QX07/1 and Military Rehabilitation and Compensation Commission
[2007] AATA 1172
•27 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1172
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/234
GENERAL ADMINISTRATIVE DIVISION ) Re QX07/1 Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date27 March 2007
PlaceBrisbane
Decision The decision under review is affirmed. The possibility of an Act of Grace payment is raised.
.........[Sgd]..........
EK Christie
Member
CATCHWORDS
COMPENSATION – Commonwealth employees – operational port visit – shore leave – substance use – “hypoxic brain damage” – injury arising out of, or in the course of, employment – serious and wilful misconduct – words and phrases: “arising out of, or in the course of employment” – Act of Grace Payment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss. 4, 6, 14
Roncevich v Repatriation Commission (2005) 222 CLR 115
Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473Comcare v Mather and Anor (1995) 56 FCR 456
Gregory v Comcare Australia (1997) 72 FCR 196
Comcare v McCallum (1994) 49 FCR 199
Briginshaw v Briginshaw (1938) 60 CLR 336
Elvin and Comcare (AAT 12818, 21 April 1998)
Re Whittaker and Department of Defence (AAT 13273, 11 September 1998)
REASONS FOR DECISION
27 March 2007 Dr EK Christie, Member Introduction
1. This is an application for a review of the decision made by the delegate of the Military Rehabilitation and Compensation Commission on 16 March 2005 that disallowed the applicant’s claimed brain injury, “hypoxic brain damage”, as it did not arise out of the course of employment. In making this determination it was concluded that:
“On the basis of the factual evidence to hand, I am of the view that your alleged behaviour in using drugs had no relationship to your employment. Notwithstanding that you have no recollection of these events, in the circumstances, I intend relying upon the evidence of other seamen who were in your presence at the time.
I am satisfied that your alleged drug use on the day, resulting in your claimed condition of hypoxic brain injury, has no relationship to your employment.” (PT18, Folio 94).
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit R1] and the various exhibits lodged by the parties.
3. The applicant was represented at the hearing by Ms B Carter-Nicoll of Counsel. The respondent was represented by Mr B Dubé, Solicitor, Sparke Helmore.
Issues before the Tribunal
4. The only issues for the Tribunal to decide were whether the “hypoxic brain damage” injury arose out of or in the course of employment, and whether the injury was caused by the applicant’s serious and wilful misconduct.
General Facts
5. The general facts, not in dispute, were that the applicant served in the Royal Australian Navy (RAN) having enlisted on 6 November 2000. The applicant was discharged, on invalidity grounds, in June 2005, at the rank of Able Seaman.
6. In 2003, the applicant served on a RAN frigate on operational service in the Persian Gulf as part of “Operation Catalyst”. Following the completion of this six month deployment, the frigate returned to Australia in November 2003. The frigate had a three day operational port visit at Goa, India from 19 November to 21 November 2003.
7. Crew of the frigate were granted shore leave, at Goa, over the two day period 20 to 21 November 2003.
8. During shore leave at Goa the applicant suffered an “hypoxic brain injury”.
9.It is not in dispute that the applicant has a permanent and serious impairment.
10. In a medical report prepared by Dr RA Hazelton, Director, Brain Injuries Rehabilitation Unit, Princess Alexandra Hospital, Brisbane dated 8 August 2005, Dr Hazleton stated:
“In 2003 [the applicant] sustained a cardiac arrest whilst on shore leave with the navy. As a result [the applicant] has sustained a severe acquired brain injury.
[The applicant] is virtually blind, dependent on an attendant for wheelchair mobility and requires hoisting for transfers. [The applicant] requires all self cares to be undertaken for him, as are all domestic and instrumental ADL’s. He has a guardianship for all health, financial and lifestyle decisions.
[The applicant] is totally and permanently disabled and requires an attendant carer present at all times. (Exhibit R2, ST7, Folio 254).
11. The evidence of Medical Officer in Charge of the Balmoral Naval Hospital was that:
“[The applicant] has a level of disability that is consistent with hypoxic brain injury resulting in ischaemia of the brain. His history suggests that this is due to a combination of respiratory depression, cardiopulmonary failure and or cerebral oedema. His disabilities are unlikely to significantly improve in the long term”. (Investigation Report Lt. Cmdr. Duncan, Exhibit R2, PST5 Folio 115).
