Scanlin and Military Rehabilitation and Compensation Commission (Compensation)

[2021] AATA 721

Scanlin and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 721 (31 March 2021)

Division:Veterans' Appeals Division

File Number(s):      2019/2298

Re:Jeffrey Scanlin

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:31 March 2021

Place:Sydney

1. The reviewable decision, being the decision of Comcare made 11 April 2019, is set aside.

2. In substitution it is decided that the Commonwealth is liable to pay compensation to Mr Scanlin in respect of an injury suffered by him on 24 February 1991, being an injury to his left leg.

3. Within fourteen days of the date of this decision each party may apply to the Tribunal for directions in relation to costs; should such an application not be made, the Commonwealth shall pay the costs incurred by Mr Scanlin in these proceedings.

   .............................[SGD]...........................................

   Deputy President J W Constance

   CATCHWORDS

   VETERANS’ AFFAIRS – compensation – left leg injury – whether injury arose out of, or in the course of, the Applicant’s employment – where Applicant’s injury occurred while on shore leave – where injury occurred while the Applicant was travelling to attend a volleyball game arranged by his employer – where employer sought to exercise control of the conduct of crew members on shore leave – where Applicant encouraged to attend the sporting event by his employer – where employer expected the Applicant to participate in the event and to arrange his own means of travel – decision set aside and substituted

   LEGISLATION

   Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth) ss 5A, 6, 14

   CASES

   Comcare v PVYW (2013) 250 CLR 246
   Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473
   Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
   Roncevich v Repatriation Commission (2005) 222 CLR 115

   REASONS FOR DECISION

   Deputy President J W Constance

   31 March 2021

   A.   INTRODUCTION

4. In 1988 Mr Scanlin enlisted in the Royal Australian Navy as a 17 year-old.

5. On 24 February 1991 Mr Scanlin was enjoying some well-earned shore leave on Langkawi Island where HMAS Stuart, on which he was deployed, was berthed.

6. The Navy’s Daily Injury Record of the accident in which Mr Scanlin was involved on that day, was succinct:

   On short leave Langkawi Island Malaysia, rented a moped; fell on road, sustaining injuries L leg. Drank 2 x beer at 1200. Hired moped at 1500. Pt does not smell of alcohol.[1]

   [1] Exhibit R1 at 257.

7. Mr Scanlin applied for compensation in respect of the injury in accordance with the provisions of the Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth).

8. On 26 November 2018 the Commission denied liability to pay compensation on the basis that Mr Scanlin’s injury did not arise out of, or in the course of, his employment by the Commonwealth.  Mr Scanlin requested the Commission to reconsider the decision.  On 15 April 2019 the Commission affirmed its earlier decision.  I will refer to the later decision as the reviewable decision.

9. Mr Scanlin has applied to the Tribunal to review the reviewable decision.  For the reasons which follow the reviewable decision will be set aside and in substitution it will be decided that the Commonwealth is liable to compensate Mr Scanlin in respect of the injury.

   B.     BACKGROUND – AGREED FACTS

10. The facts set out in the following paragraph are reproduced from the Respondent’s Statement of Issues, Facts and Contentions dated 5 March 2020.  Mr Scanlin agrees with this statement of facts[2] and, based on the evidence before me, I am satisfied that the agreement is appropriate.

    [2] Applicant’s Statement of Issues, Facts and Contentions dated 15 October 2020 at [10].

11. I am satisfied of the following facts.  A reference to a document with the pre-fix “T” is a reference to a document in exhibit R1.

    4.  The applicant was born on [redacted] 1971 and is currently [49] years old.

    5. The applicant enlisted in the Royal Australian Navy (‘RAN’) on [redacted] 1988. He discharged at his own request on [redacted] 1995.

    6. The applicant suffered significant injuries to his left leg as a result of a moped accident that occurred on Sunday, 24 February 1991. The accident occurred on Langkawi Island, while the applicant was on shore leave during a period of deployment on HMAS Stuart between January and May 1991.

    7. A Daily Injury Record dated 24 February 1991 [T9, p257] described the accident as follows:

    On short leave Langkawi Island Malaysia, rented a moped; fell on road, sustaining injuries L leg. Drank 2 x beer at 1200. Hired moped at 1500. Pt does not smell of alcohol.

    It was recorded that the applicant was not on duty, and was not travelling to or from duty, and that he was on ‘weekend’ leave at the time.

    It was further recorded:

    By far the most serious injury I’ve had to process – an unfortunate incident. Recommend in future that if any sailors be in the possession of current Australian motorcycle licence in order to consider renting said “mopeds”.

