Spriggins and Repatriation Commission
[2007] AATA 1657
•10 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1657
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1415
VETERANS' APPEALS DIVISION )
Re ANTHONY JOHN SPRIGGINS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
TribunalSenior Member M D Allen
Dr M E C Thorpe, Member
Date10 August 2007
PlaceSydney
DecisionThe decision under review is affirmed.
..................[sgd]........................
M D Allen
Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – application for review of decision revoking determination accepting liability of injuries suffered by applicant while rendering defence service – injuries arose out of and would not have occurred but for defence service – civil standard of proof - decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 subsections 68(1), 70(5), 70(5)(b), 70(7), 70(9)(a)(i), 120(4), 120(6) and 196B
Safety Rehabilitation and Compensation Act 1988
Insurance Contracts Act 1984
CASE LAW
Repatriation Commission v Smith (1987) 15 FCR 327
Roncevich v Repatriation Commission (2004-5) 222 CLR 115
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Repatriation Commission v Law (1981) 147 CLR 635
Comcare v Mather (1995) 56 FCR 456
Kennedy v Telstra Corporation (1996) 39 ALD 94
Hatzimanolis v ANI Corporation Limited (1991-2) 173 CLR 473
Coward v Military Compensation and Rehabilitation Service (2006) 153 FCR 535
Boral Resources (Queensland) Pty Ltd v Pyke (1990) 93 ALR 89
REASONS FOR DECISION
10 August 2007
Senior Member M D Allen
Dr M E C Thorpe, Member
1.At or about 0100 hours on 27 November 1993, the Applicant received severe injuries when he was struck by a motor vehicle whilst on Norfolk Island.
2.At that time, the Applicant was a member of the Royal Australian Navy and a crewmember of HMAS Tobruk. On 26 November, HMAS Tobruk anchored off Norfolk Island and crewmembers not required for duty were permitted shore leave. These crewmembers were then transported from HMAS Tobruk to Norfolk Island by Light Amphibious Recovery Vehicles (LARCs) then being carried aboard HMAS Tobruk.
3.In the Report of Proceedings for the relevant month made by the commanding officer of HMAS Tobruk to his superiors, he noted “Having completed all exercise commitments for the year Tobruk proceeded to Norfolk Island for a goodwill visit”. The Report then details the events concerning the Applicant, namely:
…
Tobruk anchored at Cascade Bay, Norfolk Island, on Friday 26. The weather remained workable throughout the visit and the assistance of the LARC 5s was invaluable in landing and recovering liberty men from the exposed landing. The ship departed Norfolk Island on Monday 29 following a very successful visit in which the healthy relationship between the RAN and Norfolk Islanders was reinforced. The only incident arising from this visit was that a member of the Ship’s company, ABMTP AL Spriggins S141039, was accidentally hit by a car. His injuries, a broken femur and facial wounds, were severe enough for him to be evacuated back to the Prince of Wales Hospital in Sydney.
…
4.Subsequently, the Applicant made a claim upon the Department of Veterans’ Affairs in respect of the injury suffered by him. Initially, the Applicant’s claims were granted and the Applicant was paid a general rate Disability Pension in respect of incapacity occasioned by his injuries. However, on 4 September 2003 a delegate of the Respondent revoked the prior determinations accepting liability under the Veterans’ Entitlements Act 1986 and directed that payments of Disability Pension cease as and from 16 September 2003. This application seeks review of that determination.
5.There is no dispute between the parties that at the relevant time the Applicant was rendering “Defence Service” as that term is defined in subsection 68(1) VEA. As the matter before us involves Defence Service, the Tribunal must decide the matter to its “reasonable satisfaction” (ss 120(4) VEA). In Repatriation Commission v Smith (1987) 15 FCR 327, the Full Court of the Federal Court equated the term “reasonable satisfaction” to the civil standard of proof, namely that of proof on the balance of probabilities.
6.Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
7.Although section 196B provides that this Tribunal can only be reasonably satisfied as to the link between the Applicant's injuries and his Defence Service, if a so-called Statement of Principles upholds the connection with service in this matter the Respondent concedes that the requisite connection has been established by reference to the relevant Statements of Principle.
8.The real issue in this matter is whether pursuant to ss 70(5) VEA, the Applicant’s injuries arose out of or were attributable to his Defence Service.
9.Another head of liability is pursuant to ss 70(7) VEA, which provides that an injury will be deemed defence caused if it was due to an accident that would not have occurred but for the Applicant’s Defence Service.
10.The Applicant’s evidence to the Tribunal was not challenged in any material particular. He stated that on the morning of 26 November, not being required for duty he availed himself of the opportunity to take leave ashore at Norfolk Island from HMAS Tobruk.
