury". It is not necessary for a claimant to satisfy all of the alternatives. It is sufficient if only one of the alternatives is established.
54. The Tribunal notes that the acceptable bases for satisfying the necessary link between employment and an injury appear to be wider in Section 27 of the Act than in the other main Commonwealth compensation legislation, namely the Safety, Rehabilitation and Compensation Act 1988 and the Seafarers Rehabilitation and Compensation Act 1992. Although both of those Acts include special provisions for particular circumstances they generally require that the employee suffered an injury ",,, arising out of or in the course of employment ...". The "attributable to ..." and "but for" tests in Section 27 are not included in the other Commonwealth Compensation Acts (except in relation to acts of violence) although they are in the Veterans' Entitlements Act 1986 which provides pensions, benefits and other entitlements to members of the armed forces who have served in wars or in other hazardous circumstances. This suggests a special and perhaps more generous approach has been intentionally adopted by the legislature for members of our defence forces whether engaged in war service or involved in peace time activities.
did mr archer's injuries result from an occurrence while he was rendering defence service?
55. In the Tribunal's view the test in Section 27(a) may, in some circumstances, be more difficult to satisfy than either Section 27(b) or Section 27(c). This is because it requires proof of a temporal relationship between the “occurrence" and the person’s service as well as a causative factor. The words “resulted from” are words indicating causation. (See Woodward v Repatriation Commission 2003 FCAFC 160 (30 July 2003) paras 85 to 87 and also Repatriation Commission v Law (1980) 31 ALR 140)
56. The temporal element in Section 27(a) goes beyond the actual performance of the work which the person is employed to do and includes “the doing of whatever is incidental to the performance of the work” and includes whatever the workman is “…required, expected or authorised to do in order to carry out his actual duties…” (See Henderson v Commissioner for Railways WA (1937) 58 CLR 281).
57. Ms Mackey for Mr Archer submits that Section 27(a) of the Act is satisfied in the circumstances of this application. It is submitted that Mr Archer was actually rendering defence service at the time of his injury. Ms Mackey suggests that defence service should be interpreted broadly and should include “encouraged activity”. It is argued that socialising on the balcony was encouraged by the army and should therefore be considered defence service.
58. As mentioned above only one of the several alternatives in Section 27 has to be satisfied. As explained later in these reasons the Tribunal is satisfied on the evidence that the requirements of both Section 27(b) and Section 27(c)(iii) are met.
59. As we find that both Section 27(b) and section 27(c)(iii) are satisfied it is not necessary for us to express a final view on the respondent's contention that the occurrence which caused the injury happened when Mr Archer was rendering defence service. We do, however, consider that the temporal test in Section 27(a), although not strictly confined to the actual work Mr Archer was required to do as a radio operator, may be somewhat more difficult to satisfy than the "... attributable to ..." and "... but for ..." tests in Section 27.
60. A secondary Section 27(a) argument advanced on Mr Archer’s behalf was that the circumstances here were analogous to in Hatzimanolis and ANI Corporation Limited (1992) 173 CLR 473, and that the principles enunciated in that case should be applied.
61. It was said that Mr Archer:
“….was required to move to Enoggera: that he was required to live in, and so he was required to be at a particular space or appoint by his employer. And that even if the character of what he was doing at the time of the fall is described as being outside the service. It is not so outside the contemplation of what he would be expected to do, having been housed where he was being housed, remote to his usual residence, that it doesn’t fall outside the service.” (Transcript page 76)
62. The Tribunal finds however, that the facts here are markedly different from those in Hatzimanolis. In that case the worker was required to be in a remote area and live in accommodation provided by the employer. It was a working trip to a remote locality of limited duration. In our view it would not be reasonable to consider the whole of Mr Archer’s period of duty at Enoggera as one overall period of work. His posting was to last for several years. His work really involved a series of discrete periods of work rather than one overall period of work.
63. The facts here can also be distinguished from those in Comcare v Mather (1995) 56 FCR 456. That was a case where a soldier was stationed temporarily at a camp during a large scale military exercise. The soldier had been drinking during a period of authorised leave. Attendance at hotels whilst on leave was within the contemplation of the army. The Tribunal, applying Hatzimanolis, found that the soldier was in the course of his employment. Kiefel J agreed and dismissed the appeal.