12. Immediately following the incident in Goa, and in order to assist the Commanding Officer of the frigate’s task to investigate the facts, the three sailors from the frigate who were present with the applicant at the tattoo parlour, at the time of the incident, prepared unsigned statements on 21 November 2003 describing contemporaneous events associated with the incident leading to the applicant’s injury. In giving their statements, the sailors were not afforded the opportunity to claim privilege against self-incrimination. Having taken legal advice subsequent to preparing these statements, the members gave no further evidence to the Investigating Officer (Exhibit R2, PST 5).
13. The Tribunal has only attached weight to the evidence of LSMT [Mc] and ABMT [F], two of the three sailors from the frigate who were present with the applicant at the time of the incident and whose unsigned statements, at the relevant time, were the subject of examination at the Tribunal hearing. The third sailor who was present with the applicant at the time of the incident (ABWTR [S]), although summonsed to appear at the hearing, could not be located; his statement prepared on 21 November 2003 was not the subject of examination at the hearing.
14. In addition, the Tribunal has given little weight to the untested statement of ABMT[ W] relating to rumours of past drug use by the applicant (Exhibit R2, PST5 folios 162-164).
15.“In addition” evidence at the hearing was given by:
(i)Lt [S] (now Lt Commander, Medical officer on board the frigate at the time);
(ii)Lt Cmdr [D] (Investigating Officer and Author of the “Report of the Investigating Officer into Circumstances Surrounding the Ingestion of an Illegal Substance by [the applicant] by [the applicant] on 20 November 2003 in Goa, India” (Exhibit R2, PST 5);
(iii) the applicant’s guardian (a serving member of the RAN);
In addition, a statement prepared by POETC3 [B] (Retd), dated 24 October 2006, was verified by him at the hearing but not subject to any examination.
Statutory Requirements and Legal principles
(a) Statutory Requirements
16. Section 4(1) of the Safety, Rehabilitation and Compensation Act 1988 [“the SRC Act”] defines injury [at para (b)] to mean “an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment”… (Emphasis added).
17. Section 6 of the SRC Act prescribes the circumstances for an injury to arise out of or, in the course of, employment:
“6.(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) …; or
(b) while the employee:
(i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; …” (Emphasis added).
18.Section 14 of the SRC Act provides for compensation for injuries:
“14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment”. (Emphasis added).
19. Section 4(13) of the SRC Act deems an employee who is under the influence of alcohol or a drug to be guilty of “serious and wilful misconduct” for the purposes of s 14(3) [“Compensation for Injuries”].
(b)Legal Principles
· Injury Arising out of, or in the Course of, Employment
20. In accordance with ss. 4 and 6 of the SRC Act, the interpretation of the phrase, “arising out of, or in the course, of employment” is a foundation for the meaning of the term, “injury” that must be satisfied. Moreover, the construction of the meaning of this expression must be considered in the context of “[legal] authority that applies to the applicable statutory language”: per Kirby J in Roncevich v Repatriation Commission (2005) 222 CLR 115 at 144.
21. In Roncevich’s case, a decision under the Veterans’ Entitlements Act 1986, the High Court expressly approved the following passage in the dissenting judgment of Heerey J in the Full Federal Court (at 123):
“…In Henderson v Cmr of Railways (WA) (1937) … where the High Court was concerned with a workers’ compensation statute which spoke of injury “arising out of or in the course of employment”, Dixon J said:
‘To be in the course of employment, the acts of the workman 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…
the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties.”(Emphasis added by Herrey J)
22. In Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473, the High Court majority observed that an injury may arise out of, or in the course of, employment where the injury is sustained in an interval where work is undertaken in a single period (or episode) of work; in addition such an injury may be sustained in the interval between two discrete periods of work. The reasoning of the High Court majority in regard to an injury arising out of, or in the course of, employment in the context of an interval during a single episode of work, or the interval between two discrete periods of work, is relevant:
“Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern case show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen” (at 484). (Emphasis added).
