WILLIAM TROY KENNEDY ApplicantAndMILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent
[2007] AATA 19
•15 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 19
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/54
VETERANS' APPEALS DIVISION ) W2005/297, 298W2006/21
Re WILLIAM TROY KENNEDY Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate15 January 2007
PlacePerth
Decision Pursuant to ss 42C(3) and 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decisions dated 21 December 2001 (Application No W2002/54), 21 July 2005 (Application No W2005/297), 21 July 2005 (Application No W2005/298), and 27 January 2006 (Application No W2006/21), and, in substitution therefor, decides as follows:
(a) for the whole of the period from 27 January 2001 to 28 July 2005 (“the relevant period”) the applicant was entitled, pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), to receive compensation, by way of incapacity payments, in the amount determined in accordance with s 19;
(b) for the whole of the relevant period the applicant received compensation pursuant to s 19 of the SRC Act, and, subject to paragraph (c) below, the respondent is not liable to pay to the applicant, in respect of the relevant period, any further compensation pursuant to s 19 in addition to the abovementioned compensation which it has previously paid to him pursuant to s 19;
(c) for the whole of the relevant period the applicant’s “normal weekly earnings” (for the purposes of s 19 of the SRC Act) included Special Action Force Allowance (“SAFA”), and the applicant is entitled to receive, and the respondent is liable to pay to the applicant, such further compensation as is payable to him in accordance with s 19 on the basis that his “normal weekly earnings”, for the purposes of s 19, included SAFA for the whole of the relevant period:
(d) from 29 July 2005 to the present date, and as at the present date, the applicant has been, and is presently, incapacitated for work, and has been, and is presently, not able to earn any amount in “suitable employment”, for the purposes of s 19 of the SRC Act, as a result of the following compensable “injuries” (within the meaning of the SRC Act) in combination, namely:
(i) left ankle inversion sprain;
(ii) right ankle inversion sprain;
(iii) patello-femoral pain left knee;
(iv) grade one medial collateral ligament strain right knee;
(v) soft tissue muscular low back pain; and
(vi) post traumatic stress disorder, in partial remission and adjustment disorder/disturbance with mixed symptoms of anxiety and depression (chronic) in partial remission, mild with residual symptoms;
(e) from 29 July 2005 to the present date, and as at the present date, the respondent is liable to pay to the applicant compensation, by way of incapacity payments, in accordance with s 19 of the SRC Act on the basis that the applicant’s “normal weekly earnings”, for the purposes of s 19, included, and includes, SAFA.
The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the respondent pay the applicant’s reasonable legal costs and disbursements in respect of these proceedings, the amount of such costs and disbursements to be agreed, or to be taxed if not agreed.
...[Sgd S D Hotop].........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – incapacity payments – normal weekly earnings – applicant served in Australian Regular Army from July 1984 to July 1992 – applicant posted to Special Air Service Regiment (SASR) in June 1987 – applicant received Special Action Force Allowance (SAFA) while posted to SASR – applicant suffered injuries in course of service – applicant voluntarily discharged from service because of medical unfitness in July 1992 – applicant would have continued to be posted to SASR if continued to serve in Army – applicant would have continued to receive SAFA if continued to serve in Army – SAFA included in applicant’s normal weekly earnings – applicant entitled to ongoing incapacity payments on that basis – decisions under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5, s 8(1), s 8(10) and s 19
Bortolazzo v Comcare (1997) 75 FCR 385
Re Richards and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (unreported, AAT Application No A1992/123, 26 May 1993)
Re Spurr and Comcare (1999) 28 AAR 424
REASONS FOR DECISION
15 January 2007 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. William Troy Kennedy (“the applicant”) served in the Australian Army from 3 July 1984 until 27 July 1992 when he was voluntarily discharged. During his period of service he became a serving member of the Special Air Service Regiment (“SASR”) on 6 June 1987 and, in that capacity, he received an allowance known as Special Action Force Allowance (“SAFA”) in addition to his standard Army pay.
2. The applicant suffered various injuries in the course of, or arising out of, his Army service, and the respondent (or its predecessor) accepted liability to pay compensation, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), to the applicant in respect of those injuries.
3. In 2001, 2005 and 2006 the respondent made 4 decisions regarding the rate of compensation, by way of incapacity payments, that was payable to the applicant, and the applicant subsequently applied to the Tribunal for review of those decisions. The applicant and the respondent have, however, since reached agreement on all but one of the matters that were previously in dispute.
4. The only matter which remains in dispute is whether SAFA should continue (beyond 5 June 2001) to be included in the applicant’s “normal weekly earnings” for the purpose of determining the amount of compensation, by way of incapacity payments, which is payable to the applicant in accordance with s 19 of the SRC Act. It is this matter that the Tribunal is required to determine in these proceedings.
The Factual Background
5. The essential background facts are not in dispute and are as follows.
6. The applicant, who was born on 28 March 1965, enlisted in the Australian Regular Army on 3 July 1984 and he was a serving member of the SASR from 6 June 1987.
7. Following a Medical Board examination which found that the applicant was medically unfit, the applicant was voluntarily discharged from the Army on 27 July 1992. He remained posted to the SASR to the time of his discharge.
8. In 1992 the applicant claimed compensation under the SRC Act and a predecessor of the respondent subsequently accepted liability under that Act to pay compensation to the applicant in respect of the following “injuries” (within the meaning of that Act):
·left ankle inversion sprain (sustained on 1 December 1984);
·right ankle inversion sprain (sustained on 1 December 1984);
·patello-femoral pain, left knee (sustained on 7 June 1988);
·grade 1 medial collateral ligament strain, right knee (sustained on 7 June 1988);
·soft tissue muscular low back pain (sustained on 19 May 1989);
·teeth – severe occlusal wear (sustained on 21 October 1991).
