Pierson and Military Rehabilitation and Compensation Commission (Compensation)

[2024] AATA 2851

Pierson and Military Rehabilitation and Compensation Commission (Compensation) [2024] AATA 2851 (12 August 2024)

Division:VETERANS’ APPEALS DIVISION

File Number(s):      2022/10268

Re:Jodie PIERSON  

APPLICANT

MILITARY REHABILITATION AND COMPENSATION COMMISSIONAnd  

RESPONDENT

DECISION

Tribunal:Senior Member George and Lieutenant Colonel Ormston

Date:12 August 2024

Place:Adelaide

The decision under review is set aside and remitted with the direction that the Veteran’s death was a ‘service death’ within the meaning of s 28(1) of the Act.

.........[sgnd]...............................................................

Senior Member George

.......[sgnd].... .............................................................

Lieutenant Colonel Ormston

CATCHWORDS

VETERANS – death of veteran – complications of sudden ascent during scuba diving – whether a service death – shore leave – interval in course of employment – whether veteran ‘induced or encouraged’ to engage in activity – level of generality of inducement or encouragement – degree of discretion or choice – decision set aside and remitted with direction

LEGISLATION

Military Rehabilitation and Compensation Act 2004 (Cth)

CASES

Comcare v Mather and Mitchell (1995) FCA 1216 / (1995) 56 FCR 456
Comcare v PVYW (2013) 250 CLR 246
Commonwealth of Australia v Staddon (1984) 1 FCR 95
Dalgrin and Military Rehabilitation and Compensation Commission (2020) AATA 5473
Military Rehabilitation and Compensation Commission vDalgrin (2022) FCA 83
QX07/1 and Military Rehabilitation and Compensation Commission (2007) AATA 1172
Scambary and Military Rehabilitation and Compensation Commission (2023) AATA 3567
Staddon and Commonwealth of Australia (1982) AATA 236
Turner-Dauncey and Military Rehabilitation and Compensation Commission (2016) AATA 551

SECONDARY MATERIALS

The Inspector-General of The Australian Defence Force ‘Report into Petty Officer
JAMES PIERSON’s Death’ (IGADF/BN12791236) Operational Port Visit Procedure

REASONS FOR DECISION

Senior Member George

Lieutenant Colonel Ormston

12 August 2024

INTRODUCTION

1. Jodie Pierson (‘the Applicant’) is the widow of the late James Pierson, born in July 1972, who was a member of the Royal Australian Navy (‘RAN’) holding the rank of Petty Officer (‘PO’).

2. PO Pierson died on 3 November 2019 at Yap in the Federated States of Micronesia while undertaking a recreational scuba dive. At the time, PO Pierson was on shore leave from HMAS Leeuwin, a hydrographic survey vessel visiting Yap during a four-week deployment to Southeast Asia.

3. PO Pierson was scuba diving with a group of five others offshore from Yap when he inexplicably ascended from a depth of 18 metres without stopping to decompress. He was assisted unconscious onto a boat and given CPR but could not be revived. His cause of death is recorded by the NSW Coroner as ‘complications of sudden ascent during scuba diving’.[1]  

   [1] Exhibit R1, T-Documents, T8, Letter from Coroners Court to Jodie Pierson dated 6 April 2021, page 84.

4. On 21 February 2020, the Applicant lodged a claim for compensation under the Military Rehabilitation and Compensation Act 2004 (Cth) (‘the Act’).[2] On 24 March 2022, a delegate of the Repatriation Commission rejected the application on the basis of not being reasonably satisfied that there was a causal connection between the late Veteran’s death and his defence service.[3]

   [2] Exhibit R1, T- Documents, T6, Application for Compensation, pages 26-35.

   [3] Exhibit R1, T-Documents, T9 and T10, Emails from DVA to the Applicant’s representative, pages 85-97.

5. On 30 March 2022, the Applicant requested a review of the determination. On 25 November 2022, the Veterans’ Review Board (‘VRB’) affirmed the determination of 24 March 2022.[4] On 14 December 2022, the Applicant lodged an application to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision dated 24 March 2022.[5]

   [4] Exhibit R1, T-Documents, T13, Letter from Veterans’ Review Board of Decision, pages 103-115.

   [5] Exhibit R1, T-Documents, T2, Application for Review of Decision, pages 12-15.