23. In Comcare v Mather and Anor (1995) 56 FCR 456, Kiefel J considered the meaning and application of the expression “arising out of, or in the course of, employment” by reference to the approach of the High Court in Hatzimanolis’ case. Specifically, where an employer expressly or impliedly induced or encouraged the employee to engage in that activity during that interval at a particular place or in a particular way. Kiefel J stated (at 462):
“The place at which or the activity undertaken at the time of injury was not said in Hatzimanolis to have been previously expressed or identified by the employer. … An injury will … 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”.
Later (at 462), Kiefel J stated:
“In my view “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. …
…the question will be whether the attendance at the place at which or the undertaking in which the employee is involved when injured in an interval falls within the ambit of statements, acts or conduct made by the employer and what may be said to logically arise from them. And in each case, importantly, they must be viewed in the background of the particular employment and the circumstances in which the employer is then placed.
…The terms of the inducement or encouragement here were such as to leave to the soldiers some choice as to location and activity to be undertaken during the interval in question. Attendance at locations outside the boundaries or even beyond points which could be conveniently accessed by available transport in the short period allowed and undertaking activities which could not be regarded as social or recreational pursuits may not fall within the compass of the matters in which the Army might expect or foresee the soldiers participation”. (Emphasis added).
24. In Gregory v Comcare Australia (1997) 72 FCR 196, Cooper J made the following observations on the majority decision in Hatzimanolis (at 201):
“The judgment of the majority in Hatzimanolis did not, in any view, affect the proposition that for an injury to be said to arise in the course of employment the connection which must be established between the occurrence of the injury and the employment is a temporal connection (see Commonwealth v Lyon at 303-304). What their Honours did in Hatzimanolis was to provide to tribunals of fact reasoned guidance, by way of a ‘unifying principle’, in determining whether that temporal connection exists in circumstances where the injury in question is sustained during an interval between periods of actual work. Their Honours concluded that the distinction between a compensable and a non-compensable injury occurring in such an interval, where the employer had induced or encouraged the employee to spend the interval at a particular place or in a particular way and the injury was sustained at that place or while the employee was engaged in that activity, was to be drawn by a characterisation of the period or periods of work of the particular employee. That characterisation highlights the temporal nature of the connection between the place or activity at or during which the injury occurred and the employment.
The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. This is because … the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained. (Emphasis added).
and (at 202):
“That is not to say that an injury occurring in an interval between two discrete periods of work can never be one occurring in the course of employment. In any given case, there may be a feature or features of the particular facts and circumstances which establishes a sufficient temporal connection between the place or activity and the employment”.
25. In Comcare v McCallum (1994) 49 FCR 199 at 204, Lockhart J applied Hatzimanolis’ case and, in this regard, made the following observations in relation to the nexus between the injury sustained and the course of employment:
“It does not follow that the place where injuries were sustained by the [employee] and the circumstances in which they were sustained are irrelevant to the conclusion whether they occurred during the course of…employment … If, for example, [the employee] had chosen to spend [the date and time] at [a particular place] and sustained injuries there a question would arise whether they were sustained during a relevant interval … which would be seen as part of the course of employment, even in the overall…episode of work [at a location away from home]”.
· Serious and Wilful Misconduct and Entitlement to Compensation
26. In Comcare v Mather and Anor (at 463) Kiefel J made the following observation on the application of Hatzimanolis’ case in the context of s 14(3):
“In Hatzimanolis (at 484) the Court obviously considered it necessary, having just referred to the undertaking of an activity, to observe that gross misconduct would however disentitle an employee, since the legal conclusion would be that he or she must be taken as acting outside the course of employment. The Court was not confronted by a situation which has regard to a statutory exemption such as s 14(3). The observations of the Court of Appeal of the Northern Territory in Tiver Constructions Pty Ltd v Clair (1992) 110 FLR 239 at 246-48 are apposite and in particular the conclusion that the Court in Hatzimanolis is not to be taken as laying down a ‘universal proposition of law that whenever gross misconduct occurs during an interval between episodes of work, the employee must be outside the course of the employment’. Here, clearly, the statute permits recovery of compensation even in cases of serious misconduct where death or serious impairment results. Compensation is payable to the dependants of Corporal Mitchell notwithstanding that he was almost certainly under the influence of alcohol. If Sergeant Mathers was (and this does not seem to me to be concluded by the level of alcohol found to be present in his blood) the Tribunal nevertheless found he had suffered serious impairment and this was not challenged (at 463-64).”