9. On 7 November 2003 the applicant claimed compensation under the SRC Act for an illness described as “anxiety disorder due to a medical condition”, and on 6 October 2005 the respondent accepted liability under that Act to pay compensation to the applicant in respect of an injury described as: “post traumatic stress disorder, in partial remission and adjustment disorder/ disturbance with mixed symptoms of anxiety and depression (chronic) in partial remission, mild with residual symptoms”.
10. On 12 September 2000 a delegate of the respondent made a determination in relation to the applicant’s entitlement to compensation, by way of incapacity payments, in accordance with s 19 of the SRC Act, in the following terms:
“I determine that, during periods of incapacity since your discharge from the Army on 27 July 1992, you are entitled to receive SAFA Qualification and Skill Allowance as part of your fortnightly payments. I further determine that you are entitled to receive SAFA Disability Allowance as part of your fortnightly entitlement for those periods of incapacity. I determine that you are entitled to receive both these allowances for periods of incapacity that fall within a 14 year period from the time you first commenced employment in the Special Air Service Regiment, i.e. until 5 June 2001.”
11. On 1 February 2001 a delegate of the respondent made a determination that, for the period from 27 January 2001 to 4 June 2001, the rate of incapacity payments to which the applicant was entitled in accordance with s 19 of the SRC Act was reduced to $283.08 (gross) per week on the basis that he was able to earn the amount of $891.10 per week (at the rate of $23.45 per hour for a 38 hour week) in suitable employment.
12. Following a request by the applicant for a reconsideration of the determinations of 12 September 2000 and 1 February 2001, a delegate of the respondent made a “reviewable decision” on 21 December 2001 whereby:
· the determination of 12 September 2000 was affirmed; and
· the determination of 1 February 2001 was varied by reducing the amount that the applicant was able to earn in suitable employment from $891.10 per week to $779.00 (at the rate of $20.50 per hour for a 38 hour week), and thereby increasing the rate of incapacity payments to which the applicant was entitled in accordance with s 19 of the SRC Act from $283.08 (gross) per week to $420.80 (gross) per week, for the period from 27 January 2001 to 28 February 2001, and to $436.22 (gross) per week for the period from 1 March 2001 to 4 June 2001.
13. On 17 February 2002 the applicant lodged with the Tribunal an application for review of the reviewable decision of 21 December 2001 (Application No W2002/54).
14. On 6 June 2003 the applicant requested the respondent to make a determination whether, having regard to all of his (then) compensable injuries, he was fit for full-time employment. On 9 June 2003 he requested that the respondent determine that he was entitled to incapacity payments for the period 6-9 June 2003.
15. On 13 June 2003 a delegate of the respondent made a determination that the applicant was fit for full-time suitable employment, and that he was not entitled to incapacity payments for the period 6-9 June 2003.
16. On 6 August 2003 the applicant informed the respondent that he was only capable of working a 3-day week and that he wished to claim incapacity payments from 21 May 2003.
17. On 18 August 2003 a delegate of the respondent made a determination that the applicant was fit for full-time suitable employment from 21 May 2003 and ongoing.
18. By letter dated 13 June 2005 the applicant’s solicitors requested a reconsideration by the respondent of the determinations of 13 June 2003 and 18 August 2003.
19. On 21 July 2005 a delegate of the respondent made a “reviewable decision” whereby the determination of 13 June 2003 was affirmed.
20. On 21 July 2005 the delegate also made a “reviewable decision” whereby the determination of 18 August 2003 was affirmed.
21. On 24 August 2005 the applicant’s solicitors lodged with the Tribunal an application for review of the reviewable decision of 21 July 2005 which affirmed the determination of 13 June 2003 (Application No W2005/297).
22. On 24 August 2005 the applicant’s solicitors also lodged with the Tribunal an application for review of the reviewable decision of 21 July 2005 which affirmed the determination of 18 August 2003 (Application No W2005/298).
23. By letter dated 25 October 2005 to the respondent’s solicitors, the applicant’s solicitors made “a formal claim for incapacity payments” on the basis of the applicant’s psychiatric injury (in respect of which liability to pay compensation to the applicant had been accepted by the respondent on 6 October 2005 – see paragraph 9 above).
24. On 28 November 2005 a delegate of the respondent made a determination that the applicant was not entitled to incapacity payments in accordance with s 19 of the SRC Act in respect of his psychiatric injury.
25. Following a request by the applicant’s solicitors to the respondent for a reconsideration of the determination of 28 November 2005, a delegate of the respondent made a “reviewable decision” on 27 January 2006 whereby that determination was affirmed.
26. On 6 February 2006 the applicant’s solicitors lodged with the Tribunal an application for review of the reviewable decision of 27 January 2006 (Application No W2006/21).
27. On 13 November 2006 an Agreement pursuant to s 42C(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), signed by the applicant’s solicitors and by the respondent’s solicitors, was lodged with the Tribunal. The terms of that Agreement are as follows:
“…
THE PARTIES agree and respectfully request that the Tribunal make decisions as follows:
1 That the reviewable decisions:
(i)dated 21 December 2001, insofar as the Decision of 21 December 2001 determines the Applicant’s ability to earn, (in W2002/54);
(ii) 21 July 2005 (two decisions in W2005/297 and W2005/298); and
(iii) 27 January 2006 (in W2006/21),
be set aside and that the following decisions be made in substitution:
1.1That for the entire period 27 January 2001 to 28 July 2005 (‘the Period’) the Applicant was entitled to receive compensation for incapacity equivalent to his normal weekly earnings (‘NWE’) less able to earn amounts, which compensation he has received under s 19 of the Act in the Period (excluding the issue as to the Applicant’s claim to SAFA Qualification and Skills Allowance and the SAFA Disability Allowance (‘SAFA’) as the Applicant’s claim to SAFA is yet to be decided by the Tribunal as part of the hearing of Application in W2002/54), and subject to any entitlement that the Applicant may have to SAFA, the Respondent is not liable to pay to the Applicant any further compensation pursuant to s 19 of the Act beyond compensation already paid pursuant to s 19.