6. On 15-16 April 2024, the Tribunal considered the Applicant’s appeal and reserved its decision.[6] On 15 July 2024, the parties agreed to the matter being decided by a reconstituted Tribunal, taking account of the tendered material and the transcript of proceedings from the hearing on 15-16 April 2024.  

   [6] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 36, lines 14-15.

   THE LEGISLATIVE FRAMEWORK

7. Section 335(3) of the Act relevantly provides that the applicable standard of proof is for the Tribunal to decide the relevant issues to its ‘reasonable satisfaction’.

8. Section 24 of the Act relevantly provides that:

   (1)  The Commission must accept liability for the death of a person if:

   (a)  the person's death is a service death under section 28; and

   (b)  the Commission is not prevented from accepting liability for the death     by subsection 34(4) or section 35 or 36; and

   (c)  a claim for acceptance of liability for the death has been made under section 319.

9. Section 28 of the Act relevantly provides:

   Definition of service death

   (1). For the purposes of this Act, the death of a person is a service death if one or more of the following apply:

   (a) the death resulted from an occurrence that happened while the person was a member rendering defence service;

   (b) the death arose out of, or was attributable to, any defence service rendered by the person while a member;

   (c) in the opinion of the Commission, the death was due to:

   (i) an accident that would not have occurred; or

   (ii) a disease that 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;

   (d) the injury or disease from which the person died:

   (i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or

   (ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;

   (e) the injury or disease from which the person die d is an injury or disease that has been determined under section 27, 29 or 30 to be a service injury or a service disease, as the case may be;

   (f) the death resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:

   (i) to a place for the purpose of performing duty; or

   (ii) away from a place of duty upon having ceased to perform duty.

   ISSUE

10. The reviewable decision considers whether the Repatriation Commission (‘the Respondent’) is liable to pay compensation to the Applicant in respect of the death of her late husband. The issue, therefore, is whether the Veteran’s death was a ‘service death’ as set out in s 28(1) of the Act.

    CONSIDERATION

11. From the submissions made by the parties at the Tribunal hearing on 15-16 April 2024, the reconstituted Tribunal understands that there is no dispute that the Veteran was a member of the Australian Defence Force (‘ADF’) or that his death resulted from an occurrence that happened while he was a member. The question is whether the Veteran’s death happened while he was rendering defence service.

12. The reconstituted Tribunal considers that the issue of whether the Veteran was rendering defence service at the time of his death turns initially on the question of whether the Veteran was ‘on duty’ at the time of his death, that is, whether his death occurred during the course of his employment.

13. The reconstituted Tribunal notes that the term ‘on duty’ is not defined in the Act, although s 28(1)(f) includes the terms ‘course of duty’ and ‘place of duty’. Nor is the term defined in relevant case law, although the Applicant, represented by Mr Black, points the Tribunal to ‘the view in Scambary that “on duty” means rendering service’.[7]

    [7] Scambary and Military Rehabilitation and Compensation Commission (2023) AATA 3567.

14. The reconstituted Tribunal accepts that the term ‘on duty’ is commonly used in military parlance as equating with the term ‘course of employment’ as used in case law, notably Comcare v PVYW [8](‘PVYW’), which is relevantly cited by both parties in their submissions.

    [8] (2013) 250 CLR 246.

    Was the Veteran on duty at the time of his death?

15. In considering the question of whether the Veteran was on duty at the time of his death, the reconstituted Tribunal has considered two sub-questions, namely whether the Veteran was on duty for the complete four-week duration of HMAS Leeuwin’s deployment and whether crew members of HMAS Leeuwin were on duty while on shore leave at Yap.

    Was the Veteran on duty for the duration of HMAS Leeuwin’s deployment?

16. The Applicant contends that one of the critical findings of fact as to whether the Veteran was on duty at the time of his death is the memorandum issued by the Executive Officer of HMAS Leeuwin on 29 October 2019.[9] The Applicant contends that this was a prospective document that was not ‘a guidance note’ but effectively what the RAN has confirmed was the ‘standing orders’ issued to the crew in advance of the port visit to Yap.[10]

    [9] Exhibit R1, T-Documents, T5, Temporary Memorandum by Executive Officer HMAS Leeuwin, pages 26-35.

    [10] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 2, lines 31-35.          

