Myers and Military Rehabilitation and Compensation Commission
[2006] AATA 328
•7 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 328
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2002/868
VETERANS' APPEALS DIVISION ) Re NORMAN G MYERS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr K Levy, Member Date7 April 2006
PlaceBrisbane
Decision The Tribunal therefore finds that:
(a)the applicant’s injuries to his right wrist were suffered during an authorised physical training session on 4 November 1991; and
(b)that the injury to his right wrist has arisen out of or in the course of his employment at 1 Watercraft Workshop in November 1991 in accordance with the Act.
(c)liability rests with the Commonwealth for the injuries sustained by the applicant and the matter is remitted to the respondent for assessment and implementation of this decision.
CATCHWORDS
VETERANS’ AFFAIRS – defence caused injury – scapholunate disruption – hyper flexion injury of right wrist – causal connection between injury and defence service – PT part of defence service when compulsory – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 24, 27, 53
Myers and Comcare [2004] AATA 38.
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Roncevich v Repatriation Commission [2005] HCA 40
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Mendez v Telstra Corporation Limited (1998) 147 FLR 394
Roncevich v Repatriation Commission [2003] FCAFC 146REASONS FOR DECISION
7 April 2006
Dr K Levy, Member
Introduction
1. The applicant, Norman Gregory Myers, seeks review of a decision dated 16 January 2002 which was affirmed on 7 August 2002. That decision denied liability for the applicant’s right wrist condition.
2. That decision was based on the fact that as no record could be found of the injury claimed, that he was not “on duty” and that the injury did not arise “out of or in the course of his employment”. Attention was also drawn to s 53 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) which requires notice to be given to the relevant authority as soon as practicable after the employer becomes aware of the injury.
3. When this matter was set down, the applicant also sought review of a decision of 22 September 2004 and which was affirmed on 29 November 2004. That decision denied lump sum compensation for permanent impairment in relation to the applicant’s right wrist condition under ss 24 and 27 of the Act. The Tribunal was advised at the commencement of the hearing that the latter aspect of the claim was not is issue in this hearing so that the only issue in dispute was liability.
Background
4. This matter has been the subject of a previous decision (see Myers and Comcare [2004] AATA 38. The applicant is currently 46 years of age, his date of birth being 20 March 1960. He was educated to year 10 level after which he worked for one year as a tyre fitter and then joined the Australian Regular Army at age 17. His date of enlistment was 28 February 1978 and he served continuously for 21½ years (approximately). He was discharged at his own request on 9 September 1999.
5. Mr Myers’ record of service issued by the Soldier Career Management Agency on 2 March 2001, shows that after enlistment and recruit training, he was employed as a storeman technical general from 1978 and allocated to RAEME Corps. He held the rank of Staff Sergeant at the time of the injury on 4 November 1991, having been promoted to that rank on 18 September 1991. He subsequently transferred to RAAOC Corps in January 1995, was promoted to Warrant Officer Class 2 in 1996 and served in that rank until his date of discharge.
6. His medical classifications during his military service were Fit Everywhere on enlistment and discharge but variously through his service, his medical classification was downgraded to HO (home only) in October 1983 and July 1984; and to CZE (combat zone exempt) in March 1983, September 1983, January 1986, September 1993 and November 1994.
7. The previous hearing of this matter was appealed to the Federal Court of Australia. This resulted in the Court making orders by consent that the matter be remitted to the Tribunal for hearing on the following issues:
“(a)whether any right wrist condition presently suffered by the applicant is a result of an injury alleged to have occurred in November 1991; and
(b)whether such right wrist condition can be said to have arisen out of or in the course of the applicant’s employment.
…”
Issues
8. The issues to be determined by the Tribunal are the two issues ordered by Spender J on 8 April 2004 and as set out above.