64. We conclude that the fall and injuries occurred in an interval between discrete periods of work and not during an overall period of work as in Hatzimanolis.
did mr archer’s injuries arise out of or were they attributable to any defence service rendered by him?
65. The term: “arose out of or, was attributable to…” defence service was considered by the High Court in Roncevich v Repatriation Commission (2005) 222 CLR 115. In that case the relevant legislation being considered was Section 70(5) of the Veterans Entitlements Act (1986).
66. Guidance to the meaning of the term is found in paragraph 27 of the majority judgment in Ronchevic (McHugh, Gummow, Callinan and Heydon JJ):
"The use disjunctively in s 70(5) of the expressions "arose out of" and "attributable" manifest a legislative intention to give "defence-caused" a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate".
67. The majority in Ronchevic cited Walsh v Rother District Council [1978] 1 ALL ER 510 at 514 per Donaldson J where His Honour remarked:
"The fundamental problem is whether Mr Walsh's loss of employment was 'attributable to' any provision of the 1972 Act, ie the April 1974 reorganisation. These words have been considered in a number of cases and I do not wish to add to the explanations and definitions which have been given. Counsel for Mr Walsh submits that it is a wider concept than 'directly caused by', or 'caused by or resulting from', but he accepts that it involves some nexus between the effect and the alleged cause. He suggests that 'owing to' or 'a material contributory cause' or 'a material cause in some way contributing to the effect' may be synonyms. Lord Reid in Central Asbestos Co v Dodd said:
"... "attributable". That means capable of being attributed. "Attribute" has a number of cognate meanings; you can attribute a quality to a person or thing, you can attribute a product to a source or author, you can attribute an effect to a cause. The essential elements is connection of some kind".
Suffice it to say that these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient".
68. In the Full Federal Court decision in Repatriation Commission v Law (1980) 31 ALR 140 (Bowen CJ, Brennan and Lockhart JJ) the following view was expressed in the joint judgment at 151:
"It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show "attributability" if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made".
69. The scope of "defence service" has been extended by the Courts to include not only activities required to be done but also "expected or authorised".
In Roncevich Kirby J, whilst agreeing with the conclusion reached by the majority, wrote a separate judgment and in that said (at para 98):
"Instead of considering, as a question of fact, what was reasonably expected or authorised to be done by the appellant to carry out his duties of defence service, the Tribunal diverted its attention to notions of requirement, obligation and compulsion".
70. The issue of causation is a question of fact. Mason CJ said in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515:
"The common law tradition is that what was the cause of a particular occurrence is a question of fact which `must be determined by applying common sense to the facts of each particular case', in the words of Lord Reid: Stapley v Gypsum Mines [1953] AC 663 at 681. That proposition is supported by a long line of authority in the United Kingdom: Leyland Shipping Co v Norwich Union [1918] AC 350 at 363, 369-370; Admiralty Commissioners v SS Volute [1922] 1 AC 129 at 144; Yorkshire Dale Steamship Co v Minister of War Transport [1942] AC 691 at 706; Alphacell Ltd v Woodward [1972] AC 824 at 847; McGhee v National Coal Board [1973] 1 WLR 1 at 5, 11; [1972] 3 All ER 1008 at 1011, 1017. It is supported also by this Court's decision in Fitzgerald v Penn (1954) 91 CLR 268".
71. Certain of the facts in Roncevich were similar to those now being considered. It involved a fall from an accommodation unit at the army base at Holsworthy in NSW after Mr Roncevich had been drinking for a considerable period of time at a function in the Sergeant’s mess at the base. He was not on duty at the time but there was an expectation of attendance at the function. Also it was considered relevant that Mr Roncevich returned to his quarters to change into civilian clothes and also to iron his uniform for the next day. He fell out of the window of his unit.
72. The majority in Roncevich held (at paragraph 22) that the correct question to be asked in not whether the person’s intoxication arose out of the task he was required to do as a soldier but rather whether the injury arose out of or was attributable to his defence service. (Tribunal's emphasis)
73. At paragraph 26 the majority said:
"It was also of relevance that the inebriation of the appellant occurred on the base. That is not to say however that a defence corps injury could not have resulted if the events had occurred at a hotel rather than at the base. Nor is it irrelevant that at the time when the appellant hurt his knee it is almost certain that he would be subject to military discipline".
74. Noting that the majority in Roncevich said “that a causal link alone or a causal connection is capable of satisfying a test of attributability…” and that it does not have to be the "... sole, dominant, direct or proximate cause" it is now necessary for the Tribunal to examine the evidence in order to determine whether such a causal link or causal connection exists.
75. The applicant contends that the mere fact that the injuries occurred at the base is not sufficient. A causal connection is required. It was contended that in Roncevich the necessary causal link was found in his attending a function that he was required or expected to attend and he returned to his quarters to iron his uniform. In the present case, it was said, Mr Archer was not required or expected to attend the function on the balcony and he was not engaged in any service related activity such as ironing his uniform.
76. In their written submission of 18 May 2010 Ms Maharaj QC and Mr Wallace submitted as follows:
"41.1. If he lost his balance and fell because of his intoxication, as the Commission contends, the Tribunal must be satisfied that his defence service made a causal contribution to his consumption of alcohol to the extent of causing his intoxication. The Tribunal cannot be so satisfied. Drinking alcohol to the point of intoxication was a voluntary act on the part of the Respondent sufficient to break any chain of causation.
41.1.1. the Respondent was not on duty and had not been on duty since Friday afternoon.
41.1.2. The context for the drinking was a purely social gathering of friends at the weekend not an official or semi-official function which, it might be said, the Respondent was required or even encouraged by his superiors to attend as part of his defence service.
41.1.3. Army policy actively discouraged misuse of alcohol and members could be formally warned, and even discharged, for alcohol misuse.
41.2. If, as the Respondent contends, the fall was not caused by his intoxication (Respondent's SFC at [30]) the Tribunal must be reasonably satisfied that his defence service made a causal contribution to his fall. The Tribunal cannot be so satisfied. In the circumstances the Respondent's presence on the balcony at 1.20 am on a Sunday morning and his decision to sit on the balcony rail were not causally contributed to by his defence service. They were voluntary acts by him sufficient to break any chain of causation.
41.2.1. They did not occur because he was living in at the barracks — Building H21 was no more than the setting for the fall.
41.2.2. The gathering could have occurred at another location, on or off the barracks, including at ground level.
41.2.3. The Respondent was not required or encouraged by his superiors to attend, as part of his defence service, a social gathering of friends on a weekend at that location at 1.20 am or at all.
41.2.4. Even if socialising with fellow members while off duty was encouraged in general, that did not extend to any specific location or timing or form of activities."
41.2.5. Other service members had made other choices. For example, SIG Leveridge and SIG Vella chose to go into Brisbane City for the evening; SIG Gambling chose to go to bed before the fall; the Respondent himself had wanted the group to go out but was dissuaded from doing so by PTE Pickering, simply because she thought it too late to go out; PTE Pickering attended the gathering on the balcony but limited her drinking.
41.2.6. It is not uncommon for civilian social gatherings to take place on balconies or verandahs. Even had the Respondent not been living in, he could have attended a social gathering of friends on a balcony. He could even have visited the barracks for such a gathering.
42. It follows that the Respondent's fall and resultant injuries were not causally related to his defence service. Therefore, they did not arise out of, nor were they attributable to, his defence service".
77. In the Tribunal’s view the facts dispel the suggestion that Mr Archer was involved in a private activity unconnected to his service in the army. The following facts together establish a strong connecting link between his injuries and his defence service:
·The injury occurred at the Enoggera army base.
·There was a drinking culture among army personnel at the base with alcohol officially permitted to be stored and consumed in accommodation areas.
·At the time of his fall Mr Archer was, in keeping with that culture, attending a social gathering of colleagues at the base and there consuming alcohol.
·All of those present at the gathering were army personnel stationed at the base and were from his army unit.
·He fell from the railing of the balcony of his accommodation unit on the third floor of H.21 at the base.
·There was no air conditioning or fans within the accommodation unit.
·The balcony with a large open space above the railing was a common area for use by the occupants of the two units on the third floor.
·At the time of his injuries Mr Archer was subject to military discipline including garrison standing orders and routine orders.
·The accident was investigated by the Military Police Special Investigation Branch (this point was considered relevant in Military Rehabilitation and Compensation Commission v Roberts (2007) 238 ALR 637 at paragraph 58).