17. The Applicant notes that under the heading ‘Aim’, the memorandum told the crew that the visit to Yap was for ‘regional engagement and crew respite’, which the Applicant contends was ‘plainly for the navy’s benefit … [in that] regional engagement clearly enough is an operational navy objective’ and that ‘crew respite, understood in context, [was] not merely a benefit for the crew but a benefit for the efficiency and effectiveness of the navy in operating that ship’.[11]

    [11] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 2, lines 41-46.          

18. The Applicant further contends that the memorandum told the crew that ‘your duty, whilst deployed, is to always remain cognisant of your role in supporting the Australian government’s intent,’ and that in all their activities they were to ‘consider Leeuwin’s reputation, the RAN’s reputation and Australia’s reputation’, concluding with the statement that ‘as a member of this organisation, you are always on duty’.[12] The Applicant submits that ‘the only proper understanding of this order … is that they [were] to be on duty in this deployment’.[13]

    [12] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 3, lines 7-20.

    [13] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 3, lines 27-29.

19. The Respondent, represented by Mr Dube, drew the Tribunal’s attention to Scambary and Military Rehabilitation and Compensation Commission[14] where Senior Member O’Donovan (as the Deputy President was), in relation to s 28 of the Act, said:

    It is reasonable to conclude that it was not Parliament’s intention to provide coverage [for liability] on the basis that a member is rendering defence service one hundred per cent of the time.[15]

    [14] (2023) AATA 3567.

    [15] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 17, lines 17-22.

20. The Respondent also contends that the Executive Officer’s memorandum ‘is not … as open and shut as the reliance on the sentence “that as a member of this organisation, you are always on duty”; rather, it ‘needs to be read in its entirety, and the suggestion … that “as a member of this organisation, you are always on duty”, in some way changed, or deemed, or made the veteran’s period of time at Yap a full period of rendering defence service, is not a conclusion which the Tribunal can reach”’[16]

    [16] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 17, lines 32-34 and page 30, lines 2-7.

21. The reconstituted Tribunal agrees with the Respondent that the memorandum is not determinative. However, the reconstituted Tribunal is also mindful that the Executive Officer’s instruction that ‘you are always on duty’ would no doubt be construed by subordinates as a lawful order from a superior officer.

22. The reconstituted Tribunal also considered the report on an inquiry into the Veteran’s death by the Inspector-General of the Australian Defence Force (‘IAGDF’) dated 3 November 2021, which included correspondence between the inquiry and Lieutenant Commander Kylie McNamara, then Executive Officer of HMAS Leeuwin.[17] In response to a proposition from the inquiry that ‘as I understand, at the time of his death, Petty Officer Pierson was not required for duty’, Lieutenant Commander McNamara advised ‘the member was on duty for the duration of the port visit’.[18] The Applicant also cites that the IGADF inquiry found that PO Pierson’s death ‘appears to have arisen in the course of his service in the defence force’.[19]

    [17] Exhibit R2, Joint Tender Bundle, Inspector-General of the ADF Report into Petty Officer James Pierson’s Death, pages 83-93.

    [18] Exhibit R2, Joint Tender Bundle, Email from Lieutenant Commander McNamara, page 55.

    [19] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 6, lines 16-19.

23. The Respondent contends that while the Tribunal can obviously have regard to the IGADF’s finding, it is not bound by it. The Respondent contends that ‘the IGADF was introduced for the purposes of investigating or dealing with questions related to military justice … which include investigations in respect of whether or not a death arose out of or in the course of defence service … [but] it was not a report prepared for the purposes of determining ultimately whether or not this particular event was a service death within the meaning of Act’.[20]

    [20] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 29, lines 27-45.

24. The reconstituted Tribunal agrees that the IGADF’s finding is not determinative. However, the reconstituted Tribunal is also mindful of the Applicant’s referral to the guidance in Commonwealth of Australia v Staddon,[21] where Fox J mentions ‘set[ting] a context for the whole’ in circumstances that similarly involved a RAN ship visiting a foreign port.[22]

    [21] (1984) 1 FCR.

    [22] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 8, lines 43-45 and page 9, lines 1-12.

25. In that regard, the reconstituted Tribunal notes that there was no evidence presented to the Tribunal as to why HMAS Leeuwin was exercising or deploying in Southeast Asian waters, nor what activities the ship was involved in, nor why port visits were specifically made to East Timor, the Mariana Islands and Yap, other than that mentioned in the IGADF’s report that the ship’s visit to Yap between 31 October and 5 November 2019 was part of the Australian Government’s Pacific Maritime Security Program.[23]

    [23] Exhibit R2, Joint Tender Bundle, Inspector-General of the ADF Report into Petty Officer James Pierson’s Death, page 85, paragraph 5.

