Scambary and Military Rehabilitation and Compensation Commission (Compensation)
[2023] AATA 3567
•3 November 2023
Scambary and Military Rehabilitation and Compensation Commission (Compensation) [2023] AATA 3567 (3 November 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2022/6194
Re:Dean Scambary
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:3 November 2023
Place:Canberra
The decision under review is affirmed.
……………………………[sgd]…………………………
Senior Member O’Donovan
CATCHWORDS
VETERANS' AND MILITARY COMPENSATION - where the applicant was deployed - where the applicant suffered an injury while on shore leave - whether the applicant was rendering service - whether the injury occurred in the course of duty - decision affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004, s 6, 23, 27
Veterans' Entitlements Act 1986
CASES
Comcare v PVYW (2013) 250 CLR 246
Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525
Roncevich v Repatriation Commission (2005) 222 CLR 115Spriggins and Repatriation Commission [2007] AATA 1657
SECONDARY MATERIALS
Explanatory Memorandum to the Military Rehabilitation and Compensation Bill 2004
REASONS FOR DECISION
Senior Member O'Donovan
3 November 2023
The applicant served in the Royal Australian Navy (RAN) from 12 January 2004 to 22 October 2015. On 30 October 2010 he suffered a serious head injury while on shore leave. The incident occurred while his ship, HMAS Darwin, was docked in Newcastle. He is seeking compensation under the Military Rehabilitation and Compensation Act 2004 (MRC Act).
On 13 April 2022 the Veterans’ Review Board (VRB) determined that the applicant did not meet the statutory tests provided for in section 27 of the MRC Act and was not entitled to compensation. The applicant seeks review of that decision.
Facts
There is very little disagreement between the parties about the relevant facts. Set out below are my findings. To the extent that any of the findings are controversial I have identified the evidence on which those findings are based. Where I was urged to make a factual finding and did not, I have recorded my reasons for not doing so.
The applicant served in the RAN from 2004 and was voluntarily discharged in 2015. From 1 September 2008 the applicant was posted to HMAS Darwin and he remained posted to HMAS Darwin until 6 December 2010.
HMAS Darwin’s home port was Sydney. On 30 October 2010 HMAS Darwin was docked in Newcastle. That afternoon the applicant was permitted to leave the ship and pursue any activities of interest to him.
There is no dispute that this leave was consistent with the ADF Pay and Conditions Manual, which relevantly provides that:
(a)A member may be granted short periods of absence in particular circumstances.
(b)The grant of this kind of absence is at the discretion of the approver listed for the specific circumstances of the absence.
(c)Short absence is different from other kinds of leave for these reasons:
(i)It is for short, informal periods of time off duty.
(ii)It does not accrue for particular service and cannot be kept for later use.
(iii)It is for situations where other kinds of leave may not be available or appropriate.
While there is no formal documentation of the leave granted, I am satisfied that it was a form of leave known colloquially as shore leave. Shore leave is more formally referred to in the Australian Fleet General Orders as an open gangway where service personnel are free to leave the ship for specified periods if they have been granted permission to do so.
There is no dispute that the applicant was absent from his ship with the knowledge and permission of his superiors. The applicant in his evidence states:
There is an expectation that sailors will go ashore when able as a vital part of maintaining mental health. Shore leave is heavily promoted in Royal Australian Navy marketing and, from a commercial perspective, is enshrined under the Maritime Labour Convention 2006. Alcohol use was encouraged during my time in the Navy.
Having been granted leave, the applicant and a number of other sailors decided to go on a Hunter Valley winery tour. In the late afternoon the applicant was at Harrigan’s Irish Hotel in Pokolbin when an incident occurred.
The applicant provided a statement to NSW Police on 20 November 2010 in the following terms:
On Saturday 30th October 2010, six friends and I went on a wine tasting tour throughout the Hunter Valley area. During the day we attended a number of vineyards to sample wine. I don’t recall the exact number of places we attended, but I believe it was three to four. Over the course of the tour I consumed maybe 5 or so alcoholic beverages, including a couple of glasses of wine and a few beers.
Sometime in the late afternoon we arrived at Harrigans Hotel. The sun was still up and from what I recall, it was a lone, freestanding building in the middle of rural/agricultural land. It was a large building, with a big car park. We entered through the front of the building and made our way outside to an open air area, covered by a large pergola. We sat down and over the next half an hour or so, I consumed two schooners of beer.
