Thomson and Repatriation Commission (Veterans' entitlements)
[2018] AATA 4478
•27 November 2018
Thomson and Repatriation Commission (Veterans' entitlements) [2018] AATA 4478 (27 November 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/6130
Re:Michael Thomson
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:27 November 2018
Date of written reasons: 3 December 2018
Place:Adelaide
For the reasons given orally at the conclusion of the hearing in this matter, the Tribunal affirms the decision under review.
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Deputy President Britten-Jones
CATCHWORDS
VETERANS’ ENTITLEMENTS – Entitlement to pension – Whether injury was defence-caused – Whether injury resulted from an accident occurring whilst person was travelling during defence service other than in the course of duty for the purpose of performing a duty – Whether the accident would not have occurred but for a person rendering defence service – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Commonwealth v Wright [1956] HCA 79; 96 CLR 536
Holthouse v Repatriation Commission (1982) 1 RPD 287
Jamieson v the Repatriation Commission [1984] 2 FCR 311
Maynard and Repatriation Commission [1996] AATA 836
Repatriation Commission and Hopper [1988] AATA 35
Roncevich v Repatriation Commission [2005] 222 CLR 115REASONS FOR DECISION
Deputy President Britten-Jones
3 December 2018
At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Epiq. Some minor amendments and additions have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reasons for the Tribunal’s decision.
I certify that the following thirty six (36) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
4.
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Administrative Assistant Legal
Dated: 3 December 2018
Date(s) of hearing: 26 and 27 November 2018 Advocate for the Applicant: Mr L Karp Solicitors for the Applicant: Legal Aid New South Wales Advocate for the Respondent: Mr B O’Brien Solicitors for the Respondent: Moray & Agnew Solicitors ORAL DECISION OF DEPUTY PRESIDENT BRITTEN-JONES
DEPUTY PRESIDENT: The applicant, Mr Thomson, served in the RAAF from 17 July to 2 April 1998, and it is accepted that his period of defence service, as defined in section 68(1) of the Veterans’ Entitlements Act 1986, which I will refer to as the Act, was 17 July 1986 to 6 April 1994. The applicant was involved in a serious motor vehicle accident on the night of 30 December 1993 that left him with relevantly a fractured left thumb, a fracture of his L4 vertebrae, and a degenerative disease of the lumbar spine, also known as lumbar spondylosis.
The claim history is as follows. On 29 April 2014, the applicant made a claim for a pension. On 28 October 2014, a delegate of the repatriation commission accepted part of the claim with effect from 29 January 2014, but refused the claim for the balance of conditions, and decided that no pension was payable at that time. On 24 July 2015, the applicant applied to the Veterans’ Review Board for review of the decision to reject various conditions. On 2 September 2016, the Veterans’ Review Board affirmed the decision of the delegate.
On 14 November 2016, the applicant applied to the Administrative Appeal Tribunal for review of the decision of the Repatriation Commission that was affirmed by the Veterans’ Review Board.
There is not any real dispute as to the material facts which are as follows. Mr Thomson’s record of leave entitlement, which is exhibit 12, states that he was on leave from 18 December 1993 to 9 January 1994. He had been posted to the RAAF base in Wagga in mid-1993 to undertake a 12 month aircraft structural fitter course.
In the applicant’s statement of 2 March 2014 he said that during his annual leave over Christmas 1993, he visited his family in Newcastle. He decided to return to Wagga early, and to travel at night on 30 December 1993 because it was cooler, and his car did not have air conditioning. He said that he left around the middle of the night and expected to arrive in Wagga at about 8 or 9 the next morning. He had planned to have a sleep and then celebrate the New Year with his friends. The accident occurred shortly after he left to return to Wagga.
In the applicant’s statement of 4 February 2016, he said that a few weeks after his transfer to Wagga that he was joined by his wife, and that they were granted married quarters on the outskirts of the city of Wagga. The marriage did not last and the applicant’s wife left in September or October 1993, and returned to Newcastle, taking a few of her belongings. The applicant promised to return them to her when time would allow.
In the applicant’s statement dated 16 March 2017, the applicant said as follows:
I originally approached Bruce Relph, and mentioned the change in my domestic situation to him. Mr Relph was an army clerk who had commenced the ASTFITT course with me. I asked Mr Relph his advice as he was a clerk and was familiar with policy regarding entitlements to married quarters. In accordance with the Defence Policy at the time, I was no longer entitled to my married quarter. I then approached my course instructors, who were my immediate superiors at the time, and informed them of my situation. Mr Relph was also a party to this conversation. It was at the advice of my instructors that as the end of year break was not too far away, that I do not approach Defence Housing until the New Year when we returned to continue the course. This would allow me to continue with the course with minimum disruption, and give me time to vacate and clean my married quarter for handover in the New Year.