1.2That from 29 July 2005 the Applicant has been incapacitated for employment, and not able to engage in suitable employment, as a result of the following compensable injuries acting in combination namely:
(a) Left ankle inversion sprain;
(b) Right ankle inversion sprain;
(c) Patello-femoral pain left knee;
(d) Grade one medial collateral ligament strain right knee;
(e) Soft tissue muscular low back pain; and
(f)Post traumatic stress disorder, in partial remission and adjustment disorder/disturbance with mixed symptoms of anxiety and depression (chronic) in partial remission, mild with residual symptoms.
1.3That from 29 July 2005 the Respondent is liable to pay to the Applicant compensation for incapacity pursuant to s 19 of the Act based on the Applicant’s NWE from 29 July 2005 (provided that SAFA subject to any decision of the Tribunal to the contrary is not part of NWE).
2The Respondent pay the Applicant’s reasonable legal costs and disbursements under section 67(8) of the SRC Act to be agreed or taxed in respect of, Application W2002/54 excluding legal costs and disbursements incurred by the Applicant in respect of the Applicant’s claim to SAFA (subject to any decision of the Tribunal to the contrary), and in respect of Applications W2005/297, W2005/298 and W2006/21.”
28. Pursuant to s 42C(3) of the AAT Act, the Tribunal will, in its decision in these proceedings, give effect to the terms of the abovementioned Agreement without having dealt at the hearing with those parts of the proceedings to which the Agreement relates.
29. Accordingly, the Tribunal will henceforth in these reasons deal only with that part of the proceedings which is not included in the terms of the abovementioned Agreement, namely, the issue whether SAFA (comprising Qualification and Skill Allowance and Disability Allowance) should continue (beyond 5 June 2001) to be included as part of the applicant’s “normal weekly earnings” for the purpose of determining the amount of incapacity payments which are payable to the applicant in accordance with s 19 of the SRC Act.
The Relevant Statutory Provisions
30. Section 19 of the SRC Act provides for the payment of compensation to an employee who is incapacitated for work as a result of an injury, and prescribes formulae for determining the amount of compensation that is payable to the employee each week during which the employee is incapacitated (incapacity payments). Those formulae contain, inter alia, the following elements:
“NWE” – “the amount of the employee’s normal weekly earnings”;
“AE” – “the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.”
In s 4(1) of the SRC Act the phrase “normal weekly earnings” is defined to mean:
“the normal weekly earnings of an employee calculated under section 8.”
Section 8 of the SRC Act relevantly provides:
“8 Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee's average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
…
(10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a) where the employee continues to be employed by the Commonwealth or a licensed corporation--the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b) where the employee has ceased to be employed by the Commonwealth or a licensed corporation--whichever is the greater of the following amounts:
(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.”
In s 5(1) of the SRC Act the word “employee” is defined to mean, among others, “a person who is employed by the Commonwealth”, and, by s 5(2)(b):
“a member of the Defence Force… shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person's employment shall, for those purposes, be taken to be constituted… by the person's performance of duties as such a member of the Defence Force…”
Section 5(9) of the SRC Act provides:
“A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare… has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.”
The Evidence
31. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T230, pp 1-390) lodged by the respondent in Application No W2002/54 in accordance with s 37 of the AAT Act;
·Exhibits A1-A4 tendered in evidence by the applicant, and Exhibits R1-R6 tendered in evidence by the respondent;
·the oral evidence of the applicant, Lt Col David Lewis (Rtd), and Col Peter Langford (Rtd).
The applicant’s evidence
32. The applicant confirmed that he had read 2 statements of his evidence prepared by his solicitors for the purpose of these proceedings, dated 27 May 2005 and 20 June 2006, and that the contents of those statements are true. Those statements were tendered in evidence (Exhibits A2 and A3).
33. The contents of the applicant’s statement of 27 May 2005 (Exhibit A2), which are relevant to the matter in issue, are as follows:
“…
3. At 19 I joined the Army. At that stage I had a positive bank account and I was earning $750.00 per fortnight in the hand working in the railways. I joined the Army for a career path. I signed up initially for six years. I could have signed up for three years. My intention was to never leave the Army service.
…
5. I joined the Army because I was told that Australia went to war on average every 25 years. I was also told about the SASR (Special Air Services (sic) Regiment) by an ex-Vietnam veteran and I decided if I was going to war then I would go as an SASR soldier.
…
79. I elected discharge from the Army. At this medical board I was made medically unfit for duty. None of my injuries were present when I joined the Army at the age of 19. On discharge I received no security debrief. I felt very much down because of the treatment I received prior to discharge. I was given no advice freely only (sic). I elected discharge because I could see no viable future for me in the SASR. As a result of my injuries I felt broken down and unable to properly complete service.
…
84. If it were not for the fact that I had to discharge for medical reasons, I would have remained in the SASR. I know of my own knowledge that soldiers remain in the SASR sometime for the length of their service. There is no rule that I have been made aware of either whilst I was in service or afterwards that indicated that soldiers would only serve 14 years in the SASR.
