Smith and Repatriation Commission
[2006] AATA 123
•15 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 123
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/144
VETERANS' APPEALS DIVISION
Re: TREVOR VERNON SMITH
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:15 February 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – cervical spondylosis secondary to a motor vehicle accident in 1978 – accident occurring after cessation of duty and during an indirect route to home – increased risk of sustaining injury – interruption of journey
Veterans' Entitlements Act 1986 ss 9, 70, 120(4), 120(b)
Statements of Principles
Instrument № 64 of 2002 concerning cervical spondylosis
Instrument № 82 of 2002 concerning cervical spondylosis
Re Smith and Repatriation Commission (1996) 42 ALD 186
Repatriation Commission v Smith (1997) 75 FCR 298
Re Winship and Repatriation Commission (1990) 20 ALD 101
REASONS FOR DECISION
15 February 20062006 Miss E.A. Shanahan, Member
1. Mr Trevor Vernon Smith (the applicant) served with the Australian Army (the army) from 9 April 1972 until 6 September 1982. He had eligible service from 7 December 1972 until 6 September 1982. Therefore, his application must attract s 120(4) of the Veterans' Entitlements Act 1986 (the Act), and is accordingly to be determined on the balance of probabilities.
2. On 7 December 1978 Mr Smith was involved in a motor vehicle accident (the accident) at the intersection of Warrigal and High Street Roads in the Melbourne suburbs of Ashwood/Ashburton. Mr Smith was a front‑seat passenger in a motor vehicle driven by a visiting army officer. It appears that Mr Smith lost consciousness and his first memory of the event was when he woke in the casualty department of the Box Hill Hospital. A plain X‑ray of the cervical spine one day after the accident was reported as being normal. However, from the time of the accident, he complained of headache and neck pain with neurological symptoms in both arms. Mr Smith's persisting pain led to further investigation; and in 1991 Mr Peter Petty, neurosurgeon, performed a C3‑4 discectomy. Mr Smith has subsequently undergone two further cervical discectomies, two cervical spinal fusions, the implantation of a dorsal column stimulator and eventually, the implantation of a morphine reservoir which delivers a twice daily intrathecal injection of morphine to provide pain relief.
3. There is no question of the nature and extent of Mr Smith's debilitating cervical spinal pathology which appears to have been attributed, by his treating medical practitioner's, to the accident. The Tribunal accepts the diagnosis of cervical spondylosis, but notes that Mr Smith's underlying pathology is far more severe than the usual presentation of cervical spondylosis. Mr Smith also suffered a mild myocardial infarction in 1982, but he is not pursuing his previously rejected claim for this condition.
4. In 1994 Mr Smith lodged a claim for disability pension with the Repatriation Commission claiming that the coronary artery disease and cervical spondylosis from which he suffered were defence-caused. The Commission denied the claim. Mr Smith sought review of the decision by the Veterans’ Review Board (the VRB) The VRB affirmed the decision on 9 December 1994. In 1995 Mr Smith lodged an application with the Administrative Appeals Tribunal (the AAT) for review of the VRB decision. Immediately before the hearing a preliminary issue emerged when Mr Smith argued that his condition arose out of the accident on 7 December 1978. The respondent argued that the journey undertaken by the applicant on that date was outside the provisions of s 70 of the Act.
5. The Tribunal’s decision was confined to the consideration of s 70 of the Act and did not consider the question of diagnosis and disability. The Tribunal found that Mr Smith's journey from work, after completing his duties, to his home in East Preston via his mother‑in‑law's home in Chadstone, was not a reasonably direct route. It also found that an interruption of several hours in the journey had occurred. However, the Tribunal decided that neither of these factors had increased the risk of sustaining an injury to any substantial degree (s 70(8)(a), s 70(8)(b)). The Tribunal concluded that, as a result of Mr Smith's injuries from the accident on 7 December 1978 and the consequent development of cervical spondylosis, his condition was defence‑caused within the meaning of the Act. The Tribunal set aside the decision of the VRB and remitted the application to the respondent for assessment of pension. The Tribunal's decision appears to have been based on its interpretation of a report by Mr William Keramidas, entitled Traffic Engineering & Risk Assessment Report (Re Smith and Repatriation Commission (1996) 42 ALD 186. Mr Keramidas is a forensic engineer and collision re‑constructionist and was then with the Victorian Police.