26. The reconstituted Tribunal can only accept as informative, therefore, the Executive Officer’s statement that the ship’s visit to Yap was for ‘regional engagement’ and the Applicant’s contention that ‘regional engagement clearly enough is an operational navy objective’ and ‘that they [were] to be on duty in this deployment’. Moreover, because the operational objective in this instance was not disclosed or offered in evidence, the reconstituted Tribunal can only presume that HMAS Leeuwin’s deployment was a peacetime exercise and that the Applicant’s use of the word ‘operational’ is not intended to import a suggestion of ‘operational service’.   

27. Nevertheless, the reconstituted Tribunal appreciates that HMAS Leeuwin’s visit to Yap could be differentiated from visits by RAN ships to some other ports where, for example, the crew could be given permission to travel extensively, even to other countries, or to join their families in holidaying or engaging in a range of recreational activities some distance from the port.

28. In contrast, HMAS Leeuwin’s port visit was to a small, isolated island state in the Pacific, with a population of less than 12,000 and a land area of 100km².[24] Its crew of around 50, therefore, were extremely limited in where they could go and what they could do. And their demeanour and behaviour onshore would certainly have been more noticeable to the local population than, for example, the crew of a larger RAN ship on shore leave in San Diego.

    [24] While not presented in evidence, Yap’s population and land size would not be in dispute, as available at Yap State Government Federated States of Micronesia. Micronesia Federated States, 2018. Web Archive. Retrieved from the Library of Congress, <>

    The reconstituted Tribunal concludes, therefore, that while the late Veteran and indeed all crew members of HMAS Leeuwin generally could not be deemed to be ‘on duty’ for the duration of its deployment in terms of s 28 of the Act, he and they were held to a higher level of responsiveness and behaviour during the ship’s visit to Yap than would normally be expected from an ADF member while off-duty.

    Were crew members of HMAS Leeuwin ‘on duty’ while on shore leave at Yap?

29. The reconstituted Tribunal intends to consider later the question of whether the Veteran’s death occurred during an interval in or between periods of employment. It is considering here the narrow question of whether the conditions under which shore leave was granted changed the nature of that leave to not being leave but a continuation of his course of employment.  

30. The Applicant contends that under the heading of ‘Leave’, the Executive Officer’s memorandum indicated that what was being granted to the crew was not ‘in fact a form of leave in the formal sense … [but what is] colloquially known [as] shore leave, that is, permission to leave the ship and go ashore’, contending that this ‘certainly does not have the effect of undoing the order given to the crew that they’re on duty’.[25]

    [25] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 3, lines 35-39.

31. The Applicant further notes that the memorandum stated that ‘the ship will remain at eight hours’ notice for sea’, which the Applicant contends is colloquially known in navy language as ‘sailing orders’.[26] In this particular instance, the Applicant contends that this meant the crew ‘had to be fit to resume duty on short notice, which was fixed at eight hours, though they were instructed that it may be shortened in various circumstances … [and that they had] to remain contactable at all times’.[27]

    [26] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 3, lines 42-46.

    [27] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 3, line 47 and page 4, lines 1-3.

32. The Applicant also cites Commonwealth of Australia v Staddon[28] where, in that particular circumstance, Fox J said ‘the situation is not at all like the one where there is a shore-based unit of the navy and sailors attend there day by day having their homes in the suburb’.[29] The Applicant says that this relevantly applies to the Veteran, ‘who was given [shore] leave on certain understandings, made pretty clear, made pretty plain … by that standing orders document’.[30]

    [28] (1984) 1 FCR 95.

    [29] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 9, lines 22-25.

    [30] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 9, lines 27-29.

33. The Applicant notes that ‘the navy could’ve stood down its crew ... [and] granted various types of formal leave’.[31] Instead, the Applicant contends that the memorandum effectively ordered the crew ‘to be on duty … because this was … an official purpose for the ship and the crew being there’.[32] The Applicant asserts that ‘what the commanding officer ordered the veteran to do was to carry out this duty … [while] engaging in respite’ and submits that the Veteran was rendering defence service by undertaking that duty.[33]

    [31] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 4, lines 7-9.

    [32] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 4, lines 10-14.

    [33] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 4, lines 16-22.