85. My clear intention at the time that I commenced serving in the SASR was to remain in that service because I believed I was doing a good service for the country although it was difficult and dangerous work. Despite all of the matters above set out I actually really enjoyed the work whilst I was in [the] regiment and doing the work and but for my injuries, I would have continued in the SASR. There is no way I would have left the SASR voluntarily and the Army had no reason to discharge me from the SASR other than from physical unfitness.
…
88. I say that during the time of my service with the SASR I was not given any cause to think that I was likely to be required to leave the SASR.
89. I certainly would not have left the SASR voluntarily if I was not maintained in at least the same level of pay as I was receiving during my time of service with the SASR (sic).
…
97. I never did sit a promotion exam whilst in the SASR. I had no desire to be promoted to any level other than that of Trooper. I enjoyed the work of Trooper and but for my injuries, in my view, would still be a Trooper in the SASR today. There was only one occasion when I did not pass a particular exam and that was a Marksman’s Course which I was not giving my best effort to because I in fact had no desire to be a Sniper and wanted to be a Closer Quarter Combat Trooper and not a Sniper.
…”
34. The contents of the applicant’s statement of 20 June 2006 (Exhibit A3) are as follows:
“William Kennedy says as follows, in relation to Writeway Service’s evidence:
1. I have read a report prepared by Writeway dated 17 January 2006. I have never met Colonel Langford and to my knowledge he has not been an SASR soldier.
2. Colonel Langford is wrong when he says ‘48 were selected following the selection course in 1987.’ I came to the selection course as an infantry soldier.
3. Those 48 people may well have done the initial selection course but they did not do the course for the purpose of becoming what I call ‘bayonets’ or fighting SASR soldiers.
4. From the information available to me, I believe that of the 48 who did this selection course 10 of those people were officers who do the selection course as part of their training and advancement in the Army but it is never intended that those officers become fighting SASR soldiers. It is in my view entirely misleading to include those people who were never going to become SASR troopers as part of those statistics. Those people only ever do a rotation of one or maximum of two years in the SASR.
5. In addition to that there were in my selection course one Navy officer and five Navy clearance divers. They do the SASR selection course to do one year doing counter terrorism work and then go back to the Navy. They do not do the selection course with a view to becoming fulltime SASR bayonet soldiers.
6. In addition in my selection course there were two support soldiers one of whom was craftsman and one of whom was signalman. They do not ever become fighting bayonet soldiers. However they are required to do the selection course because the regiment preferred having everybody associated with the regiment ‘beret qualified’, so as to reduce the ‘them and us’ mentality.
7. Of my selection course there were so far as I was concerned only approximately 27 Army soldiers who ever intended to become soldiers in the SASR. I made that precise point in my letter to the AAT which was in the T Documents at T1. I made that point to the Respondent in February 2002.
8. Since that time I have not seen any evidence that the Respondent has in any way challenged that material.
9. I note that the Respondent’s Amended Facts and Contentions rely in paragraph 1.24 on the letter from David Lewis dated 7 November 2002. I note that Lieutenant Colonel Lewis at that time said ‘I confirm that the SASR did not have policy limiting soldier’s service within the regiment to 14 years.’
10. I attach a copy of David Lewis’s letter to this statement. I say based on my experience and knowledge that the material provided by David Lewis in November 2002 is far more accurate and based on his actual enquiry with the regiment at that time rather than the third hand material provided by Mr Langford.”
[The Tribunal notes that the Writeway Research Service report prepared by Col P Langford (Rtd), and the letter dated 7 November 2002 from Lt Col D Lewis, referred to in, respectively, para 1 and para 9 of the above statement, are set out in, respectively, paragraph 39 and paragraph 37 below.]
The evidence of Lieutenant Colonel David Lewis (Retired)
35. Lt Col Lewis said that he joined the SASR as a Private soldier in 1965 and became an officer in 1976. He confirmed that he had seen an outline of his evidence, dated 26 May 2005, prepared for the purpose of these proceedings. The contents of that document, which was tendered in evidence by the applicant (Exhibit A1), are as follows:
“…
2. I served in and out of the SAS and Special Forces Regiments until 1999 when I retired. When I retired I was the rank of Lieutenant Colonel which was at the time the highest rank with the SASR.
3. I have seen documents contained in the ‘T’ documents filed in these proceedings at pages 250, 251, 252, 253 and 248.
4. I am the author of those documents.
5. I created those documents in about June or July of 1995 when I was Staff Officer Personnel at the headquarters of Special Operations in Canberra.
6. I created those documents as part of a very lengthy document called Career Management – Special Forces.
7. Annexed to the statement... is a copy of that document…
8. As can be seen from that document and the nature of the document, it was prepared by me as a management tool to address the career structure in the SASR.
9. I refer in particular to paragraph numbered 81 on page 16 of the document which sets out my view as to how the milestone table, which is contained at page 248 of the Respondent’s ‘T’ documents, should be used.
10. I can say from my knowledge of serving in the SASR that there was at the time I served no policy (either express or implied) that required a Trooper to be removed or transferred from the SAS after any length of service, whether that be after 12 years, 14 years or any other period. From time to time it is true that soldiers would transfer from the unit and transfer back into the unit by way of career path or progression. It is clear however from the document that I have prepared that there are a significant number of matters that impact upon those transfers in and out of the unit.
11. It is the case, from my own knowledge and experience at the unit, that it was unlikely that a Trooper would transfer out unless it was to further his career. A Trooper would not normally be moved out against his wishes unless for disciplinary reasons. I understand that Mr Kennedy was a Trooper.
..”
