Turner-Dauncey and Military Rehabilitation and Compensation Commission (Compensation)

[2016] AATA 551

Turner-Dauncey and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 551 (29 July 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/3671
Re	Martin Turner-Dauncey
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Bernard McCabe
Date	29 July 2016
Place	Brisbane

The decision under review is affirmed.

..........................[sgd].........................

Deputy President Bernard McCabe

Catchwords

VETERANS’ AFFAIRS – compensation – whether applicant’s surfing injury arose out of or in the course of employment – where physical activity encouraged by RAN – whether applicant’s injury was an unintended consequence of treatment provided – decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 6A(2), 14

Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 27

Cases

Hatzimanolisv ANI Corporation Ltd (1992) 173 CLR 246

Comare v PVYW (2013) 250 CLR 246

Secondary Materials

Defence Instructions (General) PERS 14-2 amendment 25 dated 24 September 1983

REASONS FOR DECISION

Deputy President Bernard McCabe

29 July 2016

1. Martin Turner-Dauncey, the applicant, suffered an injury to two of his front teeth while surfing on Bondi Beach in November 1983. Mr Turner-Dauncey was hit in the mouth by a stray surfboard. The applicant required emergency dental treatment to stabilise two displaced front teeth. At the time, Mr Turner-Dauncey was on weekend leave from his posting at HMAS Nirimba: exhibit 1 p 110.

2. The applicant lodged a claim with the Department of Veterans’ Affairs for compensation: exhibit 1 p 92. He says the injury arose out of his employment because he was undertaking a sporting activity, and at the time the Royal Australian Navy (RAN) was encouraging participation in physical activity as an alternative to the RAN’s infamous drinking culture.

3. The applicant also suggested the treatment he received on his return to HMAS Nirimba, following the initial treatment at the hands of a private dentist, was inadequate. He says he was not told by any of the military dentists he subsequently visited that there would be ongoing problems related to his surfing injury and at each dental-check he was provided a clean bill of health: exhibit 1 p 113. He says that caused a subsequent injury because he was not made aware of any underlying deterioration or the risk of future infection until after his discharge.

4. The Military Rehabilitation and Compensation Commission refused compensation for Mr Turner-Dauncey’s injury because it was not satisfied the injury arose out of, or in the course of, his military service. Its reviewable decision to that effect is dated 30 June 2015.

5. The applicant has asked the Tribunal to revisit the question of liability. As it happens, I am satisfied the reviewable decision is correct, and must be affirmed. I explain my reasons below.

6. Mr Turner-Dauncey raised two contentions. The first is whether the injury which occurred on Bondi Beach arose out of, or in the course of, his employment. The second contention relates to the medical treatment he was provided once he returned to his post on the Nirimba. I will deal with those contentions separately.

   Did Mr Turner-Dauncey’s injury arise out of, or in connection with, his military service?

7. The Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) was not in force at the time Mr Turner-Dauncey’s injury occurred. The grandfathering provisions in the SRC Act require that I apply the test contained in the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). Conveniently, the test for liability in s 27 of the 1971 Act is essentially the same as that found in s 14 of the SRC Act.

8. Section 14 of the SRC Act requires the decision-maker, or the Tribunal on review, to be satisfied the injury in question “arose out of, or in the course of, the employee's employment”. That is an inquiry of causality. I must be satisfied Mr Turner-Dauncey’s injury is causally linked to his employment.

9. Mr Turner-Dauncey says that link is established by cultural and other factors in the RAN that promoted physical fitness and exercise. Junior sailors were made aware of the importance of physical activity and participation in sport was encouraged. Mr Turner-Dauncey supported his argument at the hearing by referring to an extract from the “Navy News” which highlighted participation in sporting activities, and he noted the RAN entered teams in surf carnivals. He says his superiors encouraged a range of fitness activities and the distinction between accredited or authorised sports and non-accredited or not-authorised sports was not made clear. He says junior sailors were often not well informed about official policy and he received sporadic information mainly through Divisional Officers or daily orders, but, in general, fitness activities had the backing of the RAN.

10. The respondent urged me to have regard to the Defence Instructions (General) PERS 14-2 amendment 25 dated 24 September 1983 (the Defence Force policy). That is the Defence Force’s policy on sport and was in effect at the time of Mr Turner-Dauncey’s injury. The Defence Force policy encourages members of the defence force to participate in “properly planned and executed physical activity” (at [1]).

11. The fact Mr Turner-Dauncey was not on duty at work when the accident occurred is not necessarily a disentitling factor. The High Court in Hatzimanolisv ANI Corporation Ltd (1992) 173 CLR 246 found compensable injuries may occur during interludes in an overall period of work. However, this mainly applies where the employer has induced or encouraged the employee to be at the particular place or do the particular act which resulted in injury.

12. In Comare v PVYW (2013) 250 CLR 246 at [38] the plurality clarified:

    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 enquiry 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 engage in that activity? When injury occurs at and by reference to a place, 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. [Emphasis added]

13. I acknowledge Mr Turner-Dauncey’s submission that he was encouraged to engage in fitness activities generally. But the test envisages the employer encouraging an employee to engage in that activity: the activity that caused the injury. Emphasis is necessarily placed on the encouragement in question being directed at a specific activity.

14. That proposition is contemplated in the Defence Force policy itself at [7]:

    For the purpose of compensation, written authorization by a Commanding Officer… is required if a member is to be considered to be participating in a sporting activity in the course of his employment. In some circumstances … verbal authorization may be acceptable … Should injury occur during a sporting activity, compensation is not automatic … ‘Authorization’ should not be confused with ‘permission’. Members are permitted to undertake sporting/recreational activities for which no ‘course of employment’ authorization can be given. 

15. I understand surfing is now an authorised activity, but it was not at the time. There is no evidence of Mr Turner-Dauncey receiving authorisation to engage in that activity. I accept the RAN was encouraging physical activity but it did so under specific circumstances. In particular, it encouraged participation in a range of pre-authorised activities and gave commanding officers the authority to authorise additional activities that would then be covered. There is no evidence Mr Turner-Dauncey obtained prior approval to go surfing while on weekend leave, nor was surfing classified as an authorised sport at that time.

16. The RAN did not encourage or induce Mr Turner-Dauncey to go surfing that weekend. It follows his surfing injury did not arise out of, or in the course of, his employment.

    Was Mr Turner-Dauncey’s injury an unintended consequence of his treatment?

17. Mr Turner-Dauncey received ongoing dental treatment after the accident from RAN dentists. He also underwent a number of mandatory medical checks, including a dental check on discharge. At that time he was given the all-clear: exhibit 1 p 29. Two years after his discharge Mr Turner-Dauncey had tooth number 22 removed because it “was very mobile and … had gone black”: exhibit 4, email dated 26 August 2015. He had a false tooth for a number of years. He says the other affected tooth, number 21, had always been “wobbly and discoloured”, but the underlying complications were not then known.

18. In 2013 those problems became apparent. Mr Turner-Dauncey presented with severe pain to Dr Gunardis. He had an abscess and infection that had begun to disband the bone structure: exhibit 4. He underwent implant surgery on both teeth after the discovery.

19. Dr Gunardis gave evidence by telephone at the hearing. He told the Tribunal it is not uncommon for teeth to be effectively stabilised and then subsequently become destabilised by infection in the tooth or jaw bone – but the underlying infection which causes destabilisation in that instance is quite difficult to detect. He said infections of that nature are ordinarily found by detailed investigations of patients presenting with symptoms. Dr Gunardis said that type of detailed investigation would be unlikely to occur unless the patient was symptomatic. It would be unlikely that an underlying infection of that kind would be discovered in an asymptomatic-patient’s routine dental check-up. 

20. The answer to whether Mr Turner-Dauncey can succeed on this ground lies in s 6A of the SRC Act. Section 6A(2) of the SRC Act provides compensation where an injury has occurred as an unintended consequence of medical treatment received by a member of the Defence Force, even if the treatment in question occurred before the commencement of the SRC Act. Mr Turner-Dauncey received medical treatment for his surfing injury paid for by the Commonwealth and as a member of the Defence Force. The question is whether his resulting dental problems were an unintended consequence of that treatment. Sadly for the applicant, the medical evidence established the damage was done to the applicant’s teeth when he was struck by the surfboard. From that point, Dr Gunardis made clear there was always a chance the applicant’s teeth would encounter problems, and there was little that could be done. The dental treatment as the hands of RAN dentists was not the cause of Mr Turner-Dauncey’s subsequent problems. The abscess and infection were a consequence of the injury sustained in the surf, in 1983, while surfing.

21. It is possible Mr Turner-Dauncey would have avoided the abscess and infection if the treating RAN dentists commenced an investigation in search of some underlying but inconspicuous problem. But that is a mere possibility and certainly not the cause of his injury.

22. Mr Turner-Dauncey’s injury did not occur as an unintended consequence of his medical treatment, so he is unable to recover compensation.

23. The decision under review must be affirmed.

24.     I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

....................[sgd]...........................

Associate

Dated 29 July 2016

Date of hearing

13 April 2016

Applicant

In person

Counsel for the Respondent

Solicitor for the Respondent

Mr  J Streit

Australian Government Solicitor