    8. A further Daily Injury Record [T9, p172] noted the applicant was expected to be in hospital for 20 days following treatment for a fractured left femur and laceration to his left hip suffered when he fell off a moped on Langkawi Island at around 3.30pm on 24 February 1991.

    9. A Report of Medical Board of Survey dated 17 April 1991 [T9, pp220 & 221] recorded that the applicant ‘was riding a moped, swerved to avoid a car and lost control, colliding with a pole and falling down an embankment’. He was recorded to have suffered a compound fracture of the left femoral shaft, a deep laceration of the left groin and a soft tissue injury of the left knee.

    10. The applicant underwent initial treatment for his injuries at Langkawi Island District Hospital before being transferred by HMAS Stuart to Glenaeagles Hospital in Penang. He was subsequently medevacked to Australia in March 1991 and referred to Dr David Wood, consultant orthopaedic surgeon.

    C.    FURTHER EVIDENCE

    Evidence of Mr Scanlin

12. Mr Scanlin provided a Statutory Declaration made 28 August 2019 and gave evidence at the hearing.  He impressed me as an honest witness who gave his evidence to the best of his recollection. I make findings of fact in accordance with his evidence as set out in the following nine paragraphs.

13. Mr Scanlin’s role aboard the vessel was a fitter/machinist and watch keeper in the engineering department. Typically, his role required repairing and maintaining mechanical machinery, ranging from valves to large steam turbines and gearboxes. This would often necessitate working in very tight, cramped and awkward spaces.

14. Mr Scanlin worked eight hours a day split into two four-hour shifts. In addition to those shifts he was required, on a regular basis, to carry out maintenance or cleaning.  When on shore leave, all watch keepers (including Mr Scanlin) could be called back to the ship to maintain a standing sea fire party and/or conduct machinery watch keeping whilst the vessel was berthed.

15. HMAS Stuart was berthed at Langkawi Island from 23 to 25 February 1991.

16. Mr Scanlin described the preparations for, and his time on, shore leave as follows:

    Prior to berthing the ship's commanding officer would inform the ship company via the intercom system of the expected behaviour of the crew. It was emphasised that all crew must demonstrate appropriate conduct and were representing HMAS Stuart, Royal Australian Navy and Australia. The Coxswains (Police) and Medics disseminated information on the notice board this provide details on "no-go" areas, departure dates and times, emergency contact details and shore patrol details. During the weekly divisional meetings the Engineer would discuss particular engineering issues, he would also reiterate the commanding officers conduct message. The divisional Warrant Officer discussed engineering issues and provide information on social club details.

    Additional notices were posted to the ships message board or on the door of the engineering HQ detailing onboard events such as cocktail party timings hosted by the ships officers. Such events took place on the ship's upper deck and the gangway was closed for the duration. This would mean no access on or off the vessel by other ranks during its duration of usually about two hours. This logistical obstacle encouraged members to leave the ship before the onboard events.

    While ashore we were to remain in close proximity to the ship during shore leave. If we intended to remain away from the shop for an extended period of time we were required to inform our heads of department in advance. I believe this was so that rosters being posted for members, particularly for watch keepers and critical positions on ships during entry and departure from the harbour and any engineering issue that may arise. Call back to the ship for watch keeping, maintenance or repairs was always possible and when it happened I had to be ready for duty immediately. This occurred numerous times…

    ……

    As a member of HMAS Stuart's sportsman's club ………. I took particular interest in the ship's sporting notices. These were posted on the mess notice board. It detailed information about the locations and timings for the sporting events such as soccer and volley ball which were being conducted on Langkawi Island. It also encouraged those not participating to attend and provide support. As I was a member of the ship's volleyball team it was my intention to play, or at a minimum, support the team during its match on Langkawi Island. In addition, there was a Sportsman's club social function and an engineering department social club function scheduled to be held ashore. Unless there was a good reason we were expected to be at these social functions because they are part of being on the ships team. I had not advised my head of division in this case because I was intending to return after the sporting event.

    Transportation on Langkawi Island was restricted to the ship's chartered bus. This was designated for officer use only and other ranks were required to arrange their own mode of transportation. At the time the most common transportation on Langkawi Island was a combined motor and pedal driven moped. As the community was aware of the ship's intended berthing dates the provided mopeds for hire near the wharf. I chose to use this transportation method. To my knowledge and experience most crew members hired mopeds for their transportation as I would often pass them on the roads.