1. The Respondent drew the Tribunal’s attention to QX07/1 and Military Rehabilitation and Compensation Commission[34] which, in a case with some similarities to the present, says:

   Whilst naval personnel on shore leave during an operational port visit may be subject to call out and return to the ship e.g. during an emergency, it is the tribunal’s view that that does not alter its conclusion in the factual circumstances of the applicant’s case, that the injury sustained … did not arise out of, or in the course of employment.[35]

   [34] (2007) AATA 1172.

   [35] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 26, lines 16-22.

2. The reconstituted Tribunal acknowledges the Applicant’s contention that the restrictions and constraints placed on shore leave from HMAS Leeuwin while at Yap were more onerous than would generally be expected of an ADF member while off-duty. They certainly meant that crew members had to remain on or near Yap and that the location and duration of their recreational and social pursuits were circumscribed. However, the reconstituted Tribunal considers that the restrictions were not sufficiently limiting or imposed obligations sufficient to deem that crew members on shore leave in Yap were on duty.

3. Accordingly, after due consideration of whether the Veteran was on duty for the duration of HMAS Leeuwin’s deployment and whether crew members were on duty while on shore leave in Yap, the reconstituted Tribunal concludes that the Veteran was not ‘on duty’ at the time of his death.

   Did the Veteran’s death occur during an interval in or between periods of his employment?

4. It follows that if the Veteran was not ‘on duty’ at the time of his death, the question arises whether the Veteran’s death occurred during an interval in or between periods of his employment. It is common ground in this instance that if the Veteran was not on duty at the time of his death, it would be appropriate for the Tribunal to consider whether his death while on shore leave from HMAS Leeuwin could be deemed to have occurred during ‘an interval’ in his employment.

5. The Respondent contends that an important issue for the Tribunal, in addressing whether the Veteran’s death occurred during an interval in his overall employment, is to determine whether the Veteran’s death arose at a place or arose in respect of an activity, citing that the High Court in PVYW made quite clear the difference between the two.[36] The Respondent also interprets the High Court’s mention of ‘the liability for everything that occurs while the employee is present at that place’ to mean ‘is not compensable’.[37]

   [36] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 22, lines 11-12.

   [37] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 24, lines 37-42.

6. The reconstituted Tribunal acknowledges the distinction between place and activity and appreciates the Respondent’s citation of considerable case law in that regard, including the Respondent’s assertion that in Comcare v Mather and Mitchell,[38](‘Mather’), which postdates PVYW, Kiefel J did not distinguish between whether the injury arose at a place or in respect of an activity.[39]

   [38] (1995) FCA 1216/56 FCR 456.

   [39] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 22, lines 8-11.

7. The reconstituted Tribunal also notes that the Executive Officer’s memorandum stated that ‘Yap is most famous for having excellent scuba diving sites’ and that ‘Yap’s tourist industry is centred on water activities, such as scuba diving’.[40] While it could be construed that Yap was being mentioned as a ‘place’, the reconstituted Tribunal considers that the term Yap in this instance is much broader than place, referencing Yap as one of the four states of the Federated States of Micronesia. The reconstituted Tribunal is satisfied, therefore, that the Veteran’s death could reasonably be deemed to have arisen in respect of an activity rather than at a place.     

   [40] Exhibit R1, T-Documents, T5, Temporary Memorandum by Executive Officer HMAS Leeuwin, pages 26 and 29.

8. The further consideration, as cited by the Applicant, is that PVYW also limits the liability for a compensable injury by reference to an inducement or encouragement, saying:

   [W]here an injury was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage;

   An injury sustained in these circumstances may be regarded as sustained in the course of the employee’s employment.[41]

   [41] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 8, lines 14-24.

   43.The further question arising, therefore, is whether the Veteran was ‘induced or encouraged’ to engage in an activity during shore leave on Yap that resulted in his death.

   Was the Veteran induced or encouraged to engage in an activity that resulted in his death?

9. The Applicant contends that while ‘the crew didn’t have to specifically apply or request permission [for shore leave], there was at least … an inducement, an encouragement to go ashore and engage in respite … [which after] an almost four-week sea journey on the ship, [is] hardly surprising’.[42]

   [42] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 5, lines 15-19.

10. As mentioned, the memorandum issued by the Executive Officer said that ‘Yap is most famous for having excellent scuba diving sites’ and that ‘Yap’s tourist industry is centred on water activities, such as scuba diving’. The Applicant contends that the language ‘doesn’t need to be more precise than that’ to be construed as inducement or encouragement.[43]

    [43] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 36, lines 2-5.