Evidence
9. The following documents were admitted into evidence:
§Exhibit 1 T documents prepared in accordance with s 37 of the Administrative Appeals Tribunal Act 1975
§Exhibit 2 report prepared by Dr Nicholas Burke dated 5 August 2005
§Exhibit 3 email record submitted by Mr Richard (Dick) Kearnan dated 7 April 2003
§Exhibit 4 statement by Gary John Spierings dated 5 December 2002
§Exhibit 5 statement by the applicant, Norman Gregory Myers dated 21 October 2005
§Exhibit 6 Defence Instruction (general) PERS 14-2 dated 13 June 1991 (Australian Defence Force [ADF] Policy on Sport)
§ Evidence of the Applicant
10. The applicant stated that at the time of the injury, the subject of this claim, he was posted as Quarter Master to 1st Watercraft Workshop which was at Woolwich in Sydney. He described the Unit as being a relatively small unit having an establishment of 50 or 60 personnel and having one Commissioned Officer, the Officer Commanding. The depot was occupied by 80 to 100 personnel in total. It was a stand alone establishment in Morts Dock which he described as having been built by convicts. That Unit was co-located with another Unit, 45 Water Transport Squadron and because of the size of 1 Watercraft Workshop, it utilised the medical services at the RAP of 35 Water Transport Squadron.
11. The applicant had marched into 1 Watercraft Workshop in the early part of 1991. Part of the daily routine was that the Unit would undertake physical training (PT) in a park outside the depot. The PT regime involved undertaking activities on four days per week, except on Wednesdays, when the afternoon of that day was regarded as sports afternoon. He stated that PT was mandatory and that a routine order was in existence ordering that all members of the Unit will attend and that PT was regarded as an “OC’s parade”. That is, the activity was regarded as compulsory and that this was standard across the Army. The PT activity was conducted outside the compound at about 0700 or 0730 each day and continued for about 1 to 1½ hours. It was normally conducted by a Warrant Officer or Senior NCO who was nominated in routine orders. He indicated that as the Quarter Master Sergeant, he had one storeman and that his duties prevented him from conducting PT sessions, although he participated in them. He only undertook PT and that he did not play football or tennis or other sports on sports afternoon.
12. The PT sessions were varied so that they did not become monotonous and were oversighted by Mr Dick Kearnan, who was at that time, the Artificer Sergeant Major. The sub-Unit Commander Capt Gary Spierings also attended the sessions, as did all Unit members, unless they were excused for some reason such as being away from the Unit on duty. On the day of the injury, he was playing touch football which was usually fifteen persons per side. When the injury occurred, Mr Myers had his hand on the football while it was still on the ground and was struck in the right shoulder by an opponent player coming back on side. He stated this action caused his hand to roll forward over the ball and forced his right hand thumb to be bent backwards to his wrist. He thought it even ended up touching his forearm. He thought he had sprained his wrist and then left the game straight away to go to the RAP at 35 Water Transport Squadron, which was approximately 20 to 30 metres away.
13. In oral evidence, the applicant stated that he saw the Corporal medic who was in a towel, himself returning from the 35 Water Transport Squadron PT. Mr Myers had his thumb and wrist strapped up and he then went away. He could not recall swelling but he had gone immediately to the RAP and had it strapped up very quickly. That day he suffered pain and took Panadol. It continued to hurt for a number of weeks afterwards.
14. The applicant’s dominant hand is his left hand. However, he explained he uses his right hand for golf and other practical activities. He claimed that he was still in pain for 1½ to 2 months afterwards and that his wrist and thumb were bandaged for approximately one month after the incident. He stated it interfered with some duties but as he was left handed, he could write and undertake most duties as QMS. In undertaking weapons training, for example firing the Steyr, he ordinarily undertook certain actions right handed (eg cocking the weapon) but would shoot left handed.
15. In relation to the injury documentation, the applicant completed the injury report PM24. He had taken it to Capt Spierings, the Officer Commanding, who had signed it and passed it on to the Corporal Clerk. He could offer no advice as to whether the RAP had completed any documentation at that time and he could not identify the name of the Corporal medic. He thought that in the ordinary course of Unit administration before the OC signed the PM24, it may have been countersigned by the ASM. However, he acknowledged a copy of the document certainly should have gone to his personal file and could not explain why it was not in his medical documents. He gave evidence that at that time, the Corporal Clerk was “overloaded” and some paperwork had not been done.
16. The applicant claimed that he lost approximately 40 to 60% of his strength in the wrist over subsequent months and that approximately five months later when the pain and instability persisted, he was referred to the local area medical officer at Hunter’s Hill. That medical officer undertook a Medical Board examination for the applicant and referred him to a Dr Honner. Dr Honner advised him that his options were to have an operation on his wrist although he would run the risk of losing half the movement of his wrist as a result of that surgery. These medical officers were civilian medical officers as there was no Army hospital nearby to which he could be referred.