    On the 24th February I was in company with Able Seaman Jason Maule. We went ashore and ate a meal and consumed one beer each at a local hotel. We then set off to the volleyball competition with plans to briefly visit a tourist landmark enroute. It was daylight and the roads were narrow and dry. I approached a 'T' intersection. There were no road markings and I intended to turn right. Vision was reduced due to rock and bushes. As I began to enter the intersection I noticed an oncoming vehicle (Taxi) driving around the corner on my side of the road. I took evasive action which forced me to drive straight. I subsequently collided with a guard rail and was thrown from the moped. The taxi continued without providing any assistance.[3]

    [3] Exhibit A1.

17. Mr Scanlin was required to stay on board on 23 February 1991 for watchkeeping.  He went onshore the following day.  Although he was not required to do so, he intended to return to the ship that night. If a sailor was on shore leave and was required for duties on board, a search party would be sent out.

18. Shore leave was different to recreation leave.  Recreation leave was applied for on an individual basis.  During recreation leave a sailor had less restrictions imposed on his conduct and was free to travel away from the vicinity of the ship.

19. At the time Mr Scanlin was injured, HMAS Stuart was on a farewell tour prior to its being decommissioned.  It was visiting all its affiliated communities in South- East Asia.

20. The sporting events on Langkawi were arranged in advance of the ship’s arrival and details put on notice boards.  Mr Scanlin was part of the ship’s soccer, rugby league and volleyball teams and a member of the sportsman’s club.  Playing sport and membership of the club was a matter of choice for the individual crew member.  It was expected that crew- members would attend these events to play and/or to support the teams.

21. The tourist attraction Mr Scanlin and Mr Moule planned to visit was on the way to the venue at which the volleyball game was to be held.  They had learned of the attraction from the waiter at the restaurant at which they had lunch earlier that day.  They intended to visit the site if they found it and then continue on their way to the game.  These plans were discussed between them before they left the port.

    Evidence of Mr Moule

22. Mr Moule provided a statutory declaration made 26 August 2019[4] and gave evidence at the hearing.

    [4] Exhibit A3.

23. I am satisfied that Mr Moule was an honest witness who gave his evidence to the best of his recollection.  I accept his evidence.

24. Mr Moule and Mr Scanlin went on shore together on the day Mr Scanlin was injured.  They hired a catamaran in the morning, had lunch and then hired mopeds and travelled towards the venue of the sporting event they intended to attend.  Mr Moule was travelling with Mr Scanlin when the accident occurred.

25. Mr Moule and Mr Scanlin did not discuss visiting any tourist sites other than the one referred to by Mr Scanlin. They had not reached the tourist site when the accident occurred.

26. Mr Moule did not recall whether they were travelling to take part in a game of soccer or a game of volleyball.  He intended to play and he had previously notified organisers of his intent to do so.

27. When asked to describe his attitude to participating in the ship’s sporting teams, Mr Moule said:

    It’s highly encouraged to attend. It was a good look for the navy and obviously the more people that attend the more chances we’ve got of winning the game, which is a bonus for us. So it was certainly encouraged that we did attend by the noticeboard and the head of our department always encouraged us to attend these things. Like, yes, any sporting – (indistinct) played footy in Australia, and it was always highly encouraged that we attended to put the best team forward for the navy.[5]

    [5] Transcript, 30 November 2020 at 24.

    Statutory Declaration of Mr Suiter

28. Mr Suiter provided a statutory declaration made 9 June 2020.[6]  He did not give evidence.  Excepting some paragraphs, the declaration was admitted into evidence by consent.

    [6] Exhibit A4.

29. Mr Suiter was the Marine Engineering Officer of HMAS Stuart at the time Mr Scanlin was injured.  Mr Scanlin was one of the sailors in Mr Suiter’s department.  He worked under the supervision of one of the more senior members of the engineering team.

30. Mr Suiter stated, in part:

    3. The ship operates 24 hrs per day and the crew were in continuous watches for the period at sea, this would include all be a few specialist personnel. As the vessel could be at sea for a long period of time and dependent on the tasking of the vessel at the time duty was inevitably long and arduous. With the vessel being a warship, various exercises are conducted on a continuous basis around the clock, to maintain suitable levels of readiness at all times. These exercises plus watchkeeping can be very taxing on the whole crew and rest and recreation is vital to maintain peoples' physical and mental well-being. Shore leave was granted during Stuart's visit to Langkawi after an intense period of exercises and watch keeping.

    …

    6. Participation in sports was encouraged at all levels of the ship's command, and Stuart's teams played against various team in the places visited as well as interdepartmental games…

    7. When visiting the various ports, the crew was expected to behave in a civil manner, which reflects the Australian Foreign Policy objective of promoting Regional stability and security. Any unsuitable behaviour ashore was not taken lightly and the offenders would be subject to charges under the Defence Discipline Act.