6. The Repatriation Commission appealed the Tribunal's decision to the Federal Court of Australia. His Honour Sundberg J identified four errors of law in the Tribunal's decision and allowed the appeal. The decision was set aside and remitted to the Tribunal for hearing in accordance with the Court's reasons for judgment (Repatriation Commission v Smith (1997) 75 FCR 298).
7. Mr Smith did not pursue a new hearing before the AAT at that time, as he lacked the financial resources.
8. Mr Smith lodged a new claim for disability pension on 17 March 2004 claiming to be suffering from cervical spondylosis, lumbar spondylosis and ischaemic heart disease. A delegate of the respondent rejected this claim on 29 July 2004. Mr Smith then appealed to the VRB for review of the decision. The VRB affirmed the decision regarding the claim for cervical spondylosis and ischaemic heart disease, but determined that the condition of lumbar spondylosis was defence‑caused.
9. Mr Smith applied for review of the VRB decision with respect to the condition of cervical spondylosis on 24 February 2005. Mr Smith has not sought review of the decision regarding his ischaemic heart disease.
ISSUES
10. While not considered by the Tribunal in its decision of 21 June 1996, Mr Smith's diagnosis of severe cervical spondylosis and the level of his disability are not in dispute. Nor is it disputed that he has suffered from neck pain and intermittent paresthesia of both arms, in particular the left, since the accident of 7 December 1978. Mr Smith was diagnosed as having a C3‑4 disc protrusion in June 1980, necessitating discectomy on 12 January 1981. The medical reports appear to attribute the cervical vertebral disease to the accident. At the time of surgery Mr Smith was 30 years old. The medical evidence is such that Mr Smith would satisfy the requirement of factor 6(f) of the Statement of Principles (SoP) № 34 of 2005 concerning cervical spondylosis: having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis. The Tribunal accepts the diagnosis of cervical spondylosis with debilitating pathology, refractive to various forms of treatment and now only partially controlled. This is attributable to the accident in 1978.
11. The issue for this Tribunal to decide remains the same as that addressed in the Tribunal’s decision of 21 June 1996, namely whether the journey undertaken by Mr Smith on 6 December 1978 was outside the provisions of s 70 of the Act. This Tribunal has reached the decision that the journey undertaken by Mr Smith on completion of his period of duty on 6 December 1978 to his home in East Preston via Chadstone did substantially increase the risk of injury (s 70(8)(b)); and that the interruption or delay in commencing the journey to his home (s 70(8)(a)) also substantially increased the risk of injury.
12. Mr Smith was represented by Mr Bruce Turner, an advocate with the Returned & Services League and the respondent was represented by Ms Jean McCulloch, an advocate with the Department of Veterans’ Affairs. Mr Smith gave evidence. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents). The respondent tendered a further report from Mr Keramidas dated 7 November 2005 (Exhibit R1).
EVIDENCE BEFORE THE TRIBUNAL
13. Mr Smith relied primarily on the T‑documents. However, he gave evidence that at the time of the accident in 1978, he was stationed at Watsonia army barracks and that he performed the duties of a motor mechanic, repairing army vehicles. He lived in married quarters in East Preston with his wife and two children. At the time his wife was undertaking an archery course with a view to competing at the interstate level and internationally. His wife was engaged in archery practice two to three nights per week; and she took their children to her mother's home in Chadstone while she practised. On these occasions it was Mr Smith's usual practice to drive from his work in Watsonia to his mother‑in‑law's home in Chadstone and then return to his married quarters in East Preston. On 6 December 1978 he followed his usual practice, travelling to his mother‑in‑law's home in Chadstone. He was with two army officers visiting from interstate. He was a passenger in the car. On this night his wife and children decided not to return to East Preston and stayed at Mr Smith's mother‑in‑law's home. Mr Smith explained that it was not his practice to stay overnight at Chadstone as he was required to wear a fresh uniform to work the following day and his uniforms were at his East Preston quarters. Mr Smith said that he frequently took visiting army officers to his home in East Preston and also to his mother‑in‑law's home in Chadstone.
14. The Tribunal asked Mr Smith how long his wife had been undertaking archery training and whether the army was aware of her pursuit. Mr Smith said that his wife had been training and competing for many years; and that he had arranged his posting to Melbourne to facilitate her training. He said that the army was aware of his practice although it did not necessarily accept or approve this arrangement; although his postings from Puckapunyal to Wantirna and eventually to Frankston were, in part, to facilitate his wife's training.
15. Mr Smith informed the Tribunal that he had undergone a plain X‑ray of his neck in 1978, a few days after the accident and this had shown no abnormality.
DOCUMENTARY EVIDENCE
Medical Evidence
16. As previously stated in this decision, there is no dispute regarding Mr Smith's diagnosis, nor his severe level of disability. He has undergone at least four operations on his cervical spine and remains symptomatic. His pain is now controlled by radio frequency denervation of cervical and lumbar nerve roots and the insertion of a morphine pump intrathecally, by which he receives 16 milligrams of morphine per day. He is also on oral medication for pain control. The medical data is not disputed by the respondent.
Traffic Engineering & Risk Assessment Report (concerning the collision on
7 December 1978—Mr William Keramidas
17. Mr Keramidas has provided two reports; the first dated 14 August 1995 and the second dated 7 November 2005 (the 1995 report and the 2005 report). Mr Keramidas has also provided a large volume of documents containing statistics and analysis regarding the risk of injury when travelling the various routes and potential routes between Mr Smith’s place of work in Watsonia and his home in East Preston compared with the risks of the route from Watsonia to Chadstone to East Preston; and the effect of the five and a half hour delay or interruption in his journey at Chadstone on 6 December 1978. Mr Keramidas provided statistical data in terms of collisions per kilometre and collisions per intersection for the routes under consideration. In Mr Keramidas' 1995 report he concluded that there was a non‑statistically significant increase in risk based on traffic accidents per kilometre and in terms of intersection per collision. Mr Keramidas' 1995 report was subject to the fact that the actual route taken from the Watsonia barracks to Chadstone had not been defined and that the data he provided related primarily to VicRoads' statistics which had been collected from 1983 and not during the period of Mr Smith's accident in 1978. In addition, he had concentrated on the serious injury/fatal severity category, although data was provided with respect to the injury category. In his report on 14 August 1995 Mr Keramidas did not define the terms serious injury versus injury.
18. The respondent requested Mr Keramidas review his 1995 report and posed specific questions to him. In his 2005 report, Mr Keramidas advised that the VicRoads' crash statistics for the years between 1983 and 1988, used in the original analysis were no longer available. Thus, his 2005 report was based on data between 1987 and 2004. In this report he also referred to the coding categories available on police report forms, which distinguished "injury" from that of "serious injury". The term "injury" is assigned to injuries where medical treatment is required, but hospitalisation is not involved. The term "serious injury" indicates the need for admission to hospital.
19. The Tribunal accepts Mr Keramidas' argument that, while his opinion is not based on statistics from the period of the accident or the 1983‑1989 period, but is now based on the 1987‑2004 period, the subsequent or intervening alterations in road collisions statistics is not pertinent, as his task is to compare the relative risks and not absolute risks. The Tribunal is somewhat perturbed by the differentiation between a serious injury and an injury relied upon by Mr Keramidas:
20. Mr Smith was injured in December 1978. Following the accident, Mr Smith was taken to the Box Hill Hospital where he was examined and observed for several hours, and was then allowed to go home. He was able to walk from the casualty department (now called Accident Emergency Department) unassisted. The Tribunal Member, from their own personal knowledge, is aware that, in the period 1978, attendances in a casualty or Accident and Emergency Department were not considered to be admissions to hospitals: they were, in fact, visits requiring medical treatment. Neither party addressed these definitions at either Tribunal hearings; and this Tribunal only became aware of the potential importance when re‑reading Mr Keramidas' 2005 report in detail.
21. Given the Tribunal’s concerns regarding the definition of serious injury versus injury, the Tribunal has looked at the statistics for both types of injuries and has made its own calculations based on the data provided by Mr Keramidas. Having undertaken its assessment of the statistics provided by Mr Keramidas, the Tribunal agrees, without reservation, with his calculations and conclusion regarding the journey from Watsonia to East Preston via Chadstone. If both journeys commenced at 6 p.m., there was a 13½ times greater risk during the journey via Chadstone; which, when analysed in terms of serious injury and injury ratings, is an 8.75 times greater risk of a serious injury rating and a16 times greater risk of an injury rating.