17. The applicant stated that he chose not to have the surgery as it ran the risk that he would be medically downgraded (a career limiting factor) and decided to accept the pain and instability. He sought discharge at his own request on 9 September 1999. He endeavoured to rejoin the Army some eight months later in 2000 and was certified as being unfit for service by Dr Toft.
18. In cross-examination by Mr Clark, the applicant was referred to the report by Dr RL Thomson, a medico-legal consultant surgeon. The applicant agreed that the basis of Dr Thomson’s opinion including reference to loss of strength of the right hand of 40% and “chronic right wrist pain”, was because these were comments provided to Dr Thomson by him (see Folios 51 and 52). When asked whether he told the Doctor that he was left handed he stated that he only writes left handed and that he opens jars etc with his right hand.
19. In relation to PT sessions, some issue was taken with the fact that he had stated in evidence that the incident occurred on 3 November 1991. His statement had specified it occurred on 4 November 1991 (Folio 66). The date 4 November 1991 was a Monday and described playing touch football but did not play other games. He indicated he had played volley ball but had never played basket ball in the Army and he had never been injured while playing any other sport. The relevant injury in this matter occurred from a right shoulder push and said that contact was made with his right arm and it was a “side push”.
20. When he tried to rejoin the Army at the end of 2000, he was referred to Dr Lloyd Toft. He told Dr Toft that some activities caused him trouble when using his wrist. He did not tell Dr Toft the specific problem because he was not asked. It was put to him that he had been inconsistent in that he told Dr Thomson that he had “chronic wrist pain” but had not described it similarly to Dr Toft. Dr Toft’s report also referred to his right hand and that there was “altered sensation in the ring and middle finger. He has a full range of finger movement. He can make a full fist”. That report shows “he has full flexion and tension and appears to have normal power in the right hand”. Dr Toft concluded that “…this man does not meet the standard required for entry into the Armed Services. He has an ongoing impairment in the right hand in the form of sensory changes and some muscle wasting which appears to be post-surgical. There is also instability in the right wrist which is currently asymptomatic. I believe that there would be a risk of aggravating this man’s right hand condition under the stresses of service life”. (Folio 50). The applicant agreed that Dr Toft’s report is correct in relation to the report the applicant provided to him.
21. Counsel for the respondent also referred the applicant to his statement (Folio 66). There, the applicant stated that “it was not until I tried to re-enlist back into the Army ….that I found out that the injury to my right wrist that I sustained in the Army and had been discharged as Med Class 1 caused me to be classified as medically unfit for service in the Army”. The applicant stated he was upset at the time of discharge a year earlier, that a Doctor had classified him as Med Class 1, although he had told the final Medical Board that he had a “buggered” wrist and that he intended to claim compensation for it. He was also referred to folio 20 which is a medical attendance and treatment report when he served in 101 Field Workshop in 1989. He agreed there was no such document (a PM24) similar to that one on his record which related to the injury to his wrist in 1991.
22. Reference was again made to the Medical Board in April 1992, some five months after the accident. There, in item 34, there was a note that there was a sprain to his wrist which was at that time “resolving” and that in May 1992, there was reference to a doctor’s note that the applicant had a hyperflexion injury to his right wrist playing football which appeared to be eight months earlier. It was noted however, that the injury occurred seven months earlier. In re-examination Counsel for the applicant clarified that while he would have answered questions of the Doctor and clarified issues which he had been asked about, he mentioned that he also did not refer to the difficulty he had in then having to cock the weapon with his left rather than his right hand. Comment was not made similarly as the Doctor had not asked him about this.
§ Evidence of Gary John Spierings
23. Mr Spierings stated that he was an officer in the Australian Regular Army for 25 years having joined the Army in January 1979. He is now a Reserve Officer. In 1991 he was the officer commanding 1 Watercraft Workshop at Woolwich in Sydney and that he was an officer in the RAEME Corps. He remembered Normal Gregory Myers who was commonly referred to as “Greg Myers”. He was a Quartermaster Sergeant who commenced duty in that Unit at the start on 1991. He stated that they served together in that Unit for approximately two years.
