Roncevich and Repatriation Commission - [2001] AATA 199

DECISION AND REASONS FOR DECISION [2001] AATA 199

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D1999/14

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

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date16 March 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  .      (Sgd) K L Beddoe
  Senior Member

Decision No: 199/2001

CATCHWORDS : Veterans' Affairs - Disability Pension – Whether conditions of lumbar spondylosis and internal derangement of the left knee were defence caused – Whether injuries arose out of or were attributable to defence service – Whether but for defence service the injuries would not have been suffered – Whether excessive consumption of alcohol at mess function attributable to defence service
Veterans' Entitlements Act 1986 s 70(2), (5)(a), (5)(c), (7), (9) subs 120(4), 120B, 196B, (13), (14)
Statement of Principles Instrument 166 of 1996, Instrument 60 of 1997
Walmar v Travelodge Australia Ltd, (1975) 26 FLR 249
Maunder v Commonwealth of Australia, (1983) 51 ALR 44
Hatzimanolis v ANI Corporation (1992) 106 ALR 611
Danvars v Commissioner for Railways (1969) 122 CLR 529
MacPherson v Department of Defence(1998) AATA 455

REASONS FOR DECISION

16 March 2001 Mr K L Beddoe (Senior Member)

A delegate of the Repatriation Commission refused a claim for acceptance of various conditions including lumbar spondylosis and internal derangement of the left knee as being defence caused. A Veterans' Review Board subsequently affirmed the Commission's decision.
Section 70 of the Veterans' Entitlements Act 1986 ("the Act") sets out the criteria for eligibility for payment of a disability pension in respect of members of the Defence Force who rendered defence service as defined.
Sub-section 70(5) relevantly provides that an injury suffered by a member shall be taken to be a defence-caused injury if it arose out of or was attributable to any defence service of the member.
An injury may be deemed to be a defence caused injury (S 70(5)(c)) where, in the opinion of the Commission the incapacity of the member was due to an accident that would not have occurred but for the member having rendered defence service, or but for changes in the member's environment consequent upon the member having rendered such service. If the incapacity was due to an accident that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member (S 70(7)).
However sub-section 70(9) operates to deny the Commonwealth's liability if the injury resulted from the member's serious default or wilful act (S 70(9)(a)(I)), or arose out of a serious breach of discipline committed by the member (S 70(9)(a)(ii)).
Sub-section 120(4) of the Act requires the Tribunal to decide the matter to its reasonable satisfaction. That sub-section is subject to sections 120B and 196B(14) of the Act so that reasonable satisfaction is to be determined by reference to a relevant Statement of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Roncevich and Repatriation Commission

Details

AGLC: Roncevich and Repatriation Commission [2001] AATA 199
Case: [2001] AATA 199
Decision Date: 16 March 2001

CaseChat Overview and Summary

The matter of Roncevich and Repatriation Commission was before the court, involving the applicant's claim for a pension under the Defence Act, which he argued was due to injuries sustained while on defence service. The applicant contended that the injuries, which included a chronic anterior cruciate ligament tear in his left knee and a degenerative condition in his L5/S1 intervertebral disc, were a result of falling from a window during his service. The Commission, however, disputed the applicant's claims, asserting that his injuries were not attributable to his defence service.

The primary legal issues before the court were whether the applicant's injuries arose out of or were attributable to his defence service, and whether they were deemed to be defence-caused injuries under the provisions of the Defence Act. Specifically, the court had to determine if the injuries resulted from the applicant's defence service, as required by subsection 70(5)(a) of the Act, or if they should be considered defence-caused under subsection 70(7) as not having occurred but for the applicant's defence service.

The court examined the evidence provided, including medical reports and statements from RSM Colin Nelson, to assess the applicant's claims. The Tribunal noted that the applicant's attendance at the Mess function was compulsory, but his consumption of alcohol was not a breach of discipline as he was not on duty. The medical evidence indicated a likely connection between the 1986 incident and the chronic anterior cruciate ligament tear in the applicant's left knee, but no such link was found for the L5/S1 intervertebral disc condition. The court concluded that the applicant was not on duty at the time of the accident, and thus, the injuries did not arise out of or were not attributable to his defence service. Therefore, the injuries did not qualify as defence-caused under the relevant provisions of the Act.