22. Mr Keramidas was asked to re‑assess the journey from Chadstone to East Preston, commencing just before midnight on 6 December 1978. He calculated the overall risk at 7.6 times greater than the journey at 6 p.m. with the relative risk of a serious injury at 6 times greater and the relative risk of an injury being 8.3 times greater. Mr Keramidas re‑assessed the risk of an injury and a serious injury in light of Mr Smith's evidence before the AAT in 1996, which suggested that it was planned to take an alternative route to East Preston to that on which the original 1995 calculations were based. This has not resulted in any risk reduction. Mr Keramidas also analysed the number of serious injury accidents as opposed to the number of injury accidents occurring at night. He found that at night over 30 per cent of accidents were serious injury accidents compared to 25 per cent in daylight or dawn/dusk. . He stated that this is an expected result because there are lower volumes of traffic experienced at night, which translates to higher speeds; and therefore, more severe collisions.
23. The Tribunal notes that on the night of the accident the weather was fine, with no rain or wind and the lighting was good. The driver of the motor vehicle and his passengers had not imbibed alcohol and were travelling through the intersection on a green signal when the collision occurred. Their motor vehicle was hit from the left by a driver with a high blood alcohol content, who drove at approximately 90 kilometres per hour through a red light, colliding with the motor vehicle in which Mr Smith was a passenger.
24. Mr Keramidas' data and analysis is extremely lengthy. But in his 2005 report he reconsidered the 1995 report and performed further analysis on the latest VicRoads' crash statistics. The Tribunal has not included all this data in its decision but appends Mr Keramidas' 2005 report to this decision.
VRB's Decision
25. The Tribunal acknowledges the decision of the VRB and merely notes that the VRB found that, on the night of 6‑7 December 1978, Mr Smith's wife drove herself and her two children home to East Preston in the only family car. Mr Smith said that this is incorrect and that his wife and children stayed overnight with his mother‑in‑law.
LEGISLATION
26. Section 9 of the Act provides that war‑caused injuries suffered by a veteran shall be taken to be a war‑caused injury if:
9(1) …
(a)…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
Section 9(5)(a), 9(5)(b) and 9(5)(c) preclude any injuries from being war‑caused where they relate to travel by a veteran from work to another site after ceasing his or her performance of duty except where certain circumstances exist and where the risk of such deviation was not substantially increased.
27. Section 70 of the Act deals in greater detail with these exceptions. Section 70(5) states:
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
…
(8) Neither paragraph (5)(b) nor (5A)(b) applies:
(a)to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a journey from the member’s place of duty in a case where the member had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the member’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b)to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used unless:
(i)the journey, or that part of the journey, was made by that route for a reason connected with the performance of the member’s duty; or
(ii)in the circumstances of the particular case, the nature of the risk of sustaining injury, or contracting disease, was not substantially changed, and the extent of that risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c)to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the member’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed and the extent of that risk was not substantially increased, by reason of the interruption.
(9) The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease:
(a)in a case where the death occurred, or the injury was suffered, or disease was contracted, by the member in circumstances described in subsection (4) or in paragraph (5)(a), (b) or (c) or in paragraph (5A)(a), (b) or (c)—if the death, or the injury or disease, as the case may be:
(i)resulted from the member’s serious default or wilful act; or
(ii)arose from a serious breach of discipline committed by the member or from an occurrence that happened while the member was committing a serious breach of discipline; or
(b)in the case of an injury suffered, or disease contracted, by the member to which paragraph (5)(d) or (5A)(d) applies:
(i)if the aggravation of the injury or disease:
(A)resulted from the member’s serious default or wilful act; or
(B)arose from a serious breach of discipline by the member; or
(ii)unless the member has rendered hazardous service or the period of defence service or peacekeeping service that contributed to the injury or disease in a material degree, or by which the injury or disease was aggravated, was 6 months or longer.
28. The relevant SoP is Instrument № 34 of 2005 concerning cervical spondylosis. Factor 6(f) is attracted; and states that "having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis". Section 120(4) requires the Tribunal to make its decision on the balance of probabilities and s 120A requires the Tribunal to take into account any existing SoPs. The Tribunal has considered both of these sections of the Act. It finds that Mr Smith suffers from severe and complicated cervical spondylosis requiring at least four cervical spinal operations and pain control by means of an intrathecal morphine reservoir pump. On an evidential basis, Mr Smith meets the requirements of s 120(4) that his well‑documented cervical spondylosis is due to a motor vehicle accident occurring while in the army in 1978.
29. When the Repatriation Commission appealed the decision of the AAT dated 21 June 1996 to the Federal Court. Sundberg J found the following errors of law as:
….