24. The Unit consisted of 30 to 50 staff of which six were regarded as the Management Team. Mr Spierings was the only commissioned officer. His 2IC was WO1 Kearnan, who was also the Artificer Sergeant Major.
25. He stated that PT was conducted in that Unit in 1991. He described the Unit as being a significant part of the Army and was a Land Command Unit. It was tasked directly to support Land Command Units. PT was conducted for 40 to 50 minute periods of physical activity including aerobics, touch football etc. Everybody in the Unit was required to participate, including himself as the Officer Commanding. It was conducted by various NCOs and sometimes a person of the rank of Corporal or Sergeant would be conducting and organising the PT. However, it would be supervised by WO1 Kearnan or himself. It started about 7.00am in the morning and commenced with any activity to get the heart rate going. He said that people were excused from attending PT only rarely, and that would be if their duties required them to perform other tasks at the same time.
26. He referred to the RAP being co-located with 35 Water Transport Squadron. It was adjacent to the gates where Unit members went through to the field where PT was conducted.
27. In relation to the injury claimed by Mr Myers, he became aware of the injury by report later that morning. He stated that injury during PT sessions occurred about once per week where somebody in the Unit would be injured. In relation to the completion of the PM24 form, Report of an Injury, that was a requirement placed on all members injured. As he understood it, a copy of the form should be filed on the member’s file and one should be forwarded to Soldier Career Management Agency (SCMA). As the Unit Commander, he was required to make his comments on the form and he would have given it to the Orderly Room Corporal for processing. As he recalls, the Artificer Sergeant Major would have had a mandatory obligation to complete the form also, but he was adamant that he recalled signing the PM24, which he thought came to him from the orderly room. Even though it cannot now be located, he was unable to offer any specific reason for this. However, he stated it was not uncommon for those forms to be completed but then never re-appear.
28. Mr Spierings evidence was that at that time there was a problem with his orderly room. It was badly managed by the Orderly Room Corporal, who, Mr Spierings said was not good at priority setting or administrative management. The Orderly Room Corporal suffered stress and did not handle his job well. It was rectified by performance management to ensure that he did the job and Mr Spierings view was that the Orderly Room Corporal was capable of doing the job but he did not get the job done. Paper tended to mount up. He had one private soldier to assist but oversight and organisation seemed to be a problem.
29. When asked if he had any contact with Mr Myers after he was posted out in 1992 he answered “no”. He recalled Mr Myers in the Unit and at the time of the injury he had a bandage on his wrist for some time. He regarded Mr Myers’ role as one largely of management and on a couple of occasions following the injury he needed assistance for lifting equipment in his Q store when his private solider was away. He recalled the cast or bandage being on Mr Myers’ arm going on for some time and that he would have had daily contact with him given the organisational structure of the Unit. He could not recall the Medical Board examination in 1992.
30. In cross-examination by Mr Clark, he stated he did not recall seeing Mr Myers being injured. When asked whether it occurred at the end of 1991, he answered it would have occurred in the second half of 1991 and perhaps between October and December of 1991.
31. He described the procedure for PT training and that there was no definite routine. It depended how long they had available on a particular day. He stated that there was nothing special about a Monday for its PT sessions. For example, it was not necessarily a run on that day and touch football would be played with the number of players available. He said typical touch football rules applied although some variations might have occurred from time to time. He recalled there were variations to the game where it sometimes was more physical than touch.
32. While he did not witness Mr Myers going to the RAP he specifically recalled seeing the PM24 form and he was certain that he certified the form for Mr Myers. He said in his two years as Unit Commander, he would have completed about 1 per week, or about 100 over the two year period. Mr Spiering stated that there was nothing unusual about a soldier suffering a strained wrist on PT. However, he did not regard it as an insignificant event as the injury affected the person’s work.
33. In relation to this particular incident, Mr Spiering stated that he had no contact with Mr Myers since he left Watercraft Workshop until he was contacted about three years ago and mentioned that he had made a claim for his wrist injury. Mr Spiering agreed to provide a statement which he provided to the solicitor’s staff. Although it was 11 years ago, he can recall his actions in completing the injury report although he could not recall details such as when it was given to his Orderly Room clerk. He emphasised that he did remember the event because it affected the soldier’s overall health. He denied that he was only assuming that he would have filled out the form as he said he can actually remember the event, although it was 11 years earlier.