I accept that statement as accurate.
There is conflicting evidence about whether the stop at Harrigan’s Hotel was the last stop on the tour before the group were to return to the ship. I am not satisfied that it was the last stop.[1] The applicant and his friends were involved in an incident at around 5.30pm in the Harrigan’s Hotel car park.
[1] The witness statement at T15 p99 at [4] casts doubt on the proposition
A colleague of the applicant picks up the narrative in his statement:
As we were about to leave I grabbed one of my mates, [redacted] and we walked outside. All of the others were already outside. [Redacted] was already at his van and he told me about one of our guys. I looked down and saw, [redacted] further down in the carpark having some sort of argument with another guy. I couldn’t make out what they were saying but I could hear there (sic) raised voices. Another mate that was with me, Dean SCAMBURY, was down there standing next to [redacted] but not doing anything.
I walked down to grab [redacted] and take him away. As I did that I saw a guy throw a punch that hit Dean straight in the jaw. I then saw Dean fall straight to the ground. I looked down at Dean when the same guy threw a punch at me. This punch just missed my face by less than an inch, I don’t know how, whether I moved as a reflex or not. The guy then threw more punches, but I didn’t see him connect with anyone else.
All the guys from the car ran down, where we put Dean in the recovery position. He looked pretty blue and had blood coming from his mouth.
The applicant has filed a statement dated 13 April 2023. He states:
I think it is likely we were singled out amongst other groups in the pub. As navy members we were expected to maintain a certain dress and grooming standard. We were all clean shaven with short haircuts. We were all reasonably dressed. I believe some of my ship mates spoke to the other group of people so it is likely that they told them we were visiting with the Navy.
I am not prepared to make a finding that the applicant was struck because he was a member of the RAN. There is no direct evidence about the motives of the aggressor and the evidence that the applicant provides is speculative.
The respondent accepts that the applicant suffered a traumatic brain injury, partial anosmia secondary to his traumatic brain injury, and a left occipital bone fracture.
After a claim lodged in 2011 was refused, a fresh claim was submitted on 22 June 2020 claiming compensation in respect of a ‘brain injury’ and ‘loss of taste/smell’. The claim was denied on 19 October 2021. That decision was affirmed by the Veterans’ Review Board on 13 April 2022.
Issues
The Commission must accept liability for an injury sustained if three thresholds specified in subsection 23(1) of the MRC Act are met. The respondent contends that the applicant’s claim falls at the first hurdle because the applicant’s injury is not a ‘service injury or disease’ under section 27.
Section 27 relevantly provides as follows:
For the purposes of this Act, an injury sustained, or a disease contracted by a person is a service injury…if one or more of the following apply:
(a)the injury…resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury…arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) …
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d)the injury….:
(i) was sustained…while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
(e)the injury…resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.
The term ‘defence service’ is defined in section 6 as follows:
defence service means warlike service, non-warlike service or peacetime service.
For service to count as warlike service or non-warlike service a written ministerial determination is required in relation to the service declaring it to be service of that kind. Peacetime service means any other service with the Defence Force.
There is no suggestion that the applicant was rendering warlike or non-warlike service. On that basis I am satisfied that if the applicant was rendering defence service at the relevant time it was ‘peacetime service’.
In his Statement of Facts, Issues and Contentions the applicant contends that he qualifies for compensation under one of the first three paragraphs of section 27. Each provides a slightly different basis for eligibility. At the hearing the applicant’s counsel conceded that the applicant did not qualify under paragraph 27(c) as the injury was not sustained due to an accident. Liability under paragraphs (a) or (b) was pressed.
Paragraph 27(a) requires a temporal connection between the occurrence which caused the injury and the rendering of defence service. Paragraph 27(b) requires a causal connection between the injury and any defence service rendered by the applicant. They are distinct heads of liability.
Paragraph 27(a)
The applicant’s injury will be a service injury if it resulted from an occurrence that happened while the person was a member rendering defence service. There is no doubt that the applicant’s skull fracture and related injuries resulted from the assault which he was subjected to at Harrigan’s Hotel. That is the occurrence that the injury resulted from.
The more difficult question is whether that occurrence happened while the applicant was ‘rendering defence service’. If it did then he is entitled to compensation.