    D.  RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION (DEFENCE-RELATED CLAIMS) ACT 1988 (CTH)

31. Subsection 14(1) provides:

    (1)  Subject to this Part, the Commonwealth is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

32. Subsection 5A(1) provides:

    (1)  In this Act:

    injury means:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.  [Emphasis added]

33. Subsection 6(1) paragraph (c) of the Act provides:

    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:

    ……….

    (c)  while the employee was temporarily absent from the employee's place of work undertaking an activity:

    (i)  associated with the employee's employment; or

    (ii)  at the direction or request of the Commonwealth; or

    ……….

    E.  ISSUES FOR DETERMINATION

34. The following issues arise for determination.

    (1)Was the injury suffered by Mr Scanlin an injury “arising out of” his employment by the Commonwealth[7] within the meaning of subsection 5A(1) of the Act?

    (2)If not, was the injury suffered by Mr Scanlin an injury suffered “in the course of,” his employment by the Commonwealth within the meaning of subsection 5A(1) of the Act?

    (3)If not, was the injury suffered by Mr Scanlin “sustained ……  while [Mr Scanlin] was temporarily absent from [his] place of work undertaking an activity …… associated with [his] employment” by the Commonwealth within the meaning of paragraph 6(1)(c) of the Act?

    [7] Section 5 of the Act provides that a member of the Defence Force is taken to be employed by the Commonwealth.

    F.  REASONING

    Issue 1:  Was the injury suffered by Mr Scanlin an injury “arising out of” his employment by the Commonwealth within the meaning of subsection 5A(1) of the Act?

35. In Federal Broom Company Pty Ltd v Semlitch[8] the High Court of Australia considered the word “employment” in the context of the contribution of employment to an injury suffered by a worker claiming compensation under the Workers’ Compensation Act, 1926-1960 (NSW).

    [8] (1964) 110 CLR 626.

36. Windeyer J said, in part:

    I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment.”[9]

    [9] At 641.

37. The High Court considered the meaning of the phrase “arising out of defence service” in Roncevich v Repatriation Commission.[10]The Veterans’ Entitlement Act 1986 (Cth) provided that an injury was compensable if it arose out of, or was attributable to, the member’s defence service.

    [10] (2005) 222 CLR 115.

38. In a majority judgement the 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 connection must however be a causal and not merely temporal one. 

    ………………..

    The use disjunctively in s. 70(5) of the expression “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 as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant,  direct or proximate.[11] [Emphasis in original].

    [11] At 125-126.

1. Applying the principles set out above I am satisfied that the injury suffered by Mr Scanlin arose out of his employment by the Commonwealth.  My reasons for this conclusion are set out in the following three paragraphs.

2. I am satisfied that, at the time he was injured, Mr Scanlin was travelling to attend a volleyball game arranged by other crew members of HMAS Stuart or others (such as diplomatic personnel) on their behalf.  The fact that Mr Scanlin contemplated that he may stop on the way for sight-seeing does not change the purpose of his trip.

3. Based on the evidence to which I have referred, I am satisfied that Mr Scanlin was encouraged to attend the sporting event by the Commanding Officer and other Officers of HMAS Stuart.  Also, as a member of the sportsman’s club, his superiors expected him to participate in the event and to arrange his own means of travel.

4. The Commanding Officer of HMAS Stuart  sought to exercise control of the conduct of crew members, including Mr Scanlin, while they were on shore leave by:

   ·informing crew members of how they were to behave;

   ·informing crew members that, while on shore leave, they were representatives of HMAS Stuart, the Royal Australian Navy and Australia;

   ·subjecting crew members to Navy disciplinary standards;

   ·restricting the extent of travel by crew members;

   ·requiring crew members to be ready to return to ship if and when required.

5. For these reasons I conclude that Mr Scanlin’s injury arose out of his employment by the Commonwealth.

   Issue 2:  Was the injury suffered by Mr Scanlin an injury suffered “in the course of” his employment by the Commonwealth within the meaning of subsection 5A(1) of the Act?

6. In view of the conclusion I have reached in relation to the first issue it is unnecessary that I consider those that follow.  However, in case I am wrong in that conclusion I will consider them.

7. To find that an injury was suffered “in the course of employment” it is necessary that it be shown that there was a temporal connection between the injury and the employment.

   Judgements of the High Court

8. In Hatzimanolis v A.N.I. Corporation Limited[12] the High Court said:

   From a very early stage in the history of the law of workers’ compensation, it was recognized that the course of employment covered not only the actual work which a person was employed to do but also “the natural incidents connected with the class of work”. In 1931 in Whittingham v. Commissioner of Railways (W.A), Dixon J. said that there can “no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service”. But his Honour went on to say that it was “another to be sure what it included within this conception”. He thought that, in considering what was incidental to service, the sufficiency of the connexion between the worker’s employment and what he was doing at the time that he was injured could only be a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered.