§ Evidence of Richard Kearnan
34. Mr Kearnan stated that he was the Artificer Sergeant Major of 1 Watercraft Workshop in 1991. He had been in the Army for 25 years. He remembers Mr Myers as the Quarter Master Sergeant. He also remembered an injury to his right wrist which was brought to his attention following a PT session on a particular day. In relation to the injury report PM24, he said it would not necessarily be seen by him although it could have been. He did not recall actually seeing the PM24 form for Mr Myers. He could not recall how it was brought to his attention.
35. In relation to the PT regime, his recollection was that PT was conducted on Monday, Wednesday and Fridays by running or a sporting event or weights/gymnasium activity. It was organised by an NCO and supervised by himself, the Officer Commanding or the NCO of the day. It was also the first period in the morning which was usually approximately 40 minutes to 1 hour. Mr Keanan stated that the PT routine was always varied from day to day.
36. In relation to the organisation of the Unit, Mr Myers was part of the management team. The Unit size was approximately 30. In relation to touch football, it was generally kept within the rules, or at least as close as possible. He recalled the layout of the barracks area which was on 15 to 20 acres, and as the grounds were rough, they did PT just outside the gate (up to 500 metres from the front of the gate).
37. He stated that the injury did not affect Mr Myers’ work.
38. Under cross-examination by Mr Clark, he could not remember the PM24 being raised. However, he stated the Officer Commanding, Capt Spierings was a “stickler for detail” and was meticulous about forms being lodged. He stated the RAP could have filled out a PM24 or Mr Myers could have completed such a form. He thought the form was usually signed by the Officer Commanding. He mentioned also that PT activities at 1 Watercraft Workshop would not always involve touch football but there were other ballgames as well such as soccer and volley ball.
Medical Evidence
39. In 1992, Dr Richard Honner, a hand and upper limb specialist in New South Wales said that the applicant “appears to have a mid-carpal instability or possibly a scapho-lunate instability …” (T6, folio 48)
40. On 3 November 2000, Dr Lloyd Toft said that the applicant appears to have some wasting of “the interosseous muscles in the 3rd and 4th interspace” of the right hand. He concluded that the applicant’s right hand impairment would be aggravated by service life and consequently his re-enlistment was rejected. (T7, folio 49)
41. On 5 April 2001, Dr RL Thomson, a medico-legal consultant surgeon diagnosed Mr Myers with a hyper-flexion injury of the right wrist with carpel instability and ongoing sequelae. He further stated that Mr Myers would be “…permanently unfit for physical occupations requiring normality at the right wrist/hand and only fit for lighter alternative duties where those requirements are distinctly secondary or irrelevant”. (T8, folio 53)
42. Dr Greg Couzens, in his report dated 22 December 2004, said Mr Myers appears to have a mid-carpal instability. He concluded that his injuries were “…consistent with a forced flexion injury to the wrist as described by Mr Myers”. He further stated “I think it is unlikely that anything less than a limited carpal fusion would prove satisfactory in relieving his pain. Unfortunately the limited carpal fusion would most likely lead to loss of approximately of motion in the wrist.” He further concluded referring to Guides to the Evaluation of Permanent Impairment as published by the American Medical Association, that Mr Myers ”…has mild carpal instability due to scapho lunate injury and mild carpal instability due to mid carpal instability.”
43. Dr Nicholas Burke in a report prepared for the respondent’s solicitors examined Mr Myers and diagnosed him with mild carpal instability due to a scapho lunate injury. He said that “in my opinion it is, based on the balance of probabilities, due to the injury sustained in November 1991”. In relation to whether the impairment is permanent, Dr Burke said “in my opinion, it is permanent”. (Exhibit 2)
Submissions
44. Counsel for the applicant submitted that this hearing was only concerned with the matters dealt with by the Federal Court. The questions were “ of short compass” and stated that the respondent had not adduced evidence to rebut the evidence of the applicant and his two other witnesses. He submitted that there were minor inconsistencies but they were related to events which occurred in 1991. It was a small Unit which was “close knit” and was technical in orientation.
45. The Unit varied in size from 28 to 50 and had its own Orderly Room. It conducted a PT regime which included a deal of variety including touch football.