[The Tribunal notes that a copy of the document (dated May 1995) referred to in para 6 of Lt Col Lewis’ outline of evidence, together with annexures A-D and F, are also in evidence (Pt of Exhibit A1). Paragraph 81 of that document, which is referred to in para 9 of Lt Col Lewis’ outline of evidence, is as follows:
“81. The Milestone Table is a management tool only and not all Special Forces NCO will fit the mould. It should however provide a measure of guidance to the new CO during that period of time when decisions are made with perhaps insufficient background data.”]
36. In his oral evidence Lt Col Lewis said that:
· the document referred to in para 6 of his outline of evidence had not been implemented by the Army;
· in his 30 years’ experience with the SASR, it would be “extremely rare” for a Trooper to leave the Regiment for other than medical and/or disciplinary reasons;
· the SAFA was in existence by the late 1980s and every qualified member of the SASR received SAFA;
· if a Trooper left the SASR and was posted to another unit in the Army, he would cease to receive the “disability” component of SAFA, but would continue to receive the “skill and qualification” component of SAFA on the understanding that he would return to the unit within 3 years;
· although the “norm” in the SASR was that, after 4-5 years, a Trooper’s expectation would be to be promoted to Corporal and then to be promoted to Sergeant after a further 5-6 years, there were some “very long-serving Troopers” in the SASR when he was a member of that unit;
· although it would not be the “norm”, a Trooper in the SASR might be “quite happy” not to seek promotion and to remain in the SASR as a Trooper, and he would be able to do so especially if he had a particular skill that was considered to be valuable and provided that he maintained an appropriate fitness level;
· the SASR is a “fairly rankless” unit and members of the SASR are not as conscious of rank as members of the Army generally;
· Trooper is the “most critical” rank in the SASR and Troopers are “highly valued resources” because, without Troopers, there would not be a Regiment;
· a member of the SASR whose fitness level fell below that which was appropriate for his existing duties “could be retained in the Regiment in another capacity for years and years and years…and maintain his Special Action Force Allowance”. (Transcript, p 82)
37. Lt Col Lewis confirmed that he had written a letter dated 7 November 2002 to the applicant’s (then) representative. The contents of that letter, which was tendered in evidence (Exhibit R1), are as follows:
“…
I confirm, SAS did not have a policy limiting soldier’s service within the Regt to 14 years. Whilst it may have been a strong desire to rotate soldiers out and back to the Unit, it was the exception, not the rule that this occurred.
Whilst all soldiers have an expectation that they could leave the SAS Regt, based on percentage of those posted into the Unit and were ECN 353 qualified, very few in the category actually left the Unit on Posting. The higher percentage of those posted were usually those that left for career progress, such as Sergeants on Promotion to Warrant rank or high performance Junior Non-commissioned Officers to Instructional Appointments at 1 RTB Kapooka etc.
… Soldiers who may have been perceived to be average, or below average in their performance as an SAS soldier in a Combat Role, can usually rotate into another Trade Skill such as Logistics or Clerical and be retained within the Regiment for many years. There is certainly many precedence’s (sic) where this has occurred in the past and I am confident, still does today.
I note that 41% of the soldiers that completed selection with Mr Kennedy are still serving within Special Forces after 15 years. A possible assumption therefore is that the other 59% may have been posted. I may equally suggest that of the 59% who have left the Regiment, for whatever reason, a quantity (?) of these soldiers would have separated from the Military altogether and therefore, the percentage that has been posted could be very low indeed.
Time in the SAS Regiment for the ECN 353 soldier is based on many factors, qualifications, fitness, skill, performance and most of all, progression within ranks. Not all soldiers so posted are selected within a reasonable time window for rank. Within a Pyramid system (W01 down to Trooper), only the best should progress to each level. Those that fall by the way are generally Troopers, who realise they may not get promoted within a reasonable (perceived) time frame. Some opt for discharge whilst others opt for a Trade skills relocation, in an attempt to promote their longevity within SAS. To suggest that, as a general rule ALL soldiers leave the Regiment at the < 12 year mark is, in my humble opinion, not an accurate statement.
…” (original emphasis)
The evidence of Colonel Peter Langford (Retired)
38. Col Langford confirmed that he is a consultant to Writeway Research Service and that, following a request from the respondent’s solicitors, he prepared a report dated 17 January 2006. That report was tendered in evidence by the respondent (Exhibit R5).
39. Col Langford said that the information contained in his report had been provided, in response to a request by him, by the SASR in Perth. That information was as follows:
“Based on 2005 statistics, the average length of qualified TPR service is 6.105 years.
48 were selected following the selection course in 1987.
35 have since been discharged (including Kennedy).
Of the 13 who are still serving in the ADF, their ranks are as follows:
2 x Maj, 2 x Capt, 2 x WO1, 4 x WO2, and 3 x SGT.
Of these, only eight are still receiving full SAF allowances.”
40. Col Langford also confirmed that, following a request from the respondent’s solicitors for further information, he made further inquiries of the SASR and, on 22 June 2006, he received in response an e-mail with an attachment containing the following information provided by the SASR (Exhibit R6):
“…
Aim
·The aim of this brief is to provide an update to Sparke Helmore Solicitors re Mr Kennedy’s service within SASR.
Update of requested information
·Of the 48 persons successful on Mr Kennedy’s selection course, 35 members have since taken discharge from the Australian Defence Force (ADF). Of those 35, two have re-enlisted for service within SASR. For the purpose of this brief, they will be identified as Soldier 1 and Soldier 2.
·The dates of re-enlistment of Soldier 1 and Soldier 2 were:
·Soldier 1 – Apr 99
·Soldier 2 – 5 Feb 90
·All persons serving in ECN353 roles are afforded SAFA IAW PACMAN Chapter 4 Part 3, Div 12 and Div 13; Employment Category Standing Orders; and the Manual of Army Employment.