11. The Applicant also references an email from Commander Ian Campbell, the RAN’s fleet legal officer, dated November 2019.[44] The Applicant contends the email expressed the view that the diving activity in question was one of the activities the RAN had essentially encouraged the Veteran to do, expressing also that ‘this was not akin to a navy member engaging in some recreational activity in Australia after work on the weekend for purely personal reasons’.[45]

    [44] Exhibit R1, T-Documents, T13, Email from Ian Campbell, pages 116-117.

    [45] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 5, lines 43-46 and page 6, lines 1-2.

12. On the law, the Applicant cites the decision in Mather, where Kiefel J says that ‘[an employer’s] encouragement is not to be taken as of narrow meaning and limited to some positive action and in specific terms which might lead the employee to undertake a particular activity or attend at a particular place’.[46]

    [46] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 10, lines 15-18.

13. The Applicant notes that her Honour goes on to point out that it is important to look at ‘the ambit of statements, acts or conduct made by the employer’, saying that:

    These questions are not to be determined narrowly, by reference only to the particular circumstances of the particular occasion out of which the injury arose, but by having regard to the general nature, terms and circumstances of the employment.[47]

    [47] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 13, lines 24-25 and page 10, lines 33-36.

    An injury will, within the statement of principles, have occurred at a particular place if it can be found to fall within the ambit of the employer’s encouragement or inducement which may, in its terms, leave some matters to the decision of the employee.

    To be said to have, expressly or impliedly, induced or encouraged an undertaking or presence at some location could refer to, by way of example only, requirements, suggestions, recognition of practices, fostering of participation, or providing assistance and may include the exercise of discretion or choice on the part of the employee.[48]

    [48] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 11, lines 1-13.

    49.In considering the comments made by her Honour, and noting that related principles were  addressed in Dalgrin and Military Rehabilitation and Compensation Commission[49], the Applicant speculates as to the level of generality that might be needed to be construed as inducement or encouragement, suggesting ‘at the lowest level it might be scuba diving; at a mid-sort of level of generality it might be water sports, and at a high level it might be crew respite, or recreation’.[50]

    [49] (2020) AATA 5473.

    [50] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 11, lines 40-44.

    50.However, the Applicant contends that the High Court in PVYW, ‘in talking about whether the worker was doing the very thing that had been induced or encouraged … says nothing about [the] level of generality’.[51] Moreover, the Applicant says that ‘because … PVYW does not address this issue, Mather … [is] entirely consistent with the ultimate conclusion in PVYW … [and] nothing in PVYW or any subsequent authority, departs from the approach that Justice Kiefel took in Mather’.[52]

    [51] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 34, lines 23-26.

    [52] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 34, lines 33-40.

14. The Applicant agrees it may not be sufficient to say 'that if the navy induced general recreation or respite, that everything within that umbrella could be considered to have been induced’.[53] However, the Applicant contends that even if ‘there is a degree of discretion and choice left to the veteran … [that] does not deny that it was an activity that the navy induced or encouraged him to engage in’.[54]  

    [53] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 12, lines 4-6.

    [54] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 11, lines 46-47 and page 12, lines 1-2.

15. The Applicant concludes that ‘the facts clearly establish an inducement or encouragement … [that would be] sufficient to establish a finding that in fact the navy induced or encouraged the veteran to engage in scuba diving … [during] an interval within the overall period of service… [from which] a finding of the veteran having died whilst rendering defence service would be made out’.[55]

    [55] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 14, lines 25-34.

16. The Respondent contends that Military Rehabilitation and Compensation Commission v Dalgrin[56] is the most up-to-date expression of the principles relating to the question of activity and injuries happening in an activity during intervals, and particularly the guidance from Charlesworth J who, in distinguishing between general desirable personal characteristics, says:

    [56] (2022) FCA 83.

    The activity test in Hatzimanolis and PVYW is not concerned with ideals or expectations expressed in the abstract. It is formulated to ensure that there is an association between the particular activity bringing about the injury, and the particular employment sufficient to warrant the imposition of liability on the employer for the injury.

    In cases in which the activity test applies, the relevant association is found in the employer’s conduct of inducing or encouraging the relevant activity.[57]

    [57] Military Rehabilitation and Compensation Commission v Dalgrin (2022) FCA 83, page 23, paragraph 72.