46. In relation to the medical evidence, the applicant had been told by specialists that if he had an operation on his right wrist, then he would have a restricted range of movement. He was therefore apprehensive as it could lead to medical discharge. He was ultimately discharged at his own request not on medical grounds. When he tried to re-enlist eight months later, there was no attempt to hide his condition. After the injury, he served for another seven or eight years in the Army and was a Staff Sergeant at the time of the injury. Many medical authorities had noted throughout that period that he had a right wrist complaint. He may have down played his injury but there was no question that he had such an injury.
47. When he applied to re-enlist, he was sent to Dr Toft and it was submitted that there was no evidence that he understated the extent of the injury to Dr Toft. He told him of the loss of movement in his fingers.
48. In relation to the applicant’s recollection of the day of the week or the date of the injury, i.e. 4 November 1991, he submitted that there was nothing particularly significant about whether he recalled it was the 3rd and 4th November 1991. It was submitted it was a day on which PT was conducted and would have been a different matter had it been e.g. a Wednesday, when no PT was conducted. It was also submitted that PT injuries were not uncommon. The Unit Commander recalled that there would have been at least one per week.
49. In relation to the PM24 form, Mr Myers can offer no explanation as to why it is no longer in the records. He referred to the Orderly Room Corporal at the time having some difficulty and that the Corporal Medic, who had a towel around him on the day he had his thumb strapped up, may have gone to the shower immediately afterwards and forgotten to complete the record later.
50. It was also submitted that the PT was an activity that everyone was required to attend unless there was a good excuse. It was also submitted that the best evidence available about the injury and whether it occurred was available from the witnesses provided.
51. It was submitted by Counsel for the respondent, Mr Clark, that this matter is concerned with the consent orders made by Justice Spender on 8 April 2004. In particular, the relevant issue is in paragraph 2(b) of those orders that is whether the applicant’s condition can be said to have arisen out of or in the course of, the applicant’s employment. He referred to the medical evidence of Dr Burke, Dr Thomson and Dr Toft. He submitted that after such a long period of time, there needs to be contemporaneous evidence about the workplace connection to the injury claimed. In relation to the contemporaneous aspect, he pointed out that the applicant became agitated as he left the Army on the top medical classification but a short time later was rejected. He suggested that the applicant was bitter and held resentment. He referred to the last paragraph of the applicant’s statement of 24 October 2001 (Folio 66). Also, it was submitted that the Medical Board document of 11 April 1992 (Folio 22) and the referral to the specialist (Folio 23) need to be examined for workplace connection. It was also submitted that Folios 43 and 44 (Medical Board of June 1998) do not raise a connection between the injury and the workplace. It was submitted that Mr Keanan had claimed that the injury did not affect Mr Myers’ work whereas Mr Spierings’ statement was that it did affect his work. It was mentioned also that Mr Spierings remembered sighting the PM24 document 11 years after the event whereas Mr Keanan did not. It was submitted that in relation to contemporaneous evidence, that the PM24 would be very useful but not essential in resolving these issues.
consideration
52. The Tribunal has reached a decision in this matter taking into account all of the oral and documentary evidence, the submissions, the legislation and case law.
53. The Tribunal has found that the applicant is a witness of truth. He was tall and thin and at times appeared fragile. However, his language was simple and any inconsistency in providing information to medical examiners I accept was probably due to lack of insight or foresight as to the examinations, rather than any deliberate intention to deceive. Likewise, I found Mr Kearnan and Mr Spierings to be credible witnesses and any variations in their recollections were relatively minor given the passage of time and that they were essentially corroborative of Mr Myers claims and his evidence.
54. In relation to the first issue for consideration, that is, whether any right wrist condition presently suffered by the applicant is a result of an injury alleged to have occurred in November 1991, the Tribunal finds that his present condition is attributable to that injury. It is clear that there is now no written record in the form of a PM24. However, his account of the events are essentially consistent with the activities of Army life and the evidence of Mr Kearnan and Mr Spierings are supportive of that claim. I accept that a Unit Commander in a small unit the size of 1 Watercraft Workshop and the fact that Mr Spierings, as the only commissioned officer in the Unit, would have had close daily contact with all of the Warrant Officers and Senior NCOs of that Unit. The likelihood of his personal recollection of his at least reporting an injury, the fact that it was bandaged or in a cast and that he recalls signing the PM24, is accepted as evidence of that event. There is no significant contrary evidence and there is no indication that there is reason to be suspicious of that claim. Indeed, there are many medical reports where there is reference to the injury from 1991 until the present time, including recent medical reports including those arranged by the respondent where Dr Couzens and Dr Burke accept that the injury to the applicant’s right wrist is consistent with an injury as stated in 1991.