Neither party focussed on the phrase used in the statute – ‘while the person was a member rendering defence service’. The applicant submitted that I would be assisted by the High Court’s decision in Comcare v PVYW (PVYW), which it described as the ‘seminal authority for ‘connection to service’. I cannot agree with that characterisation.[2] PVYW concerns the question of whether a person is ‘in the course of employment’ during an interlude in an overall period of civilian employment for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Given the different statutory context (and text), the simple transfer of the principles enunciated in PVYW concerning the SRC Act into the MRC Act is fraught with danger. The question to be addressed is whether the applicant was a member rendering defence service when he was struck in the carpark and, at least on the surface, PVYW has nothing to say on that question.
[2] (2013) 250 CLR 246.
I was also referred to the Veterans’ Review Board decision in Houghton v Repatriation Commission (VRB N19/0041) as providing assistance in relation to the interpretation of paragraph 27(a). That decision was of limited assistance in understanding how a temporal test like the one found in paragraph 27(a) should be approached. Houghton purported to address the question of whether the injury in question arose out of or was attributable to defence service – the test in paragraph 27(b) and self-evidently a causal nexus test. Despite this, in Houghton the Board relied heavily on PVYW to determine the issue, even though that case is concerned with whether the temporal test in the SRC Act is met. The analysis of the statutory test in the decision is brief and betrays considerable confusion on the part of the Board. It sheds no light on the proper approach to paragraph 27(a).
I was also referred by the applicant to the Tribunal decision of Military Rehabilitation and Compensation Commission and Archer.[3] In that decision liability pursuant to paragraph 27(a) was considered. The applicant’s contention that the applicant’s injury met the requirements in paragraph 27(a) was rejected. The occurrence that caused Mr Archer’s injuries was found not to have occurred when he was rendering defence service because it happened in an interval between discrete periods of work and not during an overall period of work (although liability was established by reference to other paragraphs in section 27). Again, the approach to statutory interpretation was unorthodox in that concepts derived from cases considering the SRC Act provisions were used to answer the differently worded statutory questions raised by paragraph 27(a).
[3] [2010] AATA 525.
The respondent referred me to the AAT decision of Spriggins and Repatriation Commission, a case which was concerned with a causal test under the Veterans’ Entitlements Act 1986.[4] Again it was difficult to see how such a case could assist me when considering the temporal test in paragraph 27(a).
[4] [2007] AATA 1657.
In the absence of much assistance from existing authority it is necessary to turn attention to the text of the statute read in context in the broadest sense of that word. Somewhat surprisingly,after a closer examination of the statutory framework and for reasons which I explain below, I am satisfied that the determinative question in this case is whether the incident which caused the applicant’s injury occurred ‘in the course of duty’. Consequently, the High Court’s consideration of the concept ‘in the course of employment’ in PVYW does provide some assistance.
Before addressing that question though, it is necessary to outline why it is relevant to ask whether the occurrence happened in the course of duty, notwithstanding that paragraph 27(a) asks whether the occurrence happened ‘while the person was a member rendering defence service’.
The answer to that question is derived from the way in which liability is structured in section 27 of the MRC Act.
The MRC Act contains the concept of ‘defence service’. The same concept existed in the Veterans Entitlements Act 1986 (VEA Act) but was defined differently, and the concept played a different role for the purposes of determining liability.
As defined, the concept of ‘defence service’ in the MRC Act covers the three kinds of service which a member can render. Warlike, non-warlike and peacetime service.
Whether a person is rendering warlike and non-warlike service is determined by reference to a ministerial determination made for the purpose of defining service as falling within those categories. When a person is deployed to a particular place that has been declared appropriately by the Minister, then they are rendering warlike or non-warlike service (depending on the determination) for the entire time they are deployed there. The scope of the MRC’s coverage in these circumstances is broad. The explanatory memorandum to the bill explains coverage in the following terms:
Clause 6 - Kinds of service to which this Act applies
Subclause (1) refers to the three categories of service that can be performed within the ADF. Warlike and non-warlike service are declared through a determination made by the Minister for Defence. Peacetime service constitutes all other forms of service.
In 1993 the Government decided that the Minister for Defence, in consultation with the Prime Minister and on advice from the CDF, would be responsible for declaring deployments as either warlike or non-warlike. In making the decision as to whether a deployment will be declared warlike or non-warlike, the Minister for Defence will rely on all information available at the time. Upon a declaration by the Minister for Defence that an ADF deployment is warlike or non-warlike, a range of conditions of service is automatically put in place.