The circumstances before, at the time of, and after the fall were obviously very much army related.
78. We agree, with respect, to the following view expressed by Heerey J in the Full Court decision in Ronchevic (Ronchevic v Repatriation Commission [2003] FCAFC 146 (30 June 2003) at paragraph 23:
"It is not to the point that the appellant might have lived off base, and/or attended a social function of the type in question off base. What is relevant is what he in fact did"
79. It was contended of behalf of the Commission that the culture of drinking at the base was not really different to that of the wider Australian community. On that point we concur with the view expressed by Davies J in Repatriation Commission v Tuite (1993) 39 FCR 540 at 542:
"If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision- maker, is whether the eligible war service contributed causally to the injury or disease".
The important issue is the effect of the culture and influences at the base on Mr Archer and the part they played, directly or indirectly, in contributing to his fall and injuries.
80. There are not only contextual factors but also causative factors linking defence service to the fall and injuries. It is sufficient if those causal factors or any of them, contribute in some way to Mr Archer’s injuries.
81. On the material before us, including the oral evidence of both Mr Archer and Ms Burton and the army’s acceptance in standing and routine orders of the storage and drinking of alcohol in the accommodation units, we are satisfied there was encouragement of socialising and drinking at the base. That socialising and drinking between army colleagues frequently occurred on the balconies of the units at the base. Sometimes people sat on the railing of the balconies. This obviously posed some danger particularly if the judgment of the individuals was impaired by the consumption of alcohol.
82. Mr Archer’s fall and his injuries did occur at the army base and at that time he was subject to military discipline. These are two matters which the majority in the High Court in Roncevich determined to be relevant considerations.
83. There a number of factors which establish that Mr Archer's defence service contributed to his fall and injuries. Causation was a mixture of factors some direct and others less direct.
84. Obviously the consumption of a large quantity of alcohol and its effect on Mr Archer was a factor. But why was he drinking at the base and over such a long period? The expectation among army personnel at Enoggera that they should meet, socialise and drink together, a reality of life at the army base, was a factor influencing Mr Archer to drink as he did. It was clearly a causative factor.
85. Also the physical environment of the accommodation units and in particular the open air balconies was a contributing cause.
The design of the balconies in the accommodation units encouraged army colleagues to socialise and drink there. There were no fans or air conditioning in the units and so the balconies were an obvious place to gather, especially in warmer weather. Sometimes people sat on the railings on the balcony. This obviously placed them at some risk. If, for example, a suitable enclosed recreation room with air conditioning had been provided and used the fall would not have occurred.
86. In keeping with the culture at the base Mr Archer joined in the social gathering on the third floor balcony. All of those present were army personnel. Mr Archer had too much to drink, misjudged the height of the railing, and fell backwards and as a result suffered his injuries. The quantity of alcohol consumed and its effect on him were causative factors in the mix of factors which together brought about the fall and the resultant injuries.
87. In the decision by this Tribunal after remittal from the High Court, the Tribunal (the President Downes J presiding) said that it was not a requirement that Mr Ronchevic attend the mess, but it was "an expectation" that he would. On the evidence before the Tribunal in the current case it is reasonable to infer from the evidence, and we do, that there was a general expectation of attendance at any social gathering held with colleagues on one of the balconies. Such an expectation arose out of the army culture of socialising and drinking which we find existed at the Enoggera base at the time of Mr Archer's fall.
88. Ms Burton said that people living on the base were part of a "social network" and that they were encouraged to drink on the balconies. There was obviously strong peer pressure to join in. This was not private peer pressure. It was pressure existing at an army base from people enlisted by the army and serving at Enoggera.
89. In our view the expectation that rank and file servicemen and women who lived nearby at the base would attend such a gathering is, in reality, little different from an expectation that non-commissioned officers would be expected to attend an informal function in their mess.
90. Reference was made by the applicant's counsel to the High Court decision in CAL No 14 Pty Ltd and Anor. v Scott and Motor Accidents Insurance Board [2009] HCA 47, and in particular to paragraph 42 of that decision and the need to balance "... rights and obligations, duties and freedoms".
91. That case, of course, was concerned with the question of whether the law of negligence created a duty of care in the particular circumstances of that case. That law is different from the various statutory schemes designed to provide workers with basic entitlements to compensation for themselves and their families if they suffer an illness or injury at work or in circumstances otherwise sufficiently connected to their employment.
92. As far as personal responsibilities and obligations are concerned it is of significance that the legislature has provided exclusions in Section 32 of the Act for injuries resulting from serious default or wilful acts by an employee. Those exclusions have no application if, as is the case here, the injuries resulted in serious and permanent impairment.
Heerey J, when considering similar provisions, in the Full Federal Court decision in Ronchevic said:
"Unless there are grounds for the application of section 70(9)(a) (the equivalent in the Veterans Entitlement Act of section 32) the Act is not concerned with issues of contributory negligence, or moral aspects of a claimant's conduct. (Paragraph 28).
93. Taking the broad view of the meaning of “arose out of or was attributable to any defence service” as adopted by Heerey J in the Full Federal Court in Roncevich [2003] (75 ALD 345 at 350) and endorsed by the majority of the High Court in Roncevich, in particular the word "attributable", we find that there is present a sufficient causal nexus to establish that Mr Archer's injuries were attributable to the defence service rendered by him. Section 27(b) of the Act is therefore satisfied
would mr archer’s injuries not have occurred but for his defence service or changes in his environment consequent upon his defence service?
94. The ordinary meaning of the words in Section 27(c) appear to be very wide. However the Courts have tended to read down similar provisions existing in the Veterans Entitlements Act 1986 (ss (8)(1)(d), (9)(2) and 70(7)) and the Safety Rehabilitation and Compensation Act (1988) Section 6 (1)(a).
95. We repeat the helpful comments made by Madjwick J in Roberts (supra):
"61 In that sense, a ‘commonsense or practical’ approach (per Tamberlin J in Kennedy) or a requirement for some degree of ‘proximity’ (per Weinberg J in Schmid) may be necessary to confine the unbounded logical possibilities of a ‘but for’ test within limits that may be imputed to the legislature as acceptable. Courts must take care however, lest in the guise of avoiding a construction that would result in a clear anomaly, they try to rewrite a legislative provision closer to their own, and possibly highly contestable, views of what would be a fair and ‘common sense’ law to deal with the subject at hand.
62 In any case, to my mind, as I infer to the Senior Member’s, it is clear that s 6(1)(a) was intended to have a generous application where a Commonwealth employee is injured by a violent act. That is shown, apart from the very use of the wide test notoriously inherent in the expression ‘but for’, by the apparently exhaustive inclusion of the ways of conceiving what might be the original and crucial, employment-related circumstance: the ‘employee’s employment’, his/her performance of the ‘duties’, or the ‘functions’ of the employment. It remains true that the concept of ‘but for’ implies, indeed is synonymous with, some kind of causal connection".
96. In our opinion the causal factors linking Mr Archer’s defence service to his injuries which are detailed in paragraph 83-86 above are also sufficient to satisfy Section 27(c)(i)(ii)and (iii). Mr Archer would not have had the fall and suffered the injuries but for him having rendered defence service. The accident occurred because of factors relating directly to his service including the culture of drinking at the army base and the design of the accommodation units including the balconies. In light of that finding and our finding in respect to Section 27(b) it is unnecessary to proceed to consider whether the requirements of Section 27(c)(iv) are also satisfied.
conclusion
97. For the above reasons the Tribunal finds that the injuries suffered by Mr Archer in the fall at the Gallipoli Barracks at Enoggera on 6 March 2005 are service injuries within the meaning of Section 27 of the Act.
decision
98. The decision under review is affirmed.
costs
99. This decision is one to which Section 357(3) of the Act applies. It would therefore appear that the respondent is entitled to costs. The Tribunal will however hear counsel further as to costs if an application is made within 14 days. If no application is made within that time we will order that the applicant pays the respondent’s costs of these proceedings as agreed or taxed and that order will be incorporated in this decision.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President) and Dr R J Walters RFD (Member)
Signed: M Brereton (Administrative Assistant)
Date/s of Hearing 18 and 19 May 2010
Date of Decision 13 July 2010
Counsel for the Applicant Ms S Maharaj QC
Mr J Wallace
Solicitor for the Applicant Mr D Wilson, Australian Government Solicitor
Counsel for the Respondent Ms L Mackey
Solicitor for the Respondent Ogilvie Jennings
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