Mr Relph provided the tribunal with a statutory declaration which was accepted into evidence. He was not required to attend for cross-examination. In his statutory declaration he confirmed the relevant events that had been set out by the applicant, and said, relevantly:
I informed Michael that he would no longer have an entitlement to his married quarter, which he confirmed in a phone conversation to Defence Housing in Wagga. I suggested that we speak to our immediate superior and course instructor, Sergeant Stowe. I was present during Michael’s conversation with Sergeant Stowe. Michael informed Sergeant Stowe of the change in his domestic situation and that he would need to vacate his married quarter and return some personal belongings to his wife in Newcastle.
Sergeant Stowe told Michael that due to the workload and the course being time-intensive this would be a significant distraction to his training whilst on course, and also affect the time he would need to study and prepare for exams. Sergeant Stowe informed Michael that the base would soon be on shut-down for the Christmas/New Year break, and that he should wait until then to vacate and clean his married quarter and return his wife’s belongings.
The applicant did take the opportunity to return his wife’s belongings to her in Newcastle during the end of year break in December 1993. He also visited his immediate family before driving back to Wagga. As it was an extremely hot summer he decided to travel at night because his car was not air-conditioned and there was less holiday traffic. It was during that drive back to Wagga that the accident occurred. He was admitted to hospital with a fractured spine, a head injury and multiple lacerations.
Dr Harrington, an orthopaedic surgeon, examined the applicant and provided a report dated 4 July 2017. He was not cross-examined and there was no dispute with his findings that the applicant suffers from a fractured thumb and a fractured L4 vertebrae (the clinical onset of which occurred at the time of the accident) and lumbar spondylosis (the clinical onset of which arose later).
The relevant statutory provisions within the Act are ss 70(1), 70(5)(b) and 70(7). They provide for the eligibility for a pension under the Act.
Section 70(1) says, relevantly, that where a member of the Forces is incapacitated from a defence-caused injury, the Commonwealth is liable to pay - in the case of the incapacity of the member - a pension by way of compensation to the member, in accordance with this Act.
Section 70(5)(b) provides, relevantly, that an injury suffered by a member shall be taken to be a defence-caused injury if the injury resulted from an accident that occurred whilst the member was travelling during any Defence service, but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty.
Section 70(7) says, relevantly, that where the incapacity of a member of the Forces was due to an accident that would not have occurred but for his or her having rendered Defence service - if the incapacity of the member was due to an accident - that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident, and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member.
Section 120(4) applies to this determination, and requires me to decide the matter to my reasonable satisfaction. Section 120B(3) says, relevantly, that:
In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person … was defence-caused only if:
a)the material before the Commission raises a connection between the injury … of the person and some particular service rendered by the person; and
b)there is in force …a Statement of Principles… that upholds the contention that the injury… of the person is, on the balance of probabilities, connected with that service.
The applicant relies upon the Statement of Principles concerning fracture, which is number 95 of 2015 and, in particular, s 9(1), being one of the factors that must exist before it can be said that on the balance of probabilities the fracture is connected with the circumstances of a person’s relevant service. Section 9(1) refers to having physical trauma to the affected bone at the time of the clinical onset of fracture, and there is no dispute in respect of that.
The applicant also relies upon the Statement of Principles concerning lumbar spondylosis which is number 63 of 2014, at s 6(g), which refers to factors that must exist before it can be said that on the balance of probabilities lumbar spondylosis is connected with the circumstances of a person’s relevant service. Section 6(g) refers to having trauma to the lumbar spine, at least one year before the clinical onset of lumbar spondylosis, where the trauma to the lumbar spine occurred within the 25 years before the clinical onset of lumbar spondylosis. There is no issue with respect to that matter.
The applicant relies on the deeming provision in s 70(5)(b) of the Act to contend that the applicant has suffered a defence-caused injury, and is entitled to a pension. He relies on the High Court authority of Roncevich v Repatriation Commission (2005) 222 CLR 115, which describes the provisions of the Act as obviously beneficial. That is not controversial. That case considered s 70(5)(a), which applies to an injury which arose out of or was attributable to any Defence service.
The applicant relies on s 70(5)(b), which requires focus on whether the applicant injured himself travelling “on a journey to a place for the purpose of performing duty”. The other elements of s 70(5)(b) are not in dispute, namely, first, that there was an injury; second, that the injury resulted from an accident; and thirdly, that it occurred during the applicant’s Defence service but not in the course of duty.
The applicant contends that he satisfies s 70(5)(b) because he was injured whilst travelling to Wagga, and that the purpose of the journey back to Wagga was for him firstly, to clean out and vacate his married quarters situated on the outskirts of Wagga, and secondly, to attend his course recommencing at the base in Wagga on 10 January 1994.
It is not enough for the applicant to show that he was on a journey to the town in which his course was being carried out. The purpose for the journey must be established, and that purpose must be to perform a duty.