11.There was no compulsion upon the Applicant to take leave ashore, although we accept his evidence that sailors not on duty were strongly encouraged, even expected, to take shore leave. This may be understood more readily if the status of the visit was as recorded in the Report by HMAS Tobruk’s commander, namely a “goodwill visit”.
12.After going ashore, the Applicant purchased a gift for his girlfriend. He then made a telephone call to her in Australia and was by himself for most of the morning. By midday, he had met up with other sailors from HMAS Tobruk and it seems clear that he then spent the rest of his time at various establishments around Norfolk Island where alcohol was sold.
13.During the course of the evening, he had run out of money and became aware that he was affected by alcohol. His memory of events is unclear as he suffered a post-traumatic amnesia following his accident.
14.The Applicant does remember walking up a dirt road. This road then joined with a bitumen road and if he had turned right on the bitumen road, he would have been heading back towards HMAS Tobruk. He believes this is what he was doing in that he had run out of money and had no plans, clothing, or toiletries to stay on Norfolk Island overnight.
15.So far as the Applicant knew, there were boats that would have taken him back to HMAS Tobruk. This is not the case as Exhibit R4 reveals the last LARC to leave Norfolk Island to leave that evening arrived at HMAS Tobruk at 2351 hours, but the Applicant’s belief was based on prior practices when RAN vessels had been anchored offshore and not along side a wharf.
16.The Applicant was aware that the navy had hired a civilian bus which was driven by a sailor in uniform to transport sailors from the main area of Norfolk Island to where the LARCs were leaving for HMAS Tobruk. He was also aware that HMAS Tobruk had sent a uniformed shore party to Norfolk Island in order to maintain discipline.
17.There is evidence, although the Applicant has no recollection, that during the late evening, the Applicant had an altercation with members of that shore patrol. In their reports, they describe the Applicant as affected by alcohol and the statement of a crewmate ADMPT McCudden describes the Applicant as “moderately drunk”.
18.As to when the Applicant came into contact with the shore patrol is difficult to ascertain. The senior rating Leading Seaman Straatsma states that it was at 2345 hours on 26 November. His fellow patrol member Able Seaman Woller says it was at 0045 hours on 27 November. Able Seaman McCudden puts this incident at approximately 2230 hours on 26 November.
19.What is uncontroversial is that the Applicant had an altercation with the shore patrol but the patrol was content to let the Applicant be led away by Mr McCudden so as to avoid further trouble.
20.According to Able Seaman McCudden, he and the Applicant then went to another hotel but he lost contact with him after closing time. McCudden had gone to the toilet prior to leaving the hotel and upon his return, the Applicant was no longer at the hotel. The police report of the accident states that the time of the accident was 0100 am on 27 November.
21.Subsection 70(5) VEA requires that in order for an injury to be accepted as Defence Caused, it must “arise out of or be attributable to” Defence Service.
22.In Roncevich v Repatriation Commission (2004-5) 222 CLR 115, the majority (McHugh, Gummow, Callinan and Heydon JJ) at p125 referring to whether an event arises in the course of or out of an activity, referred to the judgment of Dixon J (as he then was) in Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 and stated “that the connection must be causal and not merely a temporal one”: cf Repatriation Commission v Law (1981) 147 CLR 635 and 647, 649.
23.Kirby J discussed the matter further. At 222 CLR p132 at paras 55 and 56 his Honour stated:
“Causal not merely temporal connection: Whatever the provisions for entitlements in workers’ compensation or like statutes, or other laws providing repatriation benefits, it follows from the first point that it is essential, certainly so far as the principal claim based on s 70(1)(b) and (5)(a) VEA is concerned, to focus on the causative relationship postulated between the posited “defence-caused injury” and “any Defence Service”. The need for such a causative relationship is indicated by the phrase “arose out of, or was attributable to”. As the primary judge correctly noted, that expression was explained by this court in Repatriation Commission v Law. This court accepted that the natural meaning of the words pointed to a “causal connexion rather than a temporal one”. To this extent, the words were, by 1981 when they were considered in Law, viewed as significantly narrower than the formulae then common in workers’ compensation legislation affording an alternative basis for entitlement, namely causal or temporal connection to the posited service.
The difference so established is clearly a deliberate one. The apparent disadvantages involved in the applicable phrase are offset by special provisions enlarging entitlement in certain cases and the unique provisions governing the burden and onus of proof just mentioned. The duty of the decision-maker is to attend to the precise language VEA. In respect of the principal claim of the appellant, this is the language of causal connection. That said, the causal connection postulated (as the primary judge noted) is not confined to “the sole or dominant or prominent cause of the injury; it is sufficient if it is a contributory cause or connection” (citations omitted).”
