Williams and Military Rehabilitation and Compensation Commission
[2005] AATA 477
•27 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 477
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2001/43
VETERANS’ APPEALS DIVISION ) Re GARY WILLIAMS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member B J McCabe Date27 May 2005
PlaceBrisbane
Decision The decision under review is set aside. The applicant’s accommodation on the base and on exercises were features of his employment with the RAAF. Viruses he might have contracted while living in those conditions are therefore attributable to his employment. ....................[Sgd].......................
SENIOR MEMBER
CATCHWORDS
COMPENSATION – matter remitted from Federal Court – Tribunal to conduct a narrowed review – Tribunal bound to follow Federal Court order – war-caused Diabetes Mellitus – applicant lived at close quarters with other service men which exposed him to viruses – living in close quarters was an incident of the applicants employment with the RAAF – viruses the applicant might have contracted were attributable to the applicant’s employment.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 6
Williams v Muller [2003] FCA 1190
Charles R Davidson and Co v M’Robb (1918) AC 304
Humphrey Earl Pty Ltd v Speechley (1951) 84 CLR 126
REASONS FOR DECISION
27 May 2005 Senior Member B J McCabe introduction
1. Gary Williams was diagnosed with Type 1 Diabetes Mellitus in 1989 while serving with the Royal Australian Air Force (the RAAF). He says his employment contributed to the development of his medical condition. While he concedes he may have had a predisposition to the condition, he argues environmental factors associated with his employment – in particular, living at close quarters with other serviceman which exposed him to viruses, alcohol consumption and an unhealthy diet – acted as a trigger for the onset of the disease. He sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
2. In an effort to settle the proceedings, the parties agreed to commission an expert who would look at the applicant’s environment while he served with the RAAF and make a binding determination whether or not that environment contributed to the development of the condition. Professor Alexander Cohen was commissioned to prepare the report. He concluded exposure to viral infections may have contributed to the development of the condition, and the environment may have led to the applicant being exposed to the viruses. Professor Cohen’s report assumed the applicant lived on RAAF bases in barracks during most or all of his nine-year service with the RAAF.
3. The Military Rehabilitation and Compensation Commission (the MRCC, formerly Comcare) argued it was not bound by the report after it was delivered. The applicant obtained a declaration from Mansfield J in Williams v Muller [2003] FCA 1190 before the hearing in the Tribunal. Mansfield J made a declaration to the effect that the MRCC was bound by the agreement in the Tribunal proceedings. His Honour remitted the matter to the Tribunal. He made a number of orders that shaped and narrowed the Tribunal’s inquiry.
4. The parties now agree Professor Cohen’s report was based on incorrect factual assumptions. The applicant says the Tribunal is nonetheless obliged to follow the orders of Mansfield J. The respondent says the Tribunal is not obliged to apply the orders in the circumstances.
5. After reviewing the decision of Mansfield J and all the evidence, I am satisfied the applicant’s claim should succeed. I explain my reasons below.
the material before the tribunal
6. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:
·Statement of Gary Williams - dated 9 November 2004 (exhibit 2);
·Statement of Kenneth Hazel - dated 17 November 2004 (exhibit 3);
·Report of Professor Alex Cohen - dated 28 August 2002 (exhibit 4);
·Statement of Peter Cox - dated 14 October 2004 (exhibit 5);
·Letter of Mr Perske - dated 10 November 2004 (exhibit 6);
·Extract from Applicant’s personal records - dated 14 June 2001 (exhibit 7);
·Facsimile of Susan Brinton - dated 15 April 2004 (exhibit 8);
·Statement of Alan Simet - dated 9 November 2004 (exhibit 9);
·Statement of Daryl Craig John Mullan - undated (exhibit 10);
·RAAF Messing Policy Issue No 9/89 - dated 1 October 1989 (exhibit 11);
·RAAF Health Promotion Programme (exhibit 12);
·Applicant’s Service Medical Records (exhibit 13);
·Statement of Garry Williams - dated 29 January 2002 (exhibit 14);
·Statement of David Addley - dated 31 January 2005 (exhibit 15);
·Statement of John Daniel Liddy - dated 28 January 2005 (exhibit 16);
·Report of Dr DuPuche - dated 19 December 2001 (exhibit 17);
·Report of Dr Martin - dated 18 December 2001 with supplementary report dated 12 March 2002 (exhibit 18);
·Bundle of documents including documents relied on by Professor Alex Cohen – undated (exhibit 19).