· Civil Standard of Proof
27. The reasoning of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 as to the legal standard of proof in civil litigation, the balance of probabilities, is particularly relevant:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences” (Emphasis added).
Consideration Of The Issues
28. The first issue for the Tribunal to consider is whether the injury arose out of, or in the course of, employment. The “hypoxic brain damage” was sustained in an interval of shore leave during an operational port visit at Goa, India. The frigate had completed six months of operational service in the Persian Gulf and was returning to its home port in Australia.
29. The principles formulated in Hatzimanolis’ case require a consideration of how the interval of shore leave was placed in the scheme of employment and what the Navy had said, done, or encouraged concerning the activity, or location of the applicant, within that interval of shore leave. That is, the question is whether the attendance at the place, or the undertaking, in which the applicant was involved when injured during the interval of shore leave, falls within the ambit of statements, acts or conduct made by the Navy and what may be said to logically arise from them: see Mather’s case.
30. The Tribunal has considered the following evidence and information before the Tribunal:
· that the frigate conducted an operational port visit to Goa during the period 19 November 2003 to 21 November 2003: see Determination by Delegate 16 December 2004 (Exhibit R1 PT14, Folio 83);
· that sailors from the ship were encouraged (used in its broadest sense) to go on shore leave whilst docked at port. Whilst on shore leave, sailors could be called back at any time e.g. an emergency situation, so that they were required to notify the ship of the phone number of the hotel where they stayed (oral evidence, ABMT [F]);
· that the ship’s company were provided with a port brief prior to disembarkation in Goa by the ship’s Executive Officer. The topics covered in the brief were (a) Introduction (b) Information on Goa (c) Routines and (d) Specific do’s and do nots for the visit (Exhibit R2, PST5 Folio 124);
· the conclusion of the Investigating Officer was that the port brief was adequate for the identified risks associated with the visit to Goa, India.
31. Accordingly, the Tribunal concludes that the Navy has expressly, or impliedly, induced or encouraged the applicant, as a member of the frigate, to spend the interval at the port of Goa.
32. The next question for the Tribunal to consider, relates to the applicant spending the interval at the port of Goa. Specifically, whether the Navy, expressly or impliedly, encouraged the applicant to spend the interval at the port of Goa, in a particular way i.e. by engaging in an activity during that interval in a particular way. The activity, in question, relates to substance use (“china white”) whilst on shore leave.
33. The Investigating Officer’s report indicates that the four members of the frigate proceeded ashore on leave on 20 November 2003 at approximately 1300h. The members had arranged accommodation at a hotel at Baga Beach in Goa. The four sailors entered a tattoo parlour in Goa later that afternoon. During this period, the three sailors found the applicant in a semi-conscious state. The three sailors administered CPR first aid, whilst seeking taxi transport for emergency treatment. They were first taken to a medical centre some 30 minutes away. From this medical centre, the applicant was then taken by ambulance to the Goa Medical College Hospital. This trip took a further 30 minutes.
34. ABMT [F] noted in his statement of 21 November 2003 (Exhibit R2, PST5, folio 139), the following sequence of events at the tattoo parlour:
“I’d been dying for a cigarette for hours everywhere I had asked didn’t have any. So I asked Moona [the tattooist] if he had a cigarette. He said “of [course] my friend one hundred and ten percent”. With a smile pulled out a cigarette that looked perfectly normal. And tasted like a cigarette. Moona smiled, I gave him the cigarette back and he then passed it to Brian. “He said good,” we said yea. He said, “white china”, what is it? “white china, white china” What’s that? Not speed not cocaine, a little bit of both”.
35. Under cross-examination, ABMT [F] acknowledged that he saw the applicant smoke the cigarette after his own reaction to smoking the cigarette (“whoa – what the hell was that?”). He passed the cigarette to the applicant after he asked for it. However, he did not see the applicant snort a line of “china white” as he had blacked out in the tattoo parlour for a short period.
36. LSMT [Mc], in his oral evidence, acknowledged that the tattooist had produced a yellow to white powder (“china white”). He tasted the china white by dipping a finger into the powder. It tasted sour. He acknowledged the following statement he had made in his unsigned statement of 21November 2003:
“…[B]rian had a straw or small pipe like thing and was making a line he snorted it on completion he stood up and sort of spoke to himself why did I do that or something along those lines he sat down.” (Exhibit R2, PST 5, Folio 141).
37.He said that he noticed the applicant unconscious about 20 minutes later.
38. Toxicological analysis was performed on samples of blood and urine taken from the applicant at the Goa Medical College Hospital and these demonstrated metabolites of opiates only. Metabolites are the break-down products of drugs which can be measured and allow determination of the class of drug consumed. The original type of opiate e.g. heroin, morphine etc was not determined: See Report of Lt Cmdr [S] (Exhibit R2, PST 5, Folio 148).
39. Based on the complementary direct evidence and statements of LSMT [Mc] and ABMT [F], the Tribunal finds, at the civil standard of proof, that the applicant found himself in circumstances where he was exposed to an opiate derivative, “china white”, that he had initially smoked a cigarette in which the tip of the cigarette had been placed in the substance – before he later snorted an unknown amount of the “china white” substance.
40. These findings of fact must be considered in the context that the Navy has a zero tolerance policy towards illicit drugs. The Naval Policy document Defence Instructions (Navy) [17 May 2002, PERS 13-1], at para 5, states that “[t]he illegal use of drugs will not, in any circumstances, be condoned in the Navy” (Exhibit R2, ST4, folio 78).
41. In addition, alcohol and drug education was performed on a regular basis according to the current policies … PERS 13-1 (illegal drugs). The guidance for drug education is paragraphs 12-16 of DI (N) PERS 13-1. Para 13 states that education is carried out:
(a)during all new entry courses;
(b)during all leadership courses;
(c)before main leave periods in shore establishments; and
(d)annually and before overseas deployment by commissioned ships (Exhibit R2, PST 4, Folio 79).
42. The applicant had also signed a Declaration of Enlistment, on 6 November 2000, acknowledging that he had been made aware of Navy policy in that the prohibited use of illegal drugs may lead to discharge or termination of appointment from the Navy.
43. The Tribunal has considered the above findings and, applying established legal principles, concludes that the “hypoxic brain damage” sustained by the applicant during an interval of shore leave, whilst his frigate was on an operational port visit at Goa, India, did not “arise out of, or in the course of, employment” for the following reasons:
(i) The Navy did not organise the shore leave plans of the applicant and the sailors who accompanied him. Decisions as to the choice of the particular place to go and activity to be undertaken whilst on shore leave were matters for the applicant (and accompanying sailors) to decide during the interval in question.
(ii) However, during the interval of shore leave in which the applicant sustained “hypoxic brain damage” from the use of an illicit drug, it could not be said to be a matter in which the Navy might have expected or foreseen the applicant to have participated given (a) the Naval Policy on Illicit Drug Use and (b) the Declaration signed by the applicant on enlistment acknowledging the Naval Policy on illicit drugs and the consequences for breaches.
(iii) The ongoing education programmes on drug awareness for all sailors is a further relevant consideration in this regard. In particular, that alcohol and drug education was performed on a regular basis according to current naval policies - from the time of entry onwards. In the applicant’s case, this involved alcohol and drug presentation at recruit school – including completion of an examination in order to graduate from recruit school. Module 23 related to an “Alcohol/Other Drug” presentation. The applicant scored 100% for this module. The Module makes one reference to “china white” as a slang term for “heroin” (Exhibit R3).
(iv) The facts before the Tribunal indicate that the response received from the tattooist indicated that “china white” was an illicit substance, according to naval drug education training documents.
(v) Accordingly, the injury sustained could not be said to have arisen, logically, from statements, acts or conduct on the part of the Navy. At the time of the injury, the applicant was doing something which could not be said to be reasonably authorised under Naval Policy in order to carry out his duties consistently with Naval Policy.
(vi) It follows that the use of an illicit drug was not reasonably incidental to the provision of shore leave away from the frigate - given the particular circumstances of Naval Policy, drug awareness education and the applicant’s own declaration in this regard.