55. The fact that no record currently appears in the records has been explained independently by Mr Spierings who described some difficulties in the administration in the orderly room during that period. The fact that a Corporal clerk may have had some difficulty coping with administration in 1991 and an inability to detect an PM24 in the records now, is not fatal to answering this question given the credible evidence of the applicant and particularly, that of his former Unit Commander, Mr Spierings.
56. In relation to the second question to be answered, that is, whether any such right wrist condition can be said to have arisen out of or in the course of the applicant’s employment, that goes to the fundamental question of whether the applicant was “on duty”. Reference was made to Defence Instruction (General) PERS 14-2 dated 13 June 1991 where in that instruction paragraph 2 deems a member of the Defence Force to be “on duty” where the member participates in “programmed sport”, “local sport”, “interservice sport” and “combined service sport”. The Tribunal accepts that the PT sessions conducted by 1 Watercraft Workshop in November 1991, would fall within the scope of either “programmed sport” or “local sport”, based on the evidence of both the applicant and Captain Spierings that PT was compulsory and was declared in Unit routine orders. In other words, it was a direction that all soldiers attend and that failure to attend would have been a breach of a lawful order. On that basis, it is accepted that the applicant was “on duty”.
57. The term “arisen out of”, or “in the course of his or her employment”, as defined in s 6(1) of the Act, must depend on whether an applicant, as an employee of the Commonwealth, was undertaking an activity that “…he was reasonably required, expected or authorised to do to carry out his duties…” Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133, per Dixon J. More specifically, its application to members of the Defence Force has more recently been considered by the High Court of Australia in Roncevich v Repatriation Commission 2005 HCA 40 where at [17] the Court approved the dissenting judgment of Heerey J of the Full Federal Court where he cited a passage from Henderson v Commissioner of Railways (WA) 1937 58 CLR 281, which quoted Dixon J as follows:
“To be in the course of employment, the Acts of the workmen must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work.”
58. Heerey J in that decision (Roncevich v Repatriation Commission [2003] FCAFC 146, also referred to the concept of having “arose out of, or was attributable to, any defence service, to be a “compound legal concept”. He concluded [at 37] that a decision of the Tribunal in that case had erred in law, as “it effectively ignored what the appellant was, as a matter of practicality, required or expected to do as part of his service in the Army. The primary Judge did not correct that error. It might also be said that if injury can only arise out of or be attributable to defence service if it occurs when the claimant is doing something which he or she is ordered to do, it is strange that the Act contemplates injury being compensable even when it arises out of disobedience of an order, as long as there has not been a serious default or wilful act or a serous breach of discipline”.
59. In a separate judgment in Roncevich above at [98], Kirby J referred to the requirement to consider “what was reasonably expected or authorised to be done by the appellant to carry out his duties of defence service” and not merely to “notions of requirement, obligation and compulsion” .
60. It is clear that the concepts of “in the course of” and “arising out of” employment, in some respects, intersect. (See Mendez v Telstra Corporation Limited (1998) 147 FLR 394. Consequently, those authorities confirm the Tribunal’s assessment based on the evidence and the requirements on Mr Myers to attend PT in his Unit, that he was therefore “on duty”. Consequently, his right wrist condition must be said to have arisen out of or in the course of his employment in 1 Watercraft Workshop in November 1991.
61. The Tribunal therefore finds that:
(a)as a matter of fact, the applicant’s injuries to his right wrist were suffered during an authorised physical training session on 4 November 1991; and
(b)that the injury to his right wrist has arisen out of or in the course of his employment at 1 Watercraft Workshop in November 1991 in accordance with the Act.
(c)liability rests with the Commonwealth for the injuries sustained by the applicant and the matter is remitted to the respondent for assessment and implementation of this decision.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K Levy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 19 January 2006
Date of Decision 7 April 2006
Counsel for the Applicant Mr RG Hume
Solicitor for the Applicant D'Arcys Solicitors
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Dibbs Abbott Stillman
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