7. The applicant gave evidence in person at the hearings held in Darwin and Brisbane. Mr Kenneth Hazel also gave evidence on behalf of the applicant.
8. The applicant was represented by Mr Anforth of counsel. The respondent was represented by Ms Maharaj of counsel.
the decision in Williams v Muller [2003] fca 1190
9. Mansfield J found the parties entered into a binding agreement to accept Professor Cohen’s conclusions as to the cause of Mr Williams’s diabetes. His Honour noted (at paragraph 42 of the decision) Professor Cohen’s report proceeded on the basis the applicant had been a resident in RAAF single persons’ accommodation for nine years. His Honour also noted (at paragraph 51) Professor Cohen was supplied with the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 that included the applicant’s medical records and personal history – which appeared to suggest the applicant had resided in the single persons’ accommodation throughout his service with the RAAF. Professor Cohen was asked to accept those documents were accurate. There was no suggestion before Mansfield J that the applicant had not resided in the accommodation throughout his service. Evidence that the applicant lived off-base for a substantial part of his time in the RAAF has emerged recently.
10. His Honour read the expert report and concluded (at paragraph 62):
…Professor Cohen's opinion is that Mr Williams developed repeated viral infections only during the period of his employment with the RAAF in the 1980s, and that the repeated viral infections in a material way led to his diabetes.
11. That was a factual conclusion. His Honour said (at paragraph 64) it remained for the Tribunal to resolve the legal question: were the environmental factors referred to in Professor Cohen’s report part of or a feature of Mr Williams' employment with the RAAF so that he suffered a `disease' as defined in s 4 of the SRC Act?
12. His Honour restated the issue at paragraph 66 in these terms:
What has arisen is the question whether what Professor Cohen has identified as the relevant ‘employment' related causative factors are in fact employment related. If, as a matter of law, they are not employment related, then the claim must be rejected, and Comcare would not accept the claim.
13. Mansfield J proceeded to make a declaration in the following terms at the conclusion of the case:
Gary Williams and Comcare are bound by their agreement made on 17 May 2002 to accept as a fact that the Type 1 diabetes mellitus now suffered by Mr Williams was contributed to in a material way by him developing viral infections and vulnerability to viral infections during the period of his service in the Royal Australian Air Force, and that matters concerning his living circumstances during his period of enlistment from about 1980 and the changed lifestyle which developed during that period contributed in a material way to the diabetes now suffered by Mr Williams.
14. His Honour then remitted the matter to the Tribunal with the following orders:
The matter be referred to the Administrative Appeals Tribunal to determine in such manner as it may determine whether, in the light of the opinion of Professor Cohen of 28 August 2002, the onset of repeated viral infections and hence diabetes which was contributed to by Mr Williams' living circumstances from about 1980 and the changed lifestyle which developed during that period were features of or were part of or a consequence of his employment with the Royal Australian Air Force.
The effect of the orders of the Court on the tribunal’s deliberations
15. The parties – particularly the respondent – conceded the Federal Court’s detailed orders appear to leave the Tribunal in a difficult position given the evidence that has emerged about the basis of Professor Cohen’s conclusions with respect to causation. Ms Maharaj says the MRCC has no legal basis for making a compensation payment where the causal link between the condition and employment has not been established. She also suggested the agreement was subject to an implied term that the facts provided to Professor Cohen would be accurate. She says the agreement does not bind the Tribunal when it later emerges there was a breach of the implied term.
16. The applicant says the Federal Court’s orders mean questions over the validity of the agreement are now moot. Mr Anforth says I am required to accept what the Federal Court has said about the agreement and confine my inquiry to the narrow question of whether or not the living circumstances and lifestyle which may have caused the viral infections were features of the applicant’s employment. Mr Anforth argues the respondent should have approached Mansfield J for clarification of his orders or sought leave to appeal when the new evidence emerged if it wished to challenge the effect of the agreement. The respondent has decided against doing that, although Ms Maharaj suggested the Tribunal’s decision in these proceedings would provide a convenient vehicle for an appeal should it become necessary.
17. Mr Anforth went on to argue the acknowledged errors of fact in Professor Cohen’s report were not a problem for his client in any event. Mr Anforth pointed out Professor Cohen concluded the applicant’s condition developed as a result of viral infections sustained during the early part of his service when the applicant was in fact living in single persons’ accommodation on base.
18. The Tribunal is part of the executive of the Commonwealth. It is bound by the Court’