If the journey was for a personal purpose, and was not related to the performance of his duties, then the deeming provision will not be satisfied. To satisfy s 70(5)(b) it is not relevant to ask if the injury arose solely out of his Defence service. The focus is on “the purpose of performing duty”. I was referred to various authorities, some of which refer to the situation where the journey was undertaken for personal reasons, and for that reason provided that no compensation should be payable. The legislation considered by these authorities is similar but not precisely the same as in this case.
In Commonwealth v Wright [1956] HCA 79; 96 CLR 536, the High Court held that for liability to arise from an accident involving a member of the armed forces travelling back to camp, the member must have been travelling back to camp to take up the duties of employment, and not merely returning to the camp as a place of domicile. Webb J at page 551 said in Commonwealth v Wright:
To support a claim for compensation the accident to a civilian employee must have arisen out of or in the course of his employment, or when travelling to or from his employment, that is to say, to or from a state of activity called “employment”, as distinct from the place where that activity takes place. …the accident to a soldier must have arisen out of or in the course of his service, which would include travelling on that service to or from a military camp, and when going on leave from the camp or returning to the camp on the expiration of leave; but not otherwise for personal reasons.
At page 552 of Commonwealth v Wright, Fullagar J stated:
… there must be a real connection between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him, or to absent himself temporarily from those duties.
In Jamieson v the Repatriation Commission (1984) 2 FCR 311, Fitzgerald J said at 317:
…an employee (or a member of the services) who resides at the place where he is employed will not be travelling to his place of employment if he left it for private purposes, is not returning from a period of even temporary residence elsewhere, and his immediate purpose for returning is that the place to which he is travelling is the place at which he resides.
These cases have been referred to in various tribunal decisions dealing with similar factual scenarios to those that arise in this case, and I refer only to Maynard and Repatriation Commission [1996] AATA 836 (2 October 1996) and Repatriation Commission and Hopper [1988] AATA 35 (27 January 1988).
I consider that to satisfy the requirements of s 70(5)(b) there must be a real connection between the purpose of the journey and the performance of a defence duty to be carried out by the applicant.
It is not in dispute that the applicant had a duty to attend the RAAF base in Wagga to recommence his course on 10 January 1994. However, the applicant also says he had a duty to clean out and vacate his quarters. I do not consider that to be the performance of a duty in the sense of its meaning in s 70(5)(b). The word “duty” appears three times in s 70(5)(b) and should be given a consistent meaning. It is apparent from the phrase “during any defence service … but otherwise than in the course of duty” that not all activities undertaken during defence service will be the performance of a duty. The conduct of vacating his quarters may have been related to his defence service but not with the performance of a duty. The applicant was on leave and was not returning to duty until his course recommenced. His activities whilst on leave with respect to vacating the marital quarters do not amount to the performance of a duty.
The discussion with his superiors does not elevate these activities to the performance of a duty.
If I am wrong about the meaning of duty, then I do not consider that the applicant was travelling to his quarters for the purpose of performing that duty. He was returning from dropping off his wife’s possessions in Newcastle. His purpose was simply to return from that journey to Newcastle. At that time the applicant was still living in his quarters situated on the outskirts of Wagga. He remained there until after he gave notice to Defence Housing that he would be vacating because he was no longer entitled to the premises following the break-up with his wife. He was simply returning from a personal trip which was unrelated to his duties.
With respect to the duty to recommence his course, the applicant was not driving back from Newcastle for that purpose. He did not have to be back for a further 10 or so days. He was not driving to the base, so as to arrive for the recommencement of his course. He was driving to what was then his home, and many days before his course recommenced. The journey was not to a place for the purpose of performing duty. The journey was for the purpose of returning home. Consequently, I am not satisfied of the elements in s 70(5)(b).
Next I consider s 70(5)(c) as to whether the injury is deemed by sub-s (7) to be a defence-caused injury. The meaning of “but-for” in similar legislation was considered in Holthouse v Repatriation Commission (1982) 1 RPD 287 by Davies J, who said at 288 that the similar provision:
… does not, in my view, abrogate the ordinary principles of causality or dispense with the requirement that the defence service be a contributing cause of the incapacity or death. Although the effect of the provision is to extend s 107M(1), it extends that provision by doing away with some of the past concepts which, if applied, would unduly limit the operation of that principal provision.
I find that the applicant’s injury was not a defence-caused injury on the application of ordinary principles of causation. The accident did not occur whilst the applicant was on duty, nor was there any real connection between the accident and the performance of any of his duties. The accident occurred when he was returning from a journey made for personal reasons whilst on leave.
The return of his wife’s belongings was a private matter between the applicant and his wife. It was a matter separate to any requirement or expectation that he vacate the premises. There was no material connection between his defence service and the delivery of his wife’s belongings to her in Newcastle and the return journey. There was no requirement or expectation arising from his defence service that he make the trip to and from Newcastle.
The applicant’s condition was not caused by his defence service.
The decision of the tribunal is to affirm the decision under review.
END OF ORAL DECISION
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