(vii) The applicant engaged in an activity during the shore leave interval that had no connection with his employment, save that had his service with the Navy not taken him to a particular place (Goa, India), the injury would not have been sustained at that particular place, but for that activity undertaken during shore leave. It could not be concluded that the applicant’s use of an illicit substance, at the relevant time, was encouraged by the Navy through the grant of operational port leave.
44. Accordingly, the Tribunal finds that, in these factual circumstances, the Navy has not expressly or impliedly induced or encouraged the applicant to spend the interval of shore leave during an operational port visit at Goa in a particular way. Specifically, an activity related to drug use.
45. 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 this does not alter its conclusion in the factual circumstances of the applicant’s case that the injury sustained from substance use did not “arise out of, or in the course of employment”.
46. The Tribunal next considers the application of s 4(13) of the SRC Act. Specifically, the question of “serious and wilful misconduct” and whether the applicant was under the influence of alcohol.
47. The Investigating Officer’s report indicates that the four sailors from the frigate who went to the tattooist proceeded ashore on leave on 20 November 2003 at approximately 1300h (Exhibit R2, PST 5, Folio 104).
48. LSMT [Mc]’s oral evidence before the Tribunal was that they commenced drinking around 0700-0800 hours, that day; drinking ended at 1500-1800 hours. In the first hour, he said that they consumed two “Kingfisher” beer long necks. Under cross-examination he said that they had drunk 5 “Kingfisher” beer long necks and 5 Bacardi Breezers. His unsigned statement gives only limited details of the amount of alcohol consumed.
49. ABMT [F]’s oral evidence before the Tribunal was that they commenced drinking at around 0800 hours before being picked up by a taxi (two “Kingfisher” beer long necks were consumed). During the day, they drank another three Kingfisher beer long necks and about four Bacardi Breezers. However, in his unsigned statement, he refers to drinking “Kingfisher” beer (two bottles) and Fosters beer (one bottle) and three Bacardi Breezers. Furthermore, that they had commenced drinking in the first hour of leave from the ship at 1230h.
50. The Ship’s Medical Officer (now Lt Cmdr [S]) gave evidence to say that she had seen the three sailors, who had been present with the applicant at the tattoo parlour, at the Goa Medical College Hospital. During re-examination, Lt Cmdr [S] stated that, at this time, she had no suspicion that the sailors were under the influence of alcohol or a drug.
51. The alcohol concentration was not analysed from the blood or the urine of any of the sailors.
52. The Tribunal concludes because of the evidence and information before it [i.e. “indefinite testimony”, the Briginshaw test], that it cannot be established on the civil standard of proof that the applicant was under the influence of alcohol and so guilty of “serious and wilful misconduct”. In particular, the evidence before the Tribunal as to the length of time alcohol was consumed on 20 November 2003 (i.e. based on the time they had left the frigate) as well as the amount of alcohol consumed and the volume of a “Kingfisher” beer long neck (LSMT [Mc] 1 Litre, ABMT [F] 750 ml to 1 litre) and the beer’s alcohol content.
53. In addition, Lt Cmdr [S])’s evidence is relevant in this regard in that there was no suspicion, on her part, that the sailors were under the influence of alcohol at the time she had seen them at the Goa Medical College Hospital.
54. The absence of any quantified measurement of blood (or urine) alcohol concentration also precludes any conclusion to be made in relation to the question of proof and the influence of alcohol, at the relevant time.
55. The applicant has submitted that s. 14(3) of the SRC Act may be applied to this application for review. Notwithstanding the Tribunal’s finding on serious and wilful misconduct in the applicant’s factual circumstances, it is relevant that in Elvin and Comcare [1998] AATA 276, the Tribunal proceeded, for its consideration of s. 14(3), on the basis that the injury suffered by the applicant arose out of, or in, the course of employment (at para. 4). In Re Whittaker and Department of Defence (AAT 13273, 11 September 1998), the undisputed facts were that applicant, a serving member of the Navy, returned to Garden Island, Sydney, after spending some days at sea; after being stood down he travelled on his motor cycle from Garden Island to his home. Given this factual situation, the injury suffered by the applicant arose out of, or in the course of employment as the applicant would come within the s. 6(b)(ii) provision of the SRC Act as he was travelling between his place of residence and place of work.
