Roberts and Military Rehabilitation and Compensation Commission

[2005] AATA 1162

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1162

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  A2004/234

VETERANS’  APPEALS  DIVISION		)
Re		MICHELLE ROBERTS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal   JW Constance, Senior Member

Date  23 November 2005

Place  Canberra

Decision

  1.     The assault suffered by the applicant on 14 May 2000 was an injury which arose out of her employment by the Royal Australian Air Force.

  2.     The parties are invited to submit to the Tribunal a draft decision in accordance with this finding within 14 days of the date of this finding.

..............................................

Senior Member  

CATCHWORDS

COMPENSATION – service personnel – off duty -- living on Base—injury occurred on Base – injury arising out of employment

Defence Act 1903 (Cth)

Defence Force Discipline Act 1982 (Cth) – s 9A

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, 6 and 14

Veterans’ Entitlements Act 1986 (Cth) -- 70

Comcare v Mather and Another (1995) 37 ALD 463. 

Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473

Roncevich v Repatriation Commission  [2005] HCA 40

REASONS FOR DECISION

INTRODUCTION

1.      In 2000 Ms Roberts was a member of the Defence Forces.  She was injured  in an assault that took place in her accommodation at the Royal Australian Air Force Base at Fairbairn, Canberra.  At the time she was off duty.

2.      The only issue which requires determination is whether the injury arose from Ms Roberts’s employment.  I have decided that it did.

FACTS

3.      There was no evidence given in this matter as the parties agreed on a statement of facts which was filed with the Tribunal.  In the following paragraphs I set out the relevant facts from the agreed statement.  I am satisfied that the agreement as to facts was appropriate.

4.      In 2000 Ms Roberts was a member of the RAAF working at a Defence establishment in Canberra (separate from the Fairbairn RAAF Base).

5.      On 14 May 2000 Ms Roberts was rostered “off duty”.  At approximately 2.30am on that day she was assaulted by a male member of the RAAF and as a result she suffered from a psychiatric condition.  It is proper on the material before me[1] that there be a finding that the assault took place although it should be noted that the male member was charged with offences under the Defence Force Discipline Act 1982 (Cth) and was found not guilty of all charges.

[1] Documents filed pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.

6.      The assault took place in Ms Roberts’s room on the Base.  Her assailant also lived on the Base.

7.      Ms Roberts lived on the Base under the “Living In Policy” [2] issued pursuant to section 9A of the Defence Act 1903 (Cth). At the time of the assault she was not required to live in but had been granted permission to do so. This arrangement was to the financial advantage of Ms Roberts.

[2] Ex. A2.

THE ISSUE

8.      The parties have agreed that the sole issue for the Tribunal to decide is whether the assault was an injury “arising out of, or in the course of” Ms Roberts’s employment.  The Commission agreed that the assault was an injury other than a disease for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth),

STATUTORY BACKGROUND

9.      Section 4 of the Safety, Rehabilitation and Compensation Act 1988 relevantly defines “injury” 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….”.

10.     Subsection 6(1)(a) provides:

“6  Injury arising out of or in the course of employment

(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)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; …”

11.     Subsection 14 in part  provides:

“(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.”

THE LAW

12.     In Roncevich v Repatriation Commission [2005] HCA 40 the High Court considered the meaning of the words “arose out of” in the context of section 70 of the Veterans’ Entitlements Act 1986 (Cth). That section applies a test of whether an injury “arose out of” defence service and in the section the words are used in the same context as those in the Safety, Rehabilitation and Compensation Act 1988.

13.     Mr Roncevich was a member of the Defence Forces when he was injured as a result of falling from the window of his accommodation on an Army Base.  Immediately prior to his falling he had climbed on a box in order to spit out of his window.  He overbalanced because he was affected by alcohol consumed at an Army function held at the Base.  He had returned to his room to prepare his uniform for the next day.

14.     The majority of the High Court said:

“……whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties.  The connexion must however be a causal and not merely temporal one.

……

The remaining question is whether, climbing on to the box to expectorate through the open window, and then falling because he was inebriated, similarly either arose out of, or was attributable to his defence service

These further observations may be made about the Tribunal’s reasons which included a statement that “(t)he situation was in fact no different to what they might have done, had they decided to go to a hotel away from the Base.”  That what in fact happened occurred on the Base and interrupted the performance of a military duty, the preparation of the appellant’s uniform, were relevant matters.  It was also of relevance that the inebriation of the appellant occurred on the Base.  That is not to say however that a defence-caused injury inevitably could not have resulted if the events had occurred at an hotel rather than at the Base.   Nor is it irrelevant that at the time when the appellant hurt his knee it is almost certain that he would have been subject to military discipline

The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do a soldier.  A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.[3]

[3] Part paragraphs 23-27.

15.     The High Court specifically adopted a broad interpretation of the section and in so doing relied on other provisions of the section (subsection (9)) which excluded liability for injury arising out of the member’s serious default, wilful act, or a serious breach of discipline.  The need to specifically exclude such conduct suggested that the words “arose out of” and “was attributable to” were broad enough to otherwise include it.  The High Court concluded that :

“The presence and language of s70(9) argues strongly in favour of a construction of s70(5) capable of embracing within its terms the appellant’s conduct on the evening of the fall.” [4]

[4] Para. 25.

Section 14 of the Safety, Rehabilitation and Compensation Act 1988 makes the equivalent exemption of an injury which would otherwise fall within the definition of an injury which arose from employment.

16.     Applying these principles, I am satisfied on the balance of probabilities that Ms Roberts’s injury arose out of her employment.  The existence of the following facts is sufficient to make the injury and the employment causally connected:

·the injury occurred on the Base;

·at the time Ms Roberts was living on Base with the permission of her employer given pursuant to a policy issued by her employer;

·in living on Base Ms Roberts was taking advantage of a financial benefit of her employment offered by her employer; and

·the injury was occasioned by another employee living on the Base at the time.

17.     In reaching this finding I have relied upon the ordinary meaning of the words used in the definition of “injury” in section 4 of the Act.  Subsection 6(1) provides an extended definition of “arising out of“ employment but it is not necessary in this matter to rely on this provision.  However, should it have been necessary I would have been satisfied by reason of subsection 6(1)(a) that Ms Roberts’s injury did arise out of her employment.

18.     Counsel for Ms Roberts referred to me to decisions of  the High Court in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 and the Federal Court in Comcare v Mather and Another (1995) 37 ALD 463. These cases dealt with the issue of whether injuries which occurred during breaks between periods when the employees were carrying out normal duties arose in the course of employment.  In this case it is clear that Ms Roberts’s injury occurred in a period between 2 discrete episodes of work and could not be said to have arisen “in the course of“ her employment.

DECISION

19.     The assault suffered by Ms Roberts on 14 May 2000 was an injury which arose out of her employment by the Royal Australian Air Force.

20.     The parties are invited to submit to the Tribunal a draft decision in accordance with this finding within 14 days of the date of this decision.

21.     The parties have liberty to make an application in relation to costs should this be necessary.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member

Signed:       .....................................................................................
  Associate

Date of Hearing  10 November 2005
Date of Decision  23 November 2005
Counsel for the Applicant            Allan Anforth
Solicitor for the Applicant             David Lander
  Lander & Co
Counsel for the Respondent        Lorraine Walker
Solicitor for the Respondent        Scott Moloney
  Phillips Fox