·Soldier 1 and Soldier 2 were re-enlisted as:
·Soldier 1 – CPL
·Soldier 2 – PTE/TPR
·Soldier 1 and Soldier 2 subsequently discharged as follows:
·Soldier 1 – 2006
·Soldier 2 – 1997
·In accordance with the requirements of Army Individual Readiness Notice (AIRN), all members re-enlisting into the ADF are to comply with the requirements of AIRN.
·Of the 48 persons successful on Mr Kennedy’s selection course, fourteen soldiers are still serving within the ADF.
Conclusion
·This is the only information that SASR can provide in reference to service in SASR.
…”
Additional evidence
41. The T Documents contain the following documents which were relied upon by the delegate of the respondent who made the reviewable decision of 21 December 2001:
· Minute dated 24 February 1997 from Headquarters Special Operations, Australian Army to the respondent (T147, p249) as follows:
“…
1. Please find attached career planning tables relating to the career progression of personnel employed in ECN 353 SAS Trooper. The tables have previously been used in Special Action Force Allowance (SAFA) reviews and in submissions to the DFRT.
2. The tables show a career path from the entry rank of Trooper to the senior rank of Warrant Officer Class One. The normal career path would be for the soldier to be posted out of SASR as a senior Sergeant or on promotion to Warrant Officer Class Two. This would occur after approximately 12 years. From there the soldier will compete with his peers to return to SASR for higher appointments.
…”
[The Tribunal notes that the “career planning tables” (T147, pp 250-253) referred to in the above Minute were prepared by Lt Col David Lewis in May 1995 and are part of Exhibit A1 herein – see paragraph 35 above.]
· Letter dated 25 July 2000 from the SASR to the applicant (T145) as follows:
“As you requested during our recent telephone conversation, detailed below is an expected career path (on average) for a qualified SAS soldier. The normal three year Army posting cycle does not apply to qualified SAS soldiers as this is the only unit that uses the specialist skills that are obtained during initial training.
As you can see in the table below, you could reasonably expect a posting outside of the SASR after eight years service with the Regiment.
YEAR
PROMOTION
AGE
REMARKS
87
TPR
22
Selection course and posted to SASR mid year.
88
TPR
23
Year 1 Sqn
89
TPR
24
Year 2 Sqn
90
LCPL
25
Recovery Sqn (possible promotion to LCPL depending on performance).
91
CPL
26
Possible promotion to CPL depending on performance.
92
CPL
27
93
CPL
28
94
CPL
29
95
CPL
30
Reasonably expect to receive a posting to 1 Cdo Regt, a Training Establishment or an Infantry Battalion for career progression in one of these years for a 2 to 3 year period before returning to SASR.
96
SGT
31
97
SGT
32
98
SGT
33
99
SGT
34
Possible posting overseas for 2 years depending on performance.
00
WO2
35
Possible promotion to WO2 depending on performance and return to SASR.
01
WO2
36
02
WO2
37
03
WO2
38
04
WO2
39
20 Year anniversary – may elect discharge.”
· Letter dated 25 August 2000 from Headquarters Special Operations, Department of Defence to the Department of Veterans’ Affairs (T163, p273) as follows:
“
1. I refer to your letter of 1 August re compensation for Mr William Kennedy. …
2. I can confirm the SASR Reinforcement Cycle is as shown in your letter. There have been subtle changes to the length of some courses and minor name changes to take into account the progressive nature of Special Forces however the qualifications gained after these changes have not altered the end product.
3. The Career Flow Chart remains as indicated. In some circumstances a soldier can attend a course not in the sequence shown. This could be to fill a unit vacancy or an unexpected need that must be fulfilled due to operational reasons.
4. Notwithstanding the above, it must be understood that progression in SASR is on qualification and experience in the job skills of the career path the soldier is in and not based on time in the job or time-in-rank. The time frame shown is a guide to qualify, gain experience and be prepared for additional responsibilities in the current rank as a flow on to promotion.
…”
[The Tribunal notes that the “SASR Reinforcement Cycle” and the “Career Flow Chart” referred to in the above letter are the “career planning tables” referred to in the above Minute of 24 February 1997 and, as stated above, were prepared by Lt Col David Lewis in May 1995 and are part of Exhibit A1 herein – see paragraph 35 above.]
42. The applicant tendered in evidence a letter dated 13 June 2002 from the SASR to him (Exhibit A4) as follows:
“I write in response to your letter dated 15 May 02. After examination of unit records the answers to your questions are as follows:
Q1. SASR doesn’t have a policy of limiting soldiers’ service to 14 years either consecutively or in total.
Q2. There is no current policy constraining SAS Soldiers to a set amount of years which they can serve in the Regiment. Soldiers do regularly leave SASR for career development or for Service reasons but this depends on the individual and Service circumstances.
Q3. It would be rare for a soldier to serve more than 14 years consecutively at SASR but some of SASR’s senior soldiers have served more than 14 years total service at SASR.
Q4. The total of RA Inf soldiers who passed the same selection course as yourself is 32, and currently approximately 13 are still serving members in SASR or the SF Group.
Q5. Yes, soldiers are regularly posted out and then return as a normal process for career progression.
…”
Analysis
43. Section 8(10) of the SRC Act operates, for the purpose of determining the amount of compensation, by way of incapacity payments, which is payable to an employee in accordance with s 19 of that Act, to impose a limit on the amount of such payments so as to ensure that the employee is not, by reason of such payments, placed in a more advantageous position during the period of his/her incapacity than he/she was in before becoming incapacitated for work as a result of the relevant injury: Bortolazzo v Comcare (1997) 75 FCR 385 at 388; Re Spurr and Comcare (1999) 28 AAR 424 at 428.