    54.Accordingly, the Respondent contends that, in this instance, ‘the characterisation of “activity” as a trickle-down of respite for water activities, or scuba diving, is not consistent with the case law following PVYW’, contending also ‘that’s not a correct interpretation of what the case law establishes’.[58]

    [58] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 29, lines 4-8.

    55.The Respondent also contends that in relation to the Executive Officer’s minute, ‘the Tribunal couldn’t read into [it that it] is in some way an inducement or encouragement to engage in scuba diving’, contending that the Tribunal in Turner-Dauncey and Military Rehabilitation and Compensation Commission[59] has said ‘emphasis is necessarily placed on the encouragement in question being directed at a specific activity’.[60]

    [59] (2016) AATA 551.

    [60] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 28, lines 7-9.

    56.In this instance, the Respondent contends that the mention of scuba diving in the Executive Officer’s memorandum is instead ‘part of the aspects of what Yap is, similarly that it’s known for its stone money’, concluding that ‘it’s a memorandum which deals with a number of different aspects of what happens, or what will happen whilst the vessel is in Yap’.[61]

    [61] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 30, lines 12-14.

    57.The Respondent further contends that in terms of the description and detail provided in the Executive Officer’s memorandum, it says with respect to local substances that ‘betel nuts and kava are popular throughout the region’.[62] However, the Respondent contends that the memorandum ‘doesn’t say whether or not consumption of betel nut and kava, whilst on shore leave, is or isn’t prohibited’.[63] The Respondent says ‘it is [effectively saying “this is what you might be exposed to, or what might arise whilst the vessel is in Yap.” It is not saying, “these are the things you should be doing” or “these are the things we want you to do while you are at Yap”’.[64]

    [62] Exhibit R1, T-Documents, T5, Temporary Memorandum by Executive Officer HMAS Leeuwin, page 29.

    [63] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 30, lines 27-28.

    [64] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 30, lines 28-31

17. The Respondent contends that similarly under ‘Water activities’, the Executive Officer’s memorandum ‘[is] drawing the attention to what can be done. It’s not inducing or encouraging. If anything, it’s warning members … that while there is a decompression chamber in Yap, its availability in level and staff experience, is considered to be variable’.[65] The Respondent contends ‘it’s hard … to read that as an inducement or encouragement to scuba dive’.[66]

    [65] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 30, lines 33-37.

    [66] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 30, lines 37-38.

18. The Respondent also contends that the email from Commander Campbell, the RAN’s fleet legal officer, needs to be seen as ‘a legal opinion from a legal officer in the navy’ but, in terms of the weight that [the Tribunal can] afford to it … it’s something the tribunal can take into account, but to say that in some way it is a conclusive view of whether or not it was a service death, that is taking that proposition far beyond what that email demonstrates’.[67]

    [67] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 31, lines 24-34.

19. The Respondent also contends that ‘there was an element of personal choice [in the Veteran’s decision to scuba dive]’, particularly noting ‘the differences in circumstances upon which a number of different service people made those decisions to go on that particular dive’.[68] The Respondent contends that ‘the fact that other people had been on other dives, independently organised, does … lead to a conclusion … that it was a private activity, and was not something which could be considered to be defence service’.[69]

    [68] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 32, lines 12-15.

    [69] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 30, lines 17-20.

20. The Respondent also draws the Tribunal’s attention to ‘the factual aspect that [HMAS Leeuwin] also visited Timor prior to getting to Yap, and there’s some evidence about whether or not some of the crew were considering diving while there’, citing the interview of Leading Seaman Searle, where ‘she talks about … what had been contemplated in Timor’.[70]

    [70] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 33, lines 5-11.

21. The reconstituted Tribunal agrees with the Respondent that the email from the RAN’s fleet legal officer is not determinative. It also agrees that the Veteran taking certain items of his own diving gear on board at the start of the deployment, as mentioned in a statement by Leading Seaman Searle to the IGADF inquiry, clearly indicates an expectation that he would have the opportunity at some stage to engage in diving activities, although there does not appear to have been any evidence tendered as to the Veteran’s reasoning behind such expectation.[71]

    [71] Exhibit R2, Joint Tender Bundle, Witness Statement Leading Seaman Searle, pages 4-5.