…
Journeys and travel undertaken while on warlike and non-warlike service are parts of that service whether it is a leave period or not. But for being required to perform military service of that kind and in that area the travel would not have been necessary. In these circumstances all travel is a part of the activity and duty of the member. (emphasis added)
This indicates that compensation coverage while rendering warlike and non-warlike service applies broadly and may even cover a person twenty-four hours a day, seven days a week, regardless of what activity the member is engaged in (subject to any specific statutory exclusion). Injuries suffered as a result of occurrences which happen when a person is on leave while rendering warlike or non-warlike service are likely to be compensable.
The explanatory memorandum however suggests that the coverage for a person ‘while a person was rendering peacetime service’ is more limited. For example, it states:
The "port-to-port provisions" [which give the blanket coverage identified above] do not apply if a member never enters the designated area [ie the area declared for the purposes of determining warlike or non-warlike service]. That travel would be covered for compensation but on a more limited basis.
The question this raises is ‘how can this be?’. Paragraph 27(a) applies to injuries resulting from occurrences which happened while a person is rendering defence service. Defence service is either warlike, non-warlike or peacetime service. If a member is always rendering a service of one kind or another then one conclusion that is open is that they are covered by paragraph 27(a) in relation to any injury which is caused by an occurrence at any time because a member is rendering peacetime service whenever they are not rendering warlike or non-warlike service.
If paragraph 27(a) is read in isolation that might be the appropriate conclusion. However, reading paragraph 27(a) in context suggests that another reading is open and more consistent with Parliament’s intention.
The first point to be made is that if the intention of paragraph 27(a) was to provide total coverage for members at all times, it would be unnecessary for section 27 to be so specific and multilayered. If the Parliament intended that members be covered one hundred percent of the time regardless of what they were doing it would have been very easy to define liability by reference to the fact that a person is a member. The Parliament did not do that. This implies that being a member when an occurrence which causes an injury happens is not all that is required for liability to attach to an injury.
Second, the fact that paragraph 27(e) has been included to expand liability for injuries suffered on journeys to and from a place where duties are performed implies that, absent the statutory extension, injuries suffered in that period would not be covered by paragraph 27(a). In other words, if paragraph 27(e) is to have any work to do, paragraph 27(a) cannot produce the result that every occurrence that happens to a member which causes an injury results in the compensation becoming payable because a member is at all times rendering one form of service or another.
Third, the explanatory memorandum provides support for the notion that a member rendering peacetime service is less comprehensively covered than a member rendering warlike or non-warlike coverage. So much is clear in the following passage:
Paragraph 27(e) provides that these travel provisions, sometimes called `journey provisions', apply when a member of the ADF is not actually carrying out any of his or her required duties but is going to them or away from them. Travel related to performance of duty is covered by clause 27(a).
This paragraph applies to peacetime service. Anything that happens while on warlike or non-warlike service is considered to satisfy either of paragraph 27(a) or (c).
In these circumstances it is reasonable to conclude that it was not Parliament’s intention to provide coverage on the basis that a member is rendering defence service one hundred percent of the time. If that was Parliament’s intention the journey claim provisions would be wholly redundant. A necessary corollary of that, is that a person is not rendering peacetime whenever they are not rendering warlike or non-warlike service.
The question which then arises is, if members are not covered one hundred percent of the time, what is the scope of coverage? When is a member rendering peacetime service and when are they not?
The presence of the journey claim provisions provides a clue, but a somewhat Delphic one. Viewed in the broad it is clear that by including section 27(e), the Parliament was assuming that they were adding in a basis of liability that would not otherwise exist when a member was on a journey to work or a journey home. That carries with it the implication that paragraph 27(a), properly understood, does not apply to a member going to, or travelling from the place where they perform duties. At that point in time, the member is regarded as not rendering defence service because ‘they are otherwise than in the course of duty’.
Paragraph 27(e) remedies what would otherwise be a gap in coverage by eliminating for the purposes of journey claims the unstated requirement in paragraph (a) that to be rendering ‘defence service’ during a period of peacetime service, a member must also establish that they were ‘in the course of duty’.
Thus, the inclusion of paragraph 27(e) carries with it the implication that paragraph 27(a) would not cover the member on such a journey, even though they could broadly be described as being in a period where they are rendering peacetime service. For the purposes of ‘rendering defence service’ as that term should be understood in paragraph (a), they are not rendering that service because they are otherwise than in the course of duty. Consequently paragraph 27(e) both reveals the limitation that is implicit in paragraph (a) and remedies it in relation to certain kinds of journey claims.
It is for this reason that PVYW can provide assistance in determining whether the applicant was ‘rendering defence service’. In circumstances where a member is not rendering warlike or non-warlike service, he or she can only be found to be rendering defence service if the occurrence which caused the injury occurred when the member was ‘in the course of duty’.
This is very similar to the concept of ‘in the course of employment’ in the SRC Act and so consideration of the scope of that phrase is likely to provide assistance. For that reason, the test laid out in PVYW is relevant.
To frame the issues in terms analogous to PVYW, the following questions should be asked and answered.
First, did the employee suffer the injury while not engaged in actual work? In this case the answer is yes.
Second, was the injury suffered in an interlude in an overall period of employment (or duties) or was he injured in an interval between periods of employment (or duties)? The respondent concedes that he was injured in an interlude in an overall period of employment – being the period in which HMAS Darwin was performing sea going duties away from its home base.[5]
[5] RSOFIC at [6.19].
Third, if the applicant was injured in an interlude in an overall period of duties, can the injury which occurred between periods of actual work be regarded as having occurred in the course of duties because the employer induced or encouraged the applicant to spend that interval in a particular place or in undertaking a particular activity?
I am not satisfied that applicant was induced or encouraged in either way. The applicant was given the freedom to spend his afternoon where he wanted, doing what he wanted. The applicant took advantage of that freedom.. If he had been expected to attend a specific event and the incident happened at that event, it is likely that he would have been covered. But in circumstances where the applicant chose where and how he spent his time, I am satisfied that the incident occurred otherwise than in the course of his duties. The placing of the applicant in the general vicinity of the Hunter Valley is not sufficient to establish that the applicant was encouraged to spend his time at the place where he was injured. Equally, a general encouragement on the part of the RAN to have sailors take advantage of shore leave or consume alcohol is not sufficient to establish that the applicant, by undertaking a winery tour, was in the course of his duties.
In light of these conclusions I am satisfied that the applicant was not rendering defence service when the incident occurred.
Liability under s 27(b)
Paragraph 27(b) provides for two alternative bases for liability:
(d)If the injury arose out of any defence service rendered by the person while a member; or
(e)was attributable to any defence service rendered by the person while a member.
Both tests are in essence causal.
The High Court considered an identically worded causal test included in the VE Act in the case of Roncevich v Repatriation Commission.[6] The plurality made clear that the proper question to ask is whether the injury arose out of, or was attributable to, any defence service of the appellant? Whether an injury arose out of defence service depends upon the nature of the person’s service, the circumstances in which the service is undertaken and what the person is expected or required to do to carry out the actual duties. The connection between the injury and the service must be causal.
[6] (2005) 222 CLR 115.
In Roncevich there were things which the applicant was expected to do as part of his service – attending a function (at which he became inebriated), returning to his quarters to iron his uniform for the next day which played a role in the injury which he ultimately suffered. It is possible to see how an affirmative answer could be given relating the expectations placed on him as a serviceman and the injury which he ultimately suffered.
In the present case, I am unable to find such a link. The applicant was given freedom as to how and where he could spend his afternoon. While in a general sense, if it were not for his service he would not have been in the Hunter Valley. Were he not with other members of the crew he may not have chosen to go on a winery tour. But there was nothing that he was expected to do as part of his defence service which put him at the specific location where he was struck, nor was he expected or required to engage in that particular wine tour.
The necessary causal link with the applicant’s defence service is not present. It is not sufficient as the applicant submits that ‘the encouragement of the Commanding Officer was for the Applicant and his shipmates to undertake some leisure activity away from the ship. This was exactly what the Applicant and his shipmates did’.
The Parliament has provided a generous compensation scheme which covers members of the armed forces in a wide range of circumstances. It does not however usually cover them when they are not performing any duties and are engaging in leisure activities of their own choosing. In the applicant’s case he was not rendering defence service at the time he was struck and his injuries are not attributable to, nor did they arise out of defence service.
In light of those conclusions, decision under review is affirmed.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan
....................................[sgd]....................................
Associate
Dated: 3 November 2023
Date(s) of hearing: 4 September 2023 Counsel for the Applicant: Jennifer Woodward Advocate for the Applicant: Ross Thomas, RSL Woden Valley Sub-Branch Counsel for the Respondent: Luke Woolley Solicitors for the Respondent: Sparke Helmore
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