44. Section 8(10) contains 2 alternative paragraphs, namely, para (a) and para (b). In the present case, because the applicant has ceased (since 27 July 1992) to be employed by the Commonwealth, para (b) of s 8(10) is the applicable provision.
45. Paragraph (b) of s 8(10) contains 2 subparagraphs, namely, subpara (i) and subpara (ii). The distinction between those 2 subparagraphs is a temporal one – whereas subpara (i) refers to the weekly earnings that the employee would receive if he/she had continued to be employed in the employment in which he/she was engaged “at the date of the injury”, subpara (ii) refers to the weekly earnings that the employee would receive if he/she had continued to be employed in the employment in which he/she was engaged “at the date on which the employment by the Commonwealth…ceased”. In the present case, the application of subpara (i) is problematic for the applicant because the applicant was not receiving SAFA (the critical component of his “normal weekly earnings” for present purposes) at the date of his initial injuries (namely, his ankle injuries sustained on 1 December 1984), although he was receiving SAFA at the date of his subsequent injuries (namely, his right knee injury and his low back injury sustained in June 1988 and May 1989, respectively). The application of subpara (ii) in the present case, however, is not problematic because the applicant was receiving SAFA at the date on which his employment by the Commonwealth ceased, namely, 27 July 1992. It is common ground that SAFA is a component of the applicant’s “normal weekly earnings” for the purposes of subss (1) and (10) of s 8 of the SRC Act.
46. For the purposes of applying subpara (b)(ii) of s 8(10) of the SRC Act in the present case, it is first necessary to determine “the employment in which [the applicant] was engaged at the date on which [his] employment by the Commonwealth…ceased”, namely, 27 July 1992.
47. In Re Richards and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (unreported, AAT Application No A1992/123, 26 May 1993) the Tribunal (at para 21) noted that the word “employment” is not defined in the SRC Act and said that, in the context of s 8(10), “it must mean the general duties or classification rather than the precise and specific duties of the job”.
48. The Tribunal notes, however, that s 5(2) of the SRC Act provides, in the case of a member of the Defence Force, that that person’s “employment” shall, for the purposes of the Act, “be taken to be constituted…by the person’s performance of duties as such a member of the Defence Force.”
49. In the present case the applicant’s Record of Service (T147) indicates that:
· he enlisted in the Australian Regular Army on 3 July 1984;
· after completing his recruit training on 18 September 1984 he was allocated to the Royal Australian Infantry Corps and posted to the School of Infantry as a Private Trainee;
· he was posted to 2/4 RAR on 9 March 1985;
· he was posted to SASR on 6 June 1987;
· he remained posted to SASR until he elected to be discharged on 27 July 1992.
In the Tribunal’s opinion, the “employment in which [the applicant] was engaged at the date on which [his] employment by the Commonwealth…ceased”, for the purposes of s 8(10)(b)(ii) of the SRC Act, is, in accordance with s 5(2) of that Act, constituted by his performance of duties as a member of the Defence Force – in particular, as a member of the Australian Regular Army.
50. The next matter which the Tribunal is required to determine for the purposes of applying s 8(10)(b)(ii) of the SRC Act in this case relates to the amount per week of the earnings that the applicant would receive if he had continued to be employed as a member of the Australian Regular Army. It is common ground that the critical matter which the Tribunal is required to determine for this purpose is whether, had the applicant continued to be employed as a member of the Australian Regular Army, he would have continued to receive SAFA, and would still be receiving SAFA as at the present date. It is also common ground that the applicant would have continued to receive SAFA for as long as he remained posted to the SASR. The decisive matter for the Tribunal to determine is, therefore, whether the applicant would have continued to be posted to the SASR, and would still be posted to the SASR as at the present date.
51. The Tribunal unreservedly accepts that the applicant’s evidence (set out in paragraph 33 above) regarding his desire and intention to continue to serve in the SASR as a Trooper, and not to leave the SASR, and his expectation that he would remain in the SASR and his belief that, but for his injuries, he would still be a Trooper in the SASR.
52. The Tribunal accepts the evidence of Lt Col Lewis (referred to in paragraphs 35 and 37 above) that, up until the time of completion of his service in the SASR in 1999, there was no official policy which imposed a limit on the period which a soldier might serve in the SASR or which required that a Trooper be transferred from the SASR at the expiration of any particular period of service in the SASR. The Tribunal also accepts the contents of the letter from the SASR dated 13 June 2002 (set out in paragraph 42 above) which are consistent with the abovementioned evidence of Lt Col Lewis. The Tribunal notes that the respondent did not produce any evidence to contradict that evidence and furthermore, in the absence of such contradictory evidence, the Tribunal is prepared to infer that, at the present time, there is still no official policy to the abovementioned effect.
53. The evidential material chiefly relied on by the respondent essentially comprises the report of, and additional material provided by, Col Langford, referred to in paragraphs 39-40 above, and certain documents contained in the T Documents referred to in paragraph 41 above. On the basis of that material, which includes information of a statistical nature, the respondent submitted that it was likely that the duration of the applicant’s initial posting to the SASR would have been no longer than 5-6 years, although it may have extended up to a maximum of 10 years, and that his period or periods of service in the SASR would have expired by 5 June 2001 (being the expiry date for the payment of SAFA to the applicant, as determined by the delegate in the reviewable decision of 21 December 2001).
54. The abovementioned material relied on by the respondent includes various documents, namely, “SASR Reinforcement Cycle for Placement and Career Flow Chart”, a “Career Milestones Table” for SASR members, and “pie charts” containing statistical information regarding the rank of SASR members at discharge and the duration of service in the SASR of members of the ranks of Trooper and Corporal, prepared by Lt Col Lewis and annexed to his report entitled “Career Management – Special Forces” of May 1995, referred to in his outline of evidence (see paragraph 35 above). The Tribunal notes, however, that Lt Col Lewis in his evidence described his abovementioned report, and the annexures thereto, as merely a “management tool” for addressing the career structure of the SASR, and he readily acknowledged that the careers of some serving members of the SASR – examples of which he referred to in his evidence – did not conform to the career tables he had prepared. He referred to there being some “very long-serving Troopers” in the SASR when he was a serving member of that Regiment and he said that a Trooper “would not normally be moved out [of the SASR] against his wishes unless for disciplinary reasons”. He acknowledged that, although it would not be the norm, a Trooper who was content not to seek promotion and to remain in the SASR as a Trooper would be able to do so, and even if his fitness level fell below that which was appropriate for his existing duties he “could be retained in the Regiment in another capacity for years and years and years…and maintain his Special Action Force Allowance”.
55. Having regard to the whole of the evidence before it, the Tribunal is satisfied that:
· the applicant, having become qualified for posting to the SASR, and having been posted to the SASR as a Trooper on 6 June 1987, desired, and intended, to remain in the SASR as a Trooper for the remainder of his service as a member of the Australian Regular Army;
· there was, and is, no official rule or policy of the SASR, the Australian Army or any other Australian Defence Force agency that would necessarily prevent him from so doing or would otherwise limit the period in which he could continue to be a serving member of the SASR during his period of service as a member of the Australian Regular Army;
· the applicant desired, and intended, to serve as a member of the Australian Regular Army posted to the SASR for the remainder of his working life.
56. The Tribunal has had regard to the abovementioned statistical and other material relied on by the respondent but that material is of itself insufficient to satisfy the Tribunal that the applicant, contrary to his firm and unequivocal desire, intention and expectation, would not have continued to serve as a Trooper in the SASR beyond 5 June 2001 and would not still be continuing to serve as a Trooper in the SASR as at the present date.
Findings
57. On the basis of the whole of the evidence before it, the Tribunal is satisfied, and finds, that, if the applicant had continued to be employed as a member of the Australian Regular Army from 27 July 1992:
· he would have continued to serve as a Trooper in the SASR from that date and would still be continuing to serve as a Trooper in the SASR as at the present date; and, by reason thereof
· he would have continued to receive SAFA from that date and would still be continuing to receive SAFA as at the present date.
Determination of the Matter in Dispute
58. The Tribunal determines, therefore, that, in accordance with s 8(10)(b) of the SRC Act, on and from 5 June 2001 to the present date, and as at the present date, SAFA is included in the applicant’s “normal weekly earnings” (as calculated in accordance with s 8(1) of that Act) for the purpose of determining the amount of compensation, by way of incapacity payments, which is payable to the applicant in accordance with s 19 of that Act.
Decision
59. Pursuant to ss 42C(3) and 43(1) of the AAT Act, the Tribunal sets aside the reviewable decisions dated 21 December 2001 (Application No W2002/54), 21 July 2005 (Application No W2005/297), 21 July 2005 (Application No W2005/298), and 27 January 2006 (Application No W2006/21), and, in substitution therefor, decides as follows:
(a)for the whole of the period from 27 January 2001 to 28 July 2005 (“the relevant period”) the applicant was entitled, pursuant to s 19 of the SRC Act, to receive compensation, by way of incapacity payments, in the amount determined in accordance with s 19;
(b)for the whole of the relevant period the applicant received compensation pursuant to s 19 of the SRC Act, and, subject to paragraph (c) below, the respondent is not liable to pay to the applicant, in respect of the relevant period, any further compensation pursuant to s 19 in addition to the abovementioned compensation which it has previously paid to him pursuant to s 19;
(c)for the whole of the relevant period the applicant’s “normal weekly earnings” (for the purposes of s 19 of the SRC Act) included SAFA, and the applicant is entitled to receive, and the respondent is liable to pay to the applicant, such further compensation as is payable to him in accordance with s 19 on the basis that his “normal weekly earnings”, for the purposes of s 19, included SAFA for the whole of the relevant period;
(d)from 29 July 2005 to the present date, and as at the present date, the applicant has been, and is presently, incapacitated for work, and has been, and is presently, not able to earn any amount in “suitable employment”, for the purposes of s 19 of the SRC Act, as a result of the following compensable “injuries” (within the meaning of the SRC Act) in combination, namely:
(i) left ankle inversion sprain;
(ii) right ankle inversion sprain;
(iii) patello-femoral pain left knee;
(iv) grade one medial collateral ligament strain right knee;
(v) soft tissue muscular low back pain; and
(vi) post traumatic stress disorder, in partial remission and adjustment disorder/disturbance with mixed symptoms of anxiety and depression (chronic) in partial remission, mild with residual symptoms;
(e)from 29 July 2005 to the present date, and as at the present date, the respondent is liable to pay to the applicant compensation, by way of incapacity payments, in accordance with s 19 of the SRC Act on the basis that the applicant’s “normal weekly earnings”, for the purposes of s 19, included, and includes, SAFA.
60. The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the respondent pay the applicant’s reasonable legal costs and disbursements in respect of these proceedings, the amount of such costs and disbursements to be agreed, or to be taxed if not agreed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: ...........[Sgd Y Maker].........................
AssociateDates of Hearing 1, 2, 20, 22 June 2006
Date of last submissions 18 July 2006
Date of s 42C Agreement 13 November 2006
Date of Decision 15 January 2007
Advocate for the Applicant Mr C Prast
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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