In light of the evidence and the interpretation of the relevant sections of the Defence Act, the Tribunal found that the applicant's injuries were not defence-caused. Consequently, the applicant's claim for a pension under the Act was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In evidence of RSM Colin Nelson satisfied me that the applicant's attendance at the Mess function was effectively compulsory except when excused by the RSM. He also satisfied me that the consumption of alcohol at such a function was not a breach of discipline because, he said, the participants were not on duty.The Medical Evidence Document T15 includes a report of a referral by Dr Kennedy, Orthopaedic Surgeon, dated 3 March 1999 and addressed to the applicant's general practitioner. In relation to the left knee Dr Kennedy found a likely connection between the diagnosed condition of chronic anterior cruciate ligament tear and a degenerative tear of the medial meniscus with degenerative change with the 1986 incident. Dr Kennedy found no such link in relation to a severely degenerative L5/S1 invertebral disc with L5 spondylosis. Exhibit A is a medico-legal report by Dr Millons, Surgeon, dated 14 June 2000 and addressed to the applicant's solicitor. Dr Millons did not find evidence of trauma to the back. He considered the fall from the window in 1986 but opined that this dramatic event did not appear to have particularly caused any major pathological damage to the back. On the other hand he says there was clearly an injury to the applicant's left knee when he fell out of the window. He said that the applicant had gone on to develop degenerative changes to the knee as found by Dr Kennedy in 1994. He also opined that there was a causative link between the incident in 1986 when the applicant fell from the window and the current condition.Consideration The applicant relies on the operation of sub-section 70(5) of the Act and in particular paragraph (a). He submits that the incident of falling out of the window resulted in injuries which either arose out of or were attributable to the applicant's defence service. In the alternative the applicant says that paragraph 70(5)(c) of the Act operates because the injuries are deemed by sub-section 70(7) to be injuries that would not have occurred but for the applicant rendering defence service. The applicant says that paragraph 70(5)(a) is to be construed in the same way as similar provisions in the workers' compensation legislation and for that submission he relies on a decision of a Workers' Compensation Appeals Tribunal of South Australia in re Butson. In that case the employer had provided a free barbecue and drinks during normal working hours. By the time the worker in question left the hotel where the employer's function had been held "he was quite drunk". He eventually left the scene by driving his car but was soon after involved in a motor vehicle accident. Hence the claim for compensation. Relying on the decision in Walmar v Travelodge Australia Ltd, (1975) 26 FLR 249, the Tribunal fairly concluded that the worker's paid attendance at the function was part of his job (ie in the course of his employment). In doing so the Tribunal distinguished the decision in Maunder v Commonwealth of Australia, (1983) 51 ALR 44 on the grounds that the Tribunal was unable to find when the employer's function had ended, unlike the finding by this Tribunal (AAT) in Maunder that the official function there had ended some hours before Captain Maunder left the Sergeants' Mess.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Further the applicant was not on duty at the time of the accident so that there was no relationship between the injuries caused by the fall from the window and the applicant's defence service.Consideration On the basis of the applicant's own evidence and the evidence of RSM Lee, I must be satisfied that the applicant was not on duty at the time he fell from the window. The applicant said he had retired to his own room in the Sergeant's Mess, had undressed and was in the course of doing his own domestic duties (preparation of uniform for the next day) when the accident occurred. Part IV of the Act provides for pensions for, inter alia, members of the Defence Force. For present purposes a member of the Defence Force who has rendered full time continuous service on or after 7 December 1972 and before the terminating date (7 April 1994). Eligibility for pension is determined by section 70 of the Act. Liability will arise, in particular where a member of the Defence Force becomes incapacitated from a defence-caused injury (s 70(1)). So far as is relevant sub-section 70(5)(a) provides that an injury suffered by a member of the Defence Force shall be taken to be a defence-caused injury if the injury arose out of, or was attributable to, any defence service of the member. At first glance this provision may be thought to be similar in effect as workers' compensation provisions which apply to injuries etc which arise out of or in the course of employment. "In the course of employment" was explained by the High Court in Hatzimanolis v ANI Corporation (1992) 106 ALR 611, in terms which suggest that attributable to defence service may have an even wider meaning than "in the course of employment". In Danvars v Commissioner for Railways(1969) 122 CLR 529, a railway worker died while sleeping in a site van provided by his employer. The High Court found that was sufficient for the authority to make a finding that the deceased died in the course of his employment. In MacPerson v Department of Defence (1998) AATA 455, a case involving a claim for Commonwealth employees' compensation, the Tribunal found that an injury had occurred when the applicant, a trainee Air Force fitter required to live on base, fell from his dormitory window during the night. The Tribunal found that the applicant was required to sleep in the dormitory and was subject to Air Force discipline at all times. I interpret "at all times" to mean at all times he was on the base and at times he was otherwise subject to Air Force discipline. It is apparent from the reasons for decision that the Tribunal was satisfied that the injury arose in the course of the applicant's employment. Section 120(4) of the Act requires the Tribunal to decide this matter to its reasonable satisfaction. That sub-section is subject to section 120B which requires, on the facts of this case, that reasonable satisfaction is to be assessed by reference to relevant, if any, statements of principles. In particular section 120B(3) applies to require the Tribunal to be reasonably satisfied that an injury suffered by the applicant was defence caused only if: