Repatriation Commission v Trevor Vernon Smith
[1997] FCA 525
•16 June 1997
CATCHWORDS
ADMINISTRATIVE LAW - Administrative Appeals Tribunal - Member of defence force claims injury suffered within eligible service - Board determines that if member establishes that injury caused by accident, not excluded from compensation on ground that accident did not occur within eligible service - Whether a "decision" susceptible of review - Failure of Tribunal to deal with submissions - Whether error of law.
VETERANS' ENTITLEMENTS - Defence caused injury - Member of defence force injured in motor accident after ceasing work - Injury sustained while travelling from place of duty to home via indirect route - Substantial interruption in journey - Compensation not payable where route travelled indirect unless risk of injury not thereby substantially increased - Compensation not payable where accident occurred on part of journey after substantial interruption unless risk of injury not thereby substantially increased - Whether risk not substantially increased by indirect route and substantial interruption - Part of journey - Whether part commencing after interruption and ending at scene of accident or part commencing after interruption and ending at intended destination.
Administrative Appeals Tribunal Act 1975, s44(1)
Veterans' Entitlements Act 1986, s70(5), (8).
Director-General of Social Services v Chaney (1980) 47 FLR 80
Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Kalwy v Secretary, Department of Social Security [No 2] (1993) 32 ALD 451
Adcock v The Commonwealth (1960) 103 CLR 194
Fillipone v Abel Drainers Pty Ltd (1969) 14 FLR 456
REPATRIATION COMMISSION v TREVOR VERNON SMITH VG 449 of 1996
COURT:Sundberg J
PLACE:Melbourne
DATE:16 June 1997
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 449 of 1996
GENERAL DIVISION )
BETWEEN:REPATRIATION COMMISSION
Applicant
AND:TREVOR VERNON SMITH
Respondent
COURT:Sundberg J
DATE:16 June 1997
PLACE:Melbourne
MINUTES OF ORDER
The Court orders that:
The appeal be allowed.
The decision of the Administrative Appeals Tribunal be set aside and in lieu thereof it be ordered that the matter be remitted to the Tribunal for hearing and determination in accordance with the Court's reasons for judgment.
The respondent pay the applicant's taxed costs of the appeal.
The respondent be granted a costs certificate under s6 of the Federal Proceedings (Costs) Act 1981 in respect of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 449 of 1996
GENERAL DIVISION )
BETWEEN:REPATRIATION COMMISSION
Applicant
AND:TREVOR VERNON SMITH
Respondent
COURT:Sundberg J
DATE:16 June 1997
PLACE:Melbourne
REASONS FOR JUDGMENT
SUNDBERG J:
Background
On 7 December 1978 the applicant, then a member of the regular army stationed at the Watsonia barracks in Melbourne, was injured in a motor vehicle accident. In 1994 he applied for a disability pension claiming that the coronary artery disease and cervical spondylosis from which he suffered were defence-caused within the meaning of s70 of the Veterans' Entitlements Act 1986. According to the applicant his cervical spondylosis resulted directly from the accident. The coronary artery disease, which manifested as a heart attack in 1982, was brought about by the stress suffered by the applicant as a result of having to abandon his career in the army because of continued ill health resulting from the accident. The Repatriation Commission refused the claim. The Veterans' Review
Board affirmed that decision. The Administrative Appeals Tribunal set aside the Board's decision and remitted the application to the Commission for reconsideration in accordance with its reasons for decision.
Evidence before Tribunal
The respondent usually ceased work at the barracks at about 5:00 pm, and drove to his home in Preston, a journey which took about 20 minutes. On 6 December 1978 he stopped work at 5:00 pm and travelled to his mother in law's house in Chadstone as a passenger in a car driven by a colleague. Chadstone is about an hour's drive from the barracks. The journey to Chadstone came about because the respondent's wife was a member of an archery team which trained every second evening at Frankston. On these occasions the wife drove the family's only car, dropped the children at her mother's house in Chadstone, and proceeded to Frankston. After training she returned to her mother's place. After work the respondent would travel to the Chadstone house to have a meal with his wife, mother in law and children.
The respondent, the driver and another colleague arrived at the Chadstone house at about 6 pm. It was daylight throughout the journey. They left the house at about 11:45 pm. The respondent intended to return to the family home. The colleagues lived not far from Preston. The wife and children stayed at the Chadstone house. The accident occurred about half an hour after the parties left Chadstone when another vehicle travelled through a red light. The respondent suffered head injuries. At the time of the collision there were street lights operating, and the road surface was dry.
William Keramidas, a collision reconstruction aetiologist, gave evidence about the relative risks to the respondent of travelling by car from the barracks to Preston (Journey A) and travelling by car from the barracks to Chadstone (Journey B). Mr Keramidas was an acting sergeant with the Victoria Police and a member of a consultancy which dealt with motor vehicle collision reconstruction. He gave evidence that Journey A involved travelling for 7 kilometres and passing through 12 major intersections, while Journey B involved a round trip of 44.6 kilometres and passing through 66 major intersections. There was thus a 6 to 6.5 to 1 ratio of higher risk on Journey B than on Journey A.
Mr Keramidas said that while during peak hour (including the period from 5:00 to 6:00 pm) there is a greater volume of traffic on the roads and a greater likelihood of collisions than at non-peak times, later evening collisions usually occur because people drive at higher speeds than they do at earlier times since there is then less traffic. Those collisions which do occur are therefore likely to be more serious. Mr Keramidas said that when the combined effect of collision statistics, traffic volumes, road development, abutting roadways and general road characteristics are taken into account, Journey B involved a more significant risk of injury than Journey A.
The statistics relied on by Mr Keramidas were for a 5 year period from 1983. There were no statistics available prior to that year. In that period there were 513 reported collisions upon the roads that would have been travelled by the applicant on Journey B between 5:00 pm and midnight, 165 of which were "serious" and 348 not serious. For the same period and between the same hours there were 71 reported collisions on the roads that would have been used by the applicant in Journey A: 18 serious and 53 not serious. Mr
Keramidas said that these statistics showed there was over 7 times greater risk of collision, 9 times greater risk of serious injury, and 6.5 times greater risk of non-serious injury on Journey B than on Journey A. With respect to the period between 11:00 pm and midnight he said there had been 23 accidents in the 5 year period on the roads that would have been used on Journey B, amounting to an average of 5 collisions a year. He did not have figures on the number of collisions on each journey between 5:00 pm and 6:00 pm, but he accepted that it was likely that there would be a greater risk of injury in that interval than at around midnight. He did not believe that the fact that a daylight journey had become a night time journey would significantly alter the risk of injury. He said that a person is more likely in daylight to be involved in a collision between 5:00 pm and 6:00 pm on Journey B than between midnight and 1:00 am on the same journey.
The roads Mr Keramidas used for Journey B, on which he had based his opinion, differed from those actually travelled by the applicant. However, Mr Keramidas said there was little variation in the propensity for collisions to occur between the two routes. He also agreed that he had not been asked to report specifically on the risk of injury on the very date of the accident.
The legislation
Section 70(1) of the Act provides that where a member of the forces has become incapacitated as a result of a defence-caused injury the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the member. Sub-section (5) provides in part as follows:
For the purposes of this Act ... an injury suffered by [a member of the Forces] shall be taken to be a defence-caused injury ... if:
...
(b)subject to sub-section (8), the ... injury ... resulted from an accident that occurred while the member was travelling, during any defence service ... of the member but otherwise than in the course of duty, or a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty ....
Sub-section (8) provides in part that sub-s(5)(b) does not apply
(b)to an accident that occurred while the member ... was travelling on a journey, or part of a journey, by a route that was not reasonably direct having regard to the means of transport used unless:
...
(ii)in the circumstances of the particular case, the nature of the risk of sustaining injury ... was not substantially changed, and the extent of that risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c)to an accident that occurred while the member ... was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the member's duties, unless, in the circumstances of the particular case, the nature of the risk referred to in sub-paragraph (b)(ii) was not substantially changed and the extent of that risk was not substantially increased, by reason of the interruption.
Tribunal's reasoning
The Tribunal accepted the evidence given by the applicant, the other occupants of the car and an independent witness as to the circumstances of the accident (see Evidence before
Tribunal), and found that the journey away from the barracks was not "reasonably direct" for the purposes of s70(8)(b). It identified the three issues that fell for decision as
(a)for the purposes of s70(8)(b)(ii) - whether the nature of the risk of sustaining injury was substantially changed and the extent of that risk substantially increased by reason of the journey to Chadstone, or
(b)for the purposes of s70(8)(c) - whether there was a substantial interruption of the journey, and if there was, whether it was made for a reason unconnected with the performance of the applicant's duties, and if so
(c)whether the nature of the risk was substantially changed and the extent of that risk was substantially increased by reason of the interruption whilst the applicant was travelling on a part of a journey made after the substantial interruption.