22. The reconstituted Tribunal has considered the question of the level of generality inherent in the Executive Officer’s memorandum. The reconstituted Tribunal agrees that if the memorandum had only mentioned ‘water activities’, that likely would not have been sufficient to be deemed as inducement or encouragement to engage in scuba diving. However, given the specific mention of scuba diving, the reconstituted Tribunal considers the wording of the memorandum imports more than ideals or expectations expressed in the abstract, which has been cited as ‘the activity test’ in PVYW.

23. The reconstituted Tribunal also notes that the VRB’s determination included mention that the principals of the dive company were invited, along with other local business representatives, to a cocktail party on board HMAS Leeuwin on 1 November 2019, two days before the Veteran and other members of the crew participated in the dive activity.[72] Whether the Veteran attended is not in evidence. However, the function and its purpose would likely have been common knowledge among the crew, which the reconstituted Tribunal takes into account in evaluating the questions of inducement or encouragement.

    [72] Exhibit R1, T-Documents, T13, Decisions and Reasons of VRB, page 113, paragraph 28.

24. The reconstituted Tribunal has also considered the influence of personal choice, as opposed to inducement or encouragement, in the Veteran’s decision to engage in scuba diving. While this was addressed by both parties, neither suggested nor attempted to apportion the extent to which personal choice was a factor in his decision, other than the Respondent noting that the Veteran had taken certain items of personal dive gear on board at the start of the deployment.[73]  

    [73] Exhibit R2, Joint Tender Bundle, Witness Statement by Leading Seaman Searle, pages 4-5.

25. The reconstituted Tribunal considers it would be speculative to attempt to apportion or give weight to the factors that influenced the Veteran’s decision-making or, indeed, to speculate whether the Veteran would have engaged in the activity if the Executive Officer’s memorandum had not included mention of water activities or scuba diving. The reconstituted Tribunal accepts that personal choice was certainly a factor. However, the reconstituted Tribunal also notes the Applicant’s contention, citing Mather, that liability may exist regardless that ‘the ambit of the employer’s encouragement or inducement … may, in its terms, leave some matters to the decision of the employee’.[74]

    [74] Transcript of Proceedings, AAT No. 2022/10268 dated 16 April 2024, page 11, lines 2-4.

26. In making an evaluative judgment, the reconstituted Tribunal considers that the Executive Officer’s memorandum contained words and sentences that could not be interpreted other than saying to crew members of HMAS Leeuwin that during their shore leave in Yap they had a responsibility to help promote Australia’s regional engagement. Furthermore, the reconstituted Tribunal considers that, within that context, the specific mention in the memorandum that ‘Yap’s tourist industry is centred on water activities, such as scuba diving’, was ‘expressly or impliedly’ an encouragement for crew members to consider engaging in that activity.  

1. In summary, the reconstituted Tribunal considers there is a relevant association between the particular activity bringing about the Veteran’s death, namely scuba diving, and the employer’s conduct of inducing or encouraging that activity sufficient to warrant the imposition of liability on the employer for the injury.

   CONCLUSION

2. Having regard to the evidence before it and for the reasons given above, the reconstituted Tribunal is reasonably satisfied that the Veteran was not on duty for the duration of HMAS Leeuwin’s deployment, nor was he on duty during his shore leave on Yap. However, the reconstituted Tribunal is also reasonably satisfied that the Veteran’s death happened during an activity that he had been induced or encouraged to engage in during an interval within his course of employment.

3. Accordingly, the reconstituted Tribunal is reasonably satisfied that the Veteran’s death was a ‘service death’ within the meaning of s 28(1) of the Act. It flows logically that relevant dependants are eligible for compensation.

   DECISION

4. The decision under review is set aside and remitted with the direction that the Veteran’s death was a ‘service death’ within the meaning of s 28(1) of the Act.

   I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for the decision herein of Senior Member George and Lieutenant Colonel Ormston.

   [sgnd]

   ………………………………..
   Associate

   Dated: 12 August 2024

Dates of hearing:  15-16 April 2024

Counsel for the Applicant:         Mr M Black
Solicitor for the Applicant:          KCI Lawyers

Solicitor for the Respondent:     Mr B Dube,

  Sparke Helmore

Document	Description	Date lodged
Exhibit R1	T-Documents	30 January 2023
Exhibit R2	Joint tender bundle	15 April 2024
Transcript No. 2022/10268	Transcript of proceedings of Administrative Appeals Tribunal hearing	15-16 April 2024

EXHIBIT REGISTER