Roncevich and Repatriation Commission

[2002] AATA 343

DECISION AND REASONS FOR DECISION [2002] AATA 343

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2001/54

VETERANS' APPEALS DIVISION          )          
           Re      JURE JACK RONCEVICH          
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr DW Muller, Senior Member    

Date14 May 2002 

PlaceBrisbane

Decision      The Tribunal: 1.       Sets aside the decision under review in so far as it related to the applicant's claim for medical treatment and pension for incapacity from lumbar spondylosis and, by consent, in substitution determines that the applicant's lumbar spondylosis is defence-caused within the meaning of that term in the Veterans' Entitlements Act 1986, with effect from 20 May 1997. 2.           Remits the matter of the applicant's defence-caused lumbar spondylosis to the respondent for assessment. 3.   Affirms the decision under review that the applicant's internal derangement of his left knee is not defence-caused.       
  (Sgd) D W Muller
  Senior Member
CATCHWORDS
VETERANS – injury arising out of intoxication at a sergeants mess during non-compulsory social occasion not defence-caused. 
Veterans' Entitlements Act 1986

REASONS FOR DECISION

14 May 2002    Mr DW Muller, Senior Member                

1. This is an application to review decisions to reject claims for medical treatment and incapacity for two conditions suffered by the applicant, Jure Jack Roncevich, namely lumbar spondylosis and internal derangement of the left knee.

2. At the outset it was conceded by Ms Ford of Counsel for the respondent, that the applicant's lumbar spondylosis is defence-caused within the meaning of that term in the Veterans' Entitlements Act 1986, with effect from 20 May 1997.

3. Mr Roncevich enlisted in the Australian Army as a seventeen year old in 1974.  He was eventually discharged from the Army in 1998.  In 1986 he was a sergeant and he was living in the sergeants quarters on the floor above the ground floor, on the base at Holdsworthy.

4. On the night of 27 February 1986, Mr Roncevich was ironing his Army clothes to be ready for the following day.  During the course of his ironing he felt an urge to spit.  He believes that his spitting habit was the result of his then smoking habit.  He walked across to an open window, climbed onto a trunk which was just below the window sill and bent forward to spit out the window.  He overbalanced, tripped on the window sill and fell out the window onto the ground below.  As a result of the fall, he injured his left knee.

5. Mr Roncevich claims that the main reason for his lack of balance and the consequent fall through the window, was the fact that he was inebriated at the time.  He had been drinking beer in the sergeants mess for about four hours before he returned to his room to do his ironing before going to bed.

6. The claim made on behalf of Mr Roncevich is that the knee injury is defence-caused because:

   (i)Mr Roncevich was on 24 hour call as a sergeant in the Army and therefore he was on duty when he fell through the window.

   (ii)Mr Roncevich was living on the Army Base when he fell through the window and that therefore there is a direct link between his injury and his defence service.

   (iii)Mr Roncevich had attended the sergeants mess for dinner and a few drinks with a visiting senior NCO.  He was under some moral obligation to attend the mess as a gesture of hospitality towards the visitors.

   (iv)The hospitality included the conviviality of eating and drinking beer together and sharing stories, jokes and "shop talk".

   (v)He would not have fallen through the window if he had not been drunk at the time.

1. The Tribunal heard evidence from Mr Colin Lee who was RSM at the time of the incident when Mr Roncevich fell through the window.  He said that:

   (i)Mr Lee was President of the Mess Committee at the time.

   (ii)There had been very little warning of the visit to the mess by a senior NCO.

   (iii)On such occasions when a visitor is to have dinner at the mess, it is common to try to get a few members of the mess to have dinner with the visitor, so that the visitor is not left stranded on their own.

   (iv)The occasion was not a "top dinner night".  It was not compulsory to attend.

   (v)The evening started after the working day at about 4.30pm and ended about 9.00pm.

   (vi)It was not compulsory to drink alcohol.

   (vii)It was not compulsory to stay until any specific time.  People could excuse themselves if they wished.

1. It was established during the course of the evidence that Mr Roncevich was not obliged to live on the Base.  He could have rented civilian quarters away from the Base if he had wished to do so.  If he had so rented premises away from the Base he could have returned to those premises at the end of his working period, which would have been after 4.30pm on the day in question.  He would not have been required to return to the Base until the following day, unless some emergency arose during the night which required his presence on the Base.

2. The Tribunal finds that on the evening of 27 February 1986, between 4.30pm and 9.00pm, the applicant attended the sergeants mess at the Holdsworthy Army Base to socialise with fellow NCOs.  They drank alcoholic beverages, ate a meal and had a friendly conversation.  The situation was in fact no different to what they might have done, had they decided to go to a hotel away from the Base.

3. The only links between the Army and the intoxication of Mr Roncevich were that the intoxication occurred on an Army Base and that Mr Roncevich and his fellow drinkers were soldiers.  The intoxication was not caused by, nor did it arise out of any task that Mr Roncevich had to do as a soldier, nor did it arise out of his defence service, nor did it occur in the course of his defence service.

4. Consequently, the subsequent injury to Mr Roncevich's knee was not caused by his defence service, not did it arise out or in the course of his defence-service.  It was not service-related nor was it defence-caused, within the meaning of those terms in the Veterans' Entitlements Act 1986.

5. The decision to reject the claim for derangement of the left knee is affirmed.

   I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr DW Muller, Senior Member

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

   Date/s of Hearing  24 April 2002 
   Date of Decision  14 May 2002
   For the Applicant  Mr Piper
   For the Respondent                 Ms Ford