   Incidence of service, however, is not a principle the application of which will determine whether the injury was sustained in the course of employment; it is a conclusion. When a tribunal concludes that a worker sustained injury while doing something incidental to his or her employment, it records a result which must have been reached, consciously or unconsciously, by reference to some principle or standard which leads to that result. Furthermore, while the matters to which Dixon J. referred in Whittingham must be examined for the purpose of determining whether an injury was sustained in the course of employment, those matters do not automatically determine that question. Without the assistance of an organizing principle, a tribunal of fact cannot know which of them is or are determinative.[13]

   And later:

   A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment is that in almost all of them the employer was authorized, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way.[14]

   ………………..

   The course of employment is ordinarily perceived as commencing when the employee starts work I accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or over an overall period or episode of work.[15]

   [12] (1992) 173 CLR 473.

   [13] At 478-479.

   [14] At 482.

   [15] At 483.

9. In Comcare v PVYW[16] the High Court explained how the Hatzimanolis principle is to be applied:

   The starting point in applying what was said in Hatzimanois, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.[17]

   [16] (2013) 250 CLR 246.

   [17] At 262.

   Discussion  

10. Although shore leave for the crew was authorised from 23-25 February 1991, Mr Scanlin did not commence his leave until the 24^th as he was required for duty on the 23^rd.  Although he intended to return to the ship on the evening of the 24^th he was not required to do so until the following day. On this basis I am satisfied that he was injured at a time between two discrete periods of employment and the Hatzimanolis principle is applicable.

11. As the starting point I am satisfied that when he was injured, Mr Scanlin was not engaged in actual work.  Travelling to a volleyball game to participate as a player and/or spectator was not part of the duties required of him by his employer.

12. To answer the next inquiry posed by the High Court, Mr Scanlin’s injury was brought about while he was engaged in an activity (i.e. travelling to a sporting event)  rather than by reference to the place at which that activity occurred.

13. The question then arises: did the Commonwealth induce or encourage Mr Scanlin to engage in attending the volleyball game while he was on shore leave?

14. For the reasons I have stated in deciding that Mr Scanlin’s injury arose out of his employment, I find that the Commonwealth did encourage him to attend the volleyball game.  It follows that the injury suffered by Mr Scanlin on 24 February 1991 arose in the course of his employment by the Commonwealth.

    Issue 3:  Was the injury suffered by Mr Scanlin “sustained ……  while [Mr Scanlin] was temporarily absent from [his] place of work undertaking an activity …… associated with [his] employment” by the Commonwealth, within the meaning of paragraph 6(1)(c) of the Act?

15. Two questions arise in considering this issue.

    (1)Was the injury sustained while Mr Scanlin was temporarily absent from his place of work?

    (2)If so, was he undertaking an activity associated with his employment at the time?

    Was Mr Scanlin “temporarily absent” from his employment when he was injured?

16. Whether or not an absence is temporary is not to be determined solely by the length of the absence.  The words used in the Act must be interpreted in their context.

17. The Oxford English Dictionary definition of temporary includes:

    Lasting for a limited time; existing or valid for a time (only); not permanent; made to supply a passing need.

18. The Macquarie Dictionary includes:

    … lasting, existing, serving, or effective for a time only, not permanent …

19. Based on the evidence to which I have already referred, I am satisfied that both Mr Scanlin and his employer intended that he would be absent from his employment from the morning of 24 February 1991 until sometime the following day.  I do not have evidence to permit me to find the exact time Mr Scanlin was required to return to the ship that day.

20. On the basis of the relatively short time of the absence from duty and the fact that Mr Scanlin could be recalled for duty at any time, I am satisfied that he was temporarily absent from his employment within the meaning of subsection 6(1) of the Act.

    F.  CONCLUSION

21. The reviewable decision, being the decision of Comcare made 11 April 2019, will be set aside.

22. In substitution it will be decided that the Commonwealth is liable to pay compensation to Mr Scanlin in respect of an injury suffered by him on 24 February 1991, being an injury to his left leg.

23. Within fourteen days of the date of this decision each party may apply to the Tribunal for directions in relation to costs; should such an application not be made, the Commonwealth shall pay the costs incurred by Mr Scanlin in these proceedings.

I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 31 March 2021

Date(s) of hearing:	30 November 2020, 2 December 2020
Advocate for the Applicant:	R Kelloway and W Forsbey
Solicitors for the Respondent:	B O'Brien, Moray & Agnew Solicitors