On the basis of Mr Keramidas' evidence (including his written report) the Tribunal said that Journey A involved an average of 0.58 intersections per kilometre travelled whereas Journey B involved an average of 0.67 intersections per kilometre travelled. The number of intersections per kilometre travelled was thus "insignificantly different between both journeys". The Tribunal also noted that on Journey A, in the statistical period, there was an average of 10.1 collisions per kilometre while on Journey B the average was 11.5. In the Tribunal's opinion the difference was not "substantial".
The Tribunal also noted that there was no evidence that the applicant or his driver had consumed alcohol and no evidence of any erratic or negligent driving by the driver, and concluded that the "nature of the risk" was not substantially changed from that to which the applicant would have been exposed on the direct route to his home. Nor was the "extent of the risk" substantially increased.
The Tribunal then turned to s70(8)(c), and said that this provision required the Chadstone journey to be considered in part only, because the interruption at the mother in law's house was a "substantial interruption" which was made for a reason unconnected with the performance of the applicant's duties. The relevant part of the journey was the part that occurred after the applicant left the mother in law's house. The question was whether there was any substantial change or increase in the nature and extent of the risk which resulted from the interruption of the journey. The Tribunal concluded that the relevant part of the journey did not expose the applicant to a substantial change in the nature of the risk or a substantial increase in the extent of the risk. The road was sealed and adequately lit, the conditions were dry, the weather was fine, visibility was good, the applicant's car was travelling slowly, and there was no evidence of alcohol consumption or erratic driving on the part of the applicant's driver. Although the "interruption" had converted a day journey into a night journey, the risk was not thereby altered. The number of vehicles on the road at 12:15 am would have been considerably less than earlier in the day.
The Tribunal noted that while it was unable on the material before it to find that the applicant had become incapacitated from a defence-caused injury, he was not excluded from benefit by s70.
Did the Tribunal make a decision?
The Tribunal did not decide that the respondent had suffered a defence-caused injury. All it decided was that if he established that he had suffered a neck injury due to the accident, he would not be excluded from compensation on the ground that the accident did not occur within eligible service. On this basis the respondent contended that the Tribunal had only decided a preliminary issue in his favour, and that there was no decision of the Tribunal that was capable of review under s44(1) of the Administrative Appeals Tribunal Act 1975. Subject to certain exceptions, an appeal under s44(1) lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review: Director-General of Social Services v Chaney (1980) 47 FLR 80 at 103 per Deane J. By his application to the Tribunal the respondent sought a review of the Veterans' Review Board's decision that his disabilities were not defence-caused. The Tribunal set aside the Board's decision and remitted the application to the appellant "for assessment of pension in accordance with these reasons". That is not an accurate description of the task to be performed by the appellant, but nothing turns on that. What is important is that s43 of the Act describes the decisions the Tribunal may make after hearing an application. One of them is to set aside the decision under review. That is what the Tribunal did. That effectively determined the application for review. It may not have effectively determined the respondent's application for a pension. But that is not the question, and the fact that the Tribunal did not determine this matter does not mean that it did not make a "decision".
One of the exceptions to the requirement that there be an effective decision or determination of the application for review is where the proceeding before the Tribunal
can be divided into two or more separate parts in respect of which independent decisions may properly be given: Chaney at 103. I do not consider that exception applies to the present case. The exception deals with the case where the Tribunal has determined some distinct issue without completing its overall task. In the present case the Tribunal's order put the matter back in the hands of the Commission. The Tribunal had completed its task.
For the reason I have given the Tribunal's order was a "decision" for the purposes of s44(1) and the application is competent.
Grounds of review
Onus
The applicant's first contention was that the Tribunal wrongly placed an onus on the applicant to show that the case did not fall within s70(8)(b)(ii). Section 120(6) provides that nothing in the Act imposes on an applicant or other person an onus of proving any matter relevant to the determination of the application.
Section 70(8)(b)(ii) defines the circumstances in which an indirect journey may be treated as a journey away from work within sub-s(5)(b). The way sub-s(8)(b)(ii) is constructed means that a member of the forces cannot invoke sub-s(5)(b) in respect of an indirect journey unless that journey does not have each of the characteristics referred to in sub-s(8)(b)(ii). Thus, once the Tribunal decided that the respondent's journey followed a route that was not reasonably direct, sub-s(8)(b) would operate to prevent him relying on sub-s(5)(b) unless the Tribunal was satisfied that taking the indirect route did not have each of those characteristics.
Having said that although the average number of collisions per kilometre travelled on the journey via Chadstone exceeded the average number of collisions per kilometre on the direct journey to Preston by 1.4, this did not amount to a substantial increase, the Tribunal continued:
Add to the above the absence of any evidence of alcohol being consumed by the applicant or his driver and the absence also of any evidence of erratic or negligent driving on the part of his driver, the "nature of the risk" would not in my opinion have been substantially changed from the nature of the risk to which the applicant would have been exposed on the direct route to Preston. Even if the "extent of that risk" was substantially increased - and for the above reasons I do not believe the extent of the risk was substantially increased - the respondent would need to demonstrate that the nature of the risk was substantially changed AND extent of risk was substantially increased to exclude the applicant from the provisions of s70. I do not believe on the evidence that the respondent has been able to demonstrate a substantial change in the nature of the risk and a substantial increase on the extent of the risk by reason of the journey via Chadstone.
The applicant relied on the passages I have emphasised. They do show that the Tribunal considered the applicant had the onus of showing that the case did not fall within s70(8)(b)(ii). Clearly it did not. But this error did not affect the Tribunal's decision. Before making the questionable remarks, it said it was satisfied that neither the nature of the risk nor the extent of the risk was substantially changed by the taking of the indirect route. This ground of challenge fails.
Tribunal's use of Keramidas evidence
Although Mr Keramidas' evidence was challenged both on the ground that the route of his Journey B was not the same as that travelled by the respondent and on the ground that his statistics were post 1983 statistics, the Tribunal accepted and purported to act on his evidence as data which showed the extent of the relative risks. It accepted that the route via Chadstone covered more kilometres (44.5) and crossed more intersections (66) than the direct route (7 kilometres and 12 intersections), and acknowledged that the number of intersections was significantly related to the risk of injury. The Tribunal also accepted that in the first 5 year period for which figures were available there had been 513 collisions on the indirect route compared with 71 on the direct route.
The following passage from its reasons shows how the Tribunal used this evidence:
On closer analysis however the journey to Preston directly shows an average of 0.58 intersections per kilometre travelled (7 kms ¸ 12 intersections) whereas the journey from Watsonia to Preston via Chadstone shows an average of 0.67 intersections per kilometre travelled (44.6 kms ¸ 66 intersections) ... On these figures the number of intersections per kilometre travelled was insignificantly different between both journeys.
Additionally ... upon the direct route to Preston, an average of 10.1 collisions per kilometre, (71 collisions ¸ 7 kms) were averaged in the 5 years from 1983. On the journey to Preston via Chadstone 11.5 accidents per kilometre (513 collisions ¸ 44.6 kms) were averaged in the 5 years after 1983.
...
Although the average number of collisions per kilometre travelled upon the journey via Chadstone exceeds the average number of collisions per kilometre upon journey to Preston directly by 1.4, this does not amount to a substantial increase.
Although a matter of no great significance, the Tribunal's arithmetic was defective in determining the average number of intersections per kilometre. To discover that number one divides the intersections by the kilometres and not the kilometres by the intersections. The averages are in fact 1.7 intersections per kilometre for the Watsonia-Preston journey and 1.47 intersections per kilometre for the Watsonia-Chadstone-Preston journey. It is likely therefore that the Tribunal would still have described the difference between them as insignificant.
What is however significant about the use of Mr Keramidas' statistical evidence is that the Tribunal compared the average risk per kilometre of each journey with no regard for the distances involved in each. The question posed by s70(8)(b)(ii) is whether the nature and extent of the risk of sustaining injury was (not) substantially changed or increased by reason of the fact that the journey was made by an indirect rather than a direct route. It requires a comparison of the two journeys. One journey was 7 kilometres long and crossed 12 intersections on which, in the statistical period, there had been 51 collisions. The other was 44.5 kilometres long and crossed 66 intersections on which, in the statistical period, there had been 513 collisions. They were the journeys to be compared. But instead of comparing them, the Tribunal simply compared the average risk per kilometre. Consequently the Tribunal ignored that fact that the journey actually undertaken was over six times longer than the direct route. It thus directed itself to a task other than that required by s70(8)(b)(ii), and as a result made an error of law.
Section 70(8)(c) - "a part of the journey"
Since the Tribunal found that the interruption of the respondent's journey at Chadstone was substantial and for a reason unconnected with the performance of his duties, s70(5)(b) could not apply to the accident unless the Tribunal was satisfied that the nature of the risk of injury was not substantially changed and the extent of that risk was not substantially increased by reason of the interruption.
The Tribunal considered that the part of the journey made after the substantial interruption was the journey from Chadstone to the scene of the accident, and was satisfied it did not expose the respondent to a substantial change in the nature of the risk or a substantial increase in the extent of the risk. In my view the Tribunal erred in treating the "part of the journey" as that part commencing after the interruption and ending at the scene of the accident.
The question posed by par(c) is whether by reason of the interruption the nature of the risk of injury on the part of the journey remaining after the interruption was substantially changed and the extent of that risk was substantially increased. The paragraph seems to me to require the matter to be tested at the conclusion of the interruption and before the resumption of the journey. Thus, where an interruption resulted in most of a long uncompleted journey being made at night on a winding and badly lit road (instead of in daylight), the question is whether the interruption brought about a substantial change in the extent of the risk of injury or a substantial increase in the extent of the risk on the balance of the journey yet to be made. It is no answer to say that there was no change or increase in the risk because the accident happened a few minutes after the conclusion of
the interruption when the vehicle was still in a well lit suburban street. The words "on a part of a journey made after a substantial interruption of the journey" do not require the risk to be assessed in relation to the phase of the journey made after the interruption and before the accident, that is as excluding, in the present case, the never completed part of the journey because it had not been "made". They are directed to the time at which the accident occurred.
In concentrating on the uncompleted journey the Tribunal failed to ask itself the question posed by s70(8)(c), and thereby made an error of law.
Reasons
(a)night travel
Before the Tribunal the applicant submitted that the interruption caused the balance of the journey to be made late at night, when, according to Mr Keramidas, more serious collisions are likely to occur because reduced traffic causes drivers to travel at higher speeds. The Tribunal recited the relevant part of Mr Keramidas' evidence. It considered whether the nature of the risk had been affected by weather conditions, lighting and the conduct of the driver. It noted that the number of vehicles on the road at the time the accident occurred (12:15 am) would have been considerably smaller than earlier in the day or earlier in the evening "thereby not supporting the respondent's contention that the nature and extent of risk was substantially changed or increased". But it did not deal with the submission that those reduced traffic volumes increased the risk of serious accidents and thus of serious injury.
Failure by the Tribunal to deal with a submission put to it may amount to an error of law, either because it constitutes a failure to comply with s43(2) or because it brings about a miscarriage of justice by disabling this Court from deciding whether the Tribunal's decision was vitiated by an error of law. See Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276-277; Kalwy v Secretary, Department of Social Security [No 2] (1993) 32 ALD 451 at 458-461. In the present case the omission did, I think, amount to an error of law. The submission was clearly put. It was firmly based on evidence the Tribunal accepted. It was evidence which was supported by the very circumstances of the accident in question. It was a submission seriously advanced by the applicant. It was not devoid of merit. And it was capable at least of neutralising the use the Tribunal made, adversely to the applicant, of the fact that the accident occurred at night.
(b)"journey away from a place"
The Tribunal recorded a submission by the applicant, directed to the words of s70(5)(b) - "a journey ... away from a place upon having ceased to perform duty" - that the respondent's journey ended when he arrived at Chadstone. But nowhere did the Tribunal deal with the submission by explaining why it was unsound.
Again I consider this failure constituted an error of law. The evidence before the Tribunal squarely raised the question. If the journey had ceased at Chadstone, the accident would not fall within s70(5)(b) regardless of the operation of s70(8). The submission was seriously put. It was supported by reference to Adcock v The Commonwealth (1960) 103
CLR 194 and Fillipone v Abel Drainers Pty Ltd (1969) 14 FLR 456, and was not devoid of merit.
Relief
The applicant urged me to set aside the Tribunal's decision and in lieu thereof affirm the applicant's decision. It was submitted that had the Tribunal used the data provided by Mr Keramidas to undertake the comparison required by s70(8)(b)(ii), it would have had to have concluded that the respondent's journey from the barracks to his home via Chadstone resulted in a substantial increase in the risk of injury compared with the risk by the direct route. It was accepted that, had the other errors alone been made, the appropriate order would be to remit the matter to the Tribunal for hearing and determination in accordance with the Court's reasons for judgment. I think that is the appropriate order notwithstanding what I will call the Keramidas error. I do not accept that it is correct to say the Tribunal would have had to have concluded that the indirect route resulted in a substantial increase in the risk of injury compared with the direct route, though I agree that a respectable argument could be advanced in support of that view.
The appeal should be allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal for hearing and determination in accordance with these reasons.
I certify that this and the preceding sixteen pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg
........ ........ ........ ........ ........ ........ ........ ........ ..
Associate
16 June 1997
Counsel for the Applicant: P J Hanks
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: M J Croyle
Solicitors for the Respondent: William Winter Higgs
Date of Hearing: 3 June 1997
Place of Hearing: Melbourne
Date of Judgment: 16 June 1997
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