Tribunal's use of Keramidas evidence
Although Mr Keramidas’ evidence was challenged both on the ground that the route of his journey B was not the same as that travelled by the respondent and on the ground that his statistics were post-1983 statistics, the tribunal accepted and purported to act on his evidence as data which showed the extent of the relative risks. It accepted that the route via Chadstone covered more kilometres (44.5) and crossed more intersections (66) than the direct route (7 km and 12 intersections), and acknowledged that the number of intersections was significantly related to the risk of injury. The tribunal also accepted that in the first 5-year period for which figures were available there had been 513 collisions on the indirect route compared with 71 on the direct route. The following passage from its reasons shows how the tribunal used this evidence:
On closer analysis however the journey to Preston directly shows an average of 0.58 intersections per kilometre travelled (seven km and 12 intersections) whereas the journey from Watsonia to Preston via Chadstone shows an average of 0.67 intersections per kilometre travelled (44.6 km and 66 intersections) … On these figures the number of intersections per kilometre travelled was insignificantly different between both journeys. Additionally … upon the direct route to Preston, an average of 10.1 collisions per kilometre, (71 collisions and seven km) were averaged in the five years from 1983. On the journey to Preston via Chadstone 11.5 accidents per kilometre (513 collisions and 44.6 km) were averaged in the five years after 1983.…Although the average number of collisions per kilometre travelled upon the journey via Chadstone exceeds the average number of collisions per kilometre upon journey to Preston directly by 1.4, this does not amount to a substantial increase.
Although a matter of no great significance, the tribunal's arithmetic was defective in determining the average number of intersections per kilometre. To discover that number one divides the intersections by the kilometres and not the kilometres by the intersections. The averages are in fact 1.7 intersections per kilometre for the Watsonia-Preston journey and 1.47 intersections per kilometre for the Watsonia-Chadstone-Preston journey. It is likely therefore that the tribunal would still have described the difference between them as insignificant. What is however significant about the use of Mr Keramidas’ statistical evidence is that the tribunal compared the average risk per kilometre of each journey with no regard for the distances involved in each. The question posed by s 70(8)(b)(ii) is whether the nature and extent of the risk of sustaining injury was (not) substantially changed or increased by reason of the fact that the journey was made by an indirect rather than a direct route. It requires a comparison of the two journeys. One journey was 7 km long and crossed 12 intersections on which, in the statistical period, there had been 51 collisions. The other was 44.5 km long and crossed 66 intersections on which, in the statistical period, there had been 513 collisions. They were the journeys to be compared. But instead of comparing them, the tribunal simply compared the average risk per kilometre. Consequently the tribunal ignored that fact that the journey actually undertaken was over six times longer than the direct route. It thus directed itself to a task other than that required by s 70(8)(b)(ii), and as a result made an error of law.
Section 70(8)(c) — “a part of the journey”
Since the tribunal found that the interruption of the respondent's journey at Chadstone was substantial and for a reason unconnected with the performance of his duties, s 70(5)(b) could not apply to the accident unless the tribunal was satisfied that the nature of the risk of injury was not substantially changed and the extent of that risk was not substantially increased by reason of the interruption. The tribunal considered that the part of the journey made after the substantial interruption was the journey from Chadstone to the scene of the accident, and was satisfied it did not expose the respondent to a substantial change in the nature of the risk or a substantial increase in the extent of the risk. In my view the tribunal erred in treating the “part of the journey” as that part commencing after the interruption and ending at the scene of the accident. The question posed by para (c) is whether by reason of the interruption the nature of the risk of injury on the part of the journey remaining after the interruption was substantially changed and the extent of that risk was substantially increased. The paragraph seems to me to require the matter to be tested at the conclusion of the interruption and before the resumption of the journey. Thus, where an interruption resulted in most of a long uncompleted journey being made at night on a winding and badly lit road (instead of in daylight), the question is whether the interruption brought about a substantial change in the extent of the risk of injury or a substantial increase in the extent of the risk on the balance of the journey yet to be made. It is no answer to say that there was no change or increase in the risk because the accident happened a few minutes after the conclusion of the interruption when the vehicle was still in a well lit suburban street. The words “on a part of a journey made after a substantial interruption of the journey” do not require the risk to be assessed in relation to the phase of the journey made after the interruption and before the accident, that is as excluding, in the present case, the never completed part of the journey because it had not been “made”. They are directed to the time at which the accident occurred. In concentrating on the uncompleted journey the tribunal failed to ask itself the question posed by s 70(8)(c), and thereby made an error of law.