56. For all of the above reasons, the Tribunal concludes there is no statutory basis under the SRC Act which would entitle the applicant to receive compensation for his “hypoxic brain injury” sustained during operational port leave at Goa, India.
57. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The legislation gave the Tribunal no other option than to make such a finding. There is no discretion in the legislation for the Tribunal to make any other decision based on the proved facts before the Tribunal, as a matter of law.
58. However, the Tribunal does raise for consideration by the applicant’s legal representative, Finance Circular Number 2006/05 (Australian Government, Department of Finance and Administration). The Finance Circular particularises, amongst other things, the principles and application for Act of Grace payments by Commonwealth Government agencies under the Financial Management and Accountability Act 1997 (‘FMA Act’).
59. The following materials in the Finance Circular give an overview of Act of Grace payments:
“13. The act of grace powers under section 33 of the FMA Act allow the Finance Minister and his or her delegates to authorise one-off and periodic payments to individuals or other bodies (such as companies) in special circumstances.
14. The act of grace mechanism:
§ may be appropriate in relation to losses that have occurred as a direct result of:
a. the involvement of an agency of the Australian Government, where that involvement had an unintended outcome in the claimant’s circumstance; or
b. the application of Commonwealth legislation, where the application has had an unintended, inequitable or anomalous effect on the claimant in his or her particular circumstances (including in cases where the agency has acted correctly in administering the legislation involved);
§ may operate in such a way that conditions are attached to payments;
§ is used where the paramount obligation to the claimant is moral, rather than legal (see paragraph 20 of Attachment B: Act of Grace Payments);
§ is generally confined to claims related to FMA Act agencies and the legislation they administer;
§ can cover economic and non-economic losses sustained; and
§ is not applicable in circumstances where:
a. the proposed payments could be construed as literally supplementing other payments that have explicitly been ‘capped’ by Parliament in other legislation; or
b. in some cases where there is legislation that sets conditions for particular benefits, and the proposed act of grace payments would be applied to all or most beneficiaries on an ongoing basis, or for a significant period of time; or
c. the proposed payments could be construed as creating a scheme that would replace case-by-case consideration of the merits of specific claims.”
60. Attachment B of the Finance Circular describes the Act of Grace power, and the principles and processes that underlie decisions to accept or decline requests
“The nature of the act of grace power
8. Subsection 33(1) of the FMA Act provides:
“If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability): one or more payments of an amount specified in the authorisation (or worked out in accordance with the authorisation); periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during the period specified in the authorisation (or worked out in accordance with the authorisation)’…
Which types of claims are generally examined in the act of grace context and what are the exceptions to the ‘rules’?
21. The conditions under which act of grace claims are approved can broadly be characterised as where the Minister or delegate considers the Australian Government has a moral obligation, as opposed to a legal obligation, to provide redress because:
§ the direct role of an agent/agency of the Australian Government has caused an unintended or inequitable result for the individual or entity concerned;
§ the application of Commonwealth legislation has produced a result that is unintended, anomalous, inequitable or otherwise unacceptable in a particular case (including in cases where the agency has acted correctly in administering the legislation involved); or
§ the matter is not covered by legislation or specific policy, but it is intended to introduce such legislation or policy, and it is considered desirable in a particular case to apply the benefits of the relevant provisions prospectively.
22. The act of grace power is used generally as a last resort, where there is no other remedy that could be used to effectively compensate a person for a loss he or she has suffered (or would suffer were an act of grace payment not approved).
23. As a general rule, claims will not be examined in the act of grace context until a clamant has exhausted all other means available to him or her…”
61. The Tribunal emphasises that it has no power whatsoever to order that an Act of Grace Payment be made to the applicant. The process for such a payment is for the applicant firstly to consider whether any of the eligibility criteria may be satisfied to justify making a claim for an Act of Grace payment. The next step would be for the applicant to make a claim, to the Department, for an Act of Grace payment and to request that the claim be assessed under the specified eligibility criteria that the applicant believes applies to his situation. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.
62. The decision under review is affirmed.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Fiona Kamst
Legal Research Officer
Dates of Hearing 30, 31 October 2006
Date of Decision 27 March 2007
For the Applicant Ms B Carter-Nicoll of CounselFor the Respondent Mr B Dubé, Solicitor, Instructed by Sparke Helmore
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