24.As Kirby J pointed out at para 57 of Roncevich (supra) the Safety, Rehabilitation and Compensation Act 1988, which also applied to the Applicant at the time of his injury, uses the phrase “arising out of or in the course of, employment”. This is a wider formulation, and cases such as Comcare v Mather (1995) 56 FCR 456 and Kennedy v Telstra Corporation (1996) 39 ALD 94, which follow on from Hatzimanolis v ANI Corporation Limited (1991-2) 173 CLR 473, can be distinguished as depending upon the concept of being within the course of employment.
25.The distinction was specifically referred to by Cowdroy J in Coward v Military Compensation and Rehabilitation Service (2006) 153 FCR 535 at 540 para 27:
“Following the above authorities, I consider that the appropriate approach is to consider the nature activity being undertaken at the time the injury is received or the disease is contracted, and the circumstances in which that activity is being undertaken. If the activity is the cause of the injury or disease, and that activity is something which is required or expected as part of the person’s duties, then clearly the employment contributes to the injury or disease: see Roncevich.”
26.There is no doubt that the Applicant was encouraged to go ashore in that vessels were provided in order to transport crew members to the island and a bus provided for transport once ashore. Also, the presence of the shore patrol evidences that precautions were taken should crewmembers act inappropriately including getting drunk and disorderly. We also accept the Applicant’s evidence that there was at the very least tacit encouragement from officers and non-commissioned officers for sailors to go ashore.
27.Whereas it was no part of the Applicant’s Defence Service to get drunk to the extent that he failed to maintain a proper care for his own safety as Kirby J pointed out in Roncevich (supra) at p133, the causal connection with the Defence Service is not confined to the sole or dominant or prominent cause of the injury; it is sufficient if it is a contributory cause or connection.
28.Roncevich (supra) also pointed out that while Defence Service is not restricted to what a serviceman or woman is ordered or required to do, there is a point where activities become a purely personal pursuit and have no causal relationship with Defence Service. We find that this was the case here.
29.On behalf of the Applicant, it was submitted that at the time of his accident, the Applicant was returning to HMAS Tobruk and thus was undertaking a service-related journey. Paragraph 70(5)(b) VEA states inter alia that an injury shall be deemed to be a Defence Caused injury if it resulted from an accident that occurred while the crew member was travelling during Defence Service otherwise and in the course of duty on a journey to a place for the purpose of performing duty.
30.We find that the Applicant was not returning to HMAS Tobruk for performing duty. Whereas he was at all times subject to naval discipline, his statement says, “We were told that we would probably be anchored off Norfolk Island for a period of about 26th 27th and 28th November 1997. I was not rostered on for duty on those days”.
31.For its part the Respondent also submitted that the Applicant was excluded from obtaining benefits under the Act because his injuries had been caused by his own serious default or wilful act (see para 70(9)(a)(i) VEA).
32.The phrase used in para 70(9)(a)(i) is serious default or wilful act (Tribunal emphasis) but in reality has the same meaning as the phrase used in workers’ compensation legislation namely “serious and wilful misconduct”. In Boral Resources (Queensland) Pty Ltd v Pyke (1990) 93 ALR 89, Thomas J said of the phrase “serious or wilful misconduct” in the Insurance Contracts Act 1984 (Cth) that the term “serious misconduct” was a classic jury question not to be overlaid with legal glosses and that there was no mystery left in the word “wilful”.
33.No doubt going ashore and drinking alcohol to a point where he was unable to take proper care for his own safety was risk-taking behaviour on the part of the Applicant but we decline to elevate it to the standard of serious or wilful misconduct.
34.The only other matter, which needs to be dealt with, is whether the Applicant can be brought within the ambit of ss 70(7), which states inter alia that incapacity shall be deemed defence caused if it arises out of an accident that would not have occurred but for the veteran having rendered Defence Service.
35.Quite obviously but for his Defence Service the Applicant would never have been on Norfolk Island at the relevant time. However, notwithstanding the apparently wide ambit of claims that might be brought within ss 70(7) VEA, the test is still one of causation rather than a temporal one.
36.The Applicant, following Hatzimanolis (supra) undoubtedly has a good claim pursuant to the SRC Act (and it would be difficult for the Military Rehabilitation and Compensation Commission to argue that it was disadvantaged in any application to extend time given the very comprehensive Department of Veterans’ Affairs files relating to the Applicant). The test pursuant to the VEA is one of causation linked to, in this case, naval duty, and the Applicant’s accident with the motor vehicle and subsequent injuries occurred in the course of his private activities.
37.The decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member.
Signed: ..........[sgd]...........
Mwela Kapapa, AssociateDate of Hearing: 20 July 2007
Date of Decision: 10 August 2007
Solicitor for the Applicant: Braye Cragg SolicitorsSolicitor for the Respondent: Department of Veterans’ Affairs, Melbourne
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