Reasons
(a) night travel
Before the tribunal the applicant submitted that the interruption caused the balance of the journey to be made late at night, when, according to Mr Keramidas, more serious collisions are likely to occur because reduced traffic causes drivers to travel at higher speeds. The tribunal recited the relevant part of Mr Keramidas’ evidence. It considered whether the nature of the risk had been affected by weather conditions, lighting and the conduct of the driver. It noted that the number of vehicles on the road at the time the accident occurred (12.15 am) would have been considerably smaller than earlier in the day or earlier in the evening “thereby not supporting the respondent's contention that the nature and extent of risk was substantially changed or increased”. But it did not deal with the submission that those reduced traffic volumes increased the risk of serious accidents and thus of serious injury. Failure by the tribunal to deal with a submission put to it may amount to an error of law, either because it constitutes a failure to comply with s 43(2) or because it brings about a miscarriage of justice by disabling this court from deciding whether the tribunal's decision was vitiated by an error of law: see Dennis Wilcox Pty Ltd v FCT (1988) 79 ALR 267 at 276–7; Kalwy v Secretary, Department of Social Security (No 2) (1993) 32 ALD 451 at 458–61. In the present case the omission did, I think, amount to an error of law. The submission was clearly put. It was firmly based on evidence the tribunal accepted. It was evidence which was supported by the very circumstances of the accident in question. It was a submission seriously advanced by the applicant. It was not devoid of merit. And it was capable at least of neutralising the use the tribunal made, adversely to the applicant, of the fact that the accident occurred at night.
(b) “journey away from a place”
The tribunal recorded a submission by the applicant, directed to the words of s70(5)(b) — “a journey … away from a place upon having ceased to perform duty” — that the respondent's journey ended when he arrived at Chadstone. But nowhere did the tribunal deal with the submission by explaining why it was unsound. Again I consider this failure constituted an error of law. The evidence before the tribunal squarely raised the question. If the journey had ceased at Chadstone, the accident would not fall within s 70(5)(b) regardless of the operation of s 70(8). The submission was seriously put. It was supported by reference to Adcock v Commonwealth (1960) 103 CLR 194 and Fillipone v Abel Drainers Pty Ltd (1969) 14 FLR 456, and was not devoid of merit.
SUBMISSIONS
30. Mr Turner, on behalf of Mr Smith, submitted that the diagnosis was clear and that factor 6(f) of the relevant SoP was satisfied. With respect to the evidence of Mr Keramidas, Mr Turner submitted that even if there was an increased risk with the first leg of the journey, from Watsonia to Chadstone, this had been completed without incident by 6 p.m. and thus the relevance of any increased risk was negated. Mr Turner also contended that, given that the first leg of the journey was uneventful and thus attracted no risk, the Tribunal should only look at the second leg of the journey during which the motor vehicle accident occurred. Mr Turner also submitted that, even though the journey was by a less direct route and longer in terms of kilometres, it was not out of the ordinary for Mr Smith to take this route; and that it was condoned by the army. Mr Turner contended that Mr Smith was, in fact, on‑call 24 hours a day, 7 days a week; and that if a vehicle was needed to be repaired, Mr Smith could be contacted, and that he could return to Watsonia himself or a car could be sent to collect him. Thus, it could not be argued that he had completed his duty when he left Watsonia at 5 p.m. on 6 December 1978.
31. The respondent relied primarily on Mr Keramidas' 1995 report, which stated that the risk of the journey from Chadstone to East Preston was increased by a factor of 6, and in his 2005 report, by a factor of 7. Ms McCulloch contended that the requirements of s 70 of the Act were not met; and that, despite the knowledge of Mrs Smith's archery training, this did not amount to approval of Mr Smith’s practice of driving home via his mother-in-law’s house by his superiors. Ms McCulloch argued that the journey ceased on arrival at Chadstone. Ms McCulloch contended that s 70(8)(a) did not apply, as the delay, as described in the Act, related to leaving the workplace, not to an interruption of the journey thereafter. Ms McCulloch also contended that one could not look at one leg of the journey: One must look at the whole trip, which had attracted an increased risk of 6 or 7.
TRIBUNAL'S DELIBERATION
32. The Tribunal determines that Mr Smith suffers from severe cervical spondylosis with ongoing pain and major disability in his day‑to‑day functions. He meets the requirements of the relevant SoP; and he would qualify for compensation under s 9 of the Act but for the requirements of s 70 of the Act. The Tribunal must rely on the expert evidence of Mr Keramidas and, in particular, his report of 7 November 2005. The Tribunal has checked the data given its concerns regarding the definition of serious injury and injury. But despite the differences in these definitions, the Tribunal has concluded that Mr Smith’s journey from Watsonia to Chadstone and then to his home in East Preston, with a delay of some 6 or 7 hours at Chadstone has resulted in a significant increase in risk. The Tribunal in its decision dated 21 June 1996 and the Federal Court in its judgment dated 16 June 1997 have addressed the concept of a substantial increase. However, the Tribunal has elected to take the common meaning of the word as defined in The Oxford English Dictionary as being of real importance, or value, or validity.
33. Mr Keramidas' analysis of the data is obviously restricted by the fact that VicRoads did not collect data prior to 1983 and has destroyed it for the period 1983 to 1987. However, the Tribunal is of the opinion that it is the relative risk that is of importance and the base data does not affect the relative risk.
34. The Tribunal has taken into account the decision of Sundberg J in Repatriation Commission v Smith and his finding that the Tribunal’s decision of 1996 was deficient in terms of establishing the risk. This has been corrected or perhaps more correctly stated as exemplified in Mr Keramidas' 2005 report. The Tribunal has also made its decision in light of the Federal Court finding that the question posed by s 70(8)(c) relates to the entire proposed journey and does not cease at the time the accident occurred. Mr Keramidas' 2005 report alludes to the increased risk of serious accidents and serious injury when traffic volumes are reduced at travel times late at night. Mr Keramidas' reported data indicates a substantial increased risk of serious injury in accidents occurring between 11 p.m. and 11.59 p.m., despite the expected reduction in motor vehicle traffic at the time. The statistics regarding this estimation are provided on page 13 of Mr Keramidas' 2005 report, which is appended to this decision.
35. The Tribunal has considered the risk relating to the journey from Chadstone to East Preston, whichever route was taken, in light of the Federal Court's directions that the risk should be assessed for the entire journey and not that portion of the journey prior to the motor vehicle accident.
36. The error of law delineated by the Federal Court related to the time of the journey, that is late on 6 December 1978 or early on 7 December 1978; and this has already been addressed by the Tribunal.
37. The Federal Court found that the Tribunal had rejected the Repatriation Commission's submission, that Mr Smith's journey ended when he arrived at Chadstone, on the basis that it was unsound, but had not explained why it was unsound.
38. In the hearing before this Tribunal, the respondent again submitted that Mr Smith's journey from his work had terminated on his arrival at his mother‑in‑law's home, at Chadstone. The Tribunal rejects this submission on the basis that Mr Smith would travel from his place of work to his mother‑in‑law's home in Chadstone, on two to three nights per week, in order to have his evening meal with his wife and children. He would then return to his army quarters in East Preston, either with or without his wife and children, in order to present himself for work in Watsonia the following morning in a fresh uniform. While this longstanding arrangement was not condoned by the army, the evidence before the Tribunal is that it occurred on a very regular basis. In addition, the applicant's evidence was that the army had taken into consideration in his postings, his wife's archery training courses and archery competition. He claimed this was evidenced by his postings at Puckapunyal, Watsonia and Frankston.
39. The Tribunal determines that there is a long-established pattern, in the period of 18 months when Mr Smith was posted to Watsonia, of him spending 2 to 3 nights per week at his mother‑in‑law's home in order to dine and see his children and his wife, following which he returned to his army quarters in East Preston. The Tribunal further determines that Mr Smith suffers from severe cervical spondylosis with continuing neurological symptoms and, in particular, continuing pain, which has necessitated the use of an intrathecal morphine pump. He is unable to pursue any form of work. On the evidence before the Tribunal, Mr Smith's cervical spondylosis has resulted from a motor vehicle accident which occurred on 7 December 1978. Mr Smith meets the requirements of factor 6(f) of the relevant SoP. However, his claim is precluded by the requirements of s 70 of the Act.
I certify that the thirty‑nine [39] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 23 November 2005
Date of Decision: 15 February 2006
Advocate for the applicant: Mr B. Turner, Returned & Services League, Victoria
Advocate for the respondent: Ms J. McCullochSolicitors for the respondent: Department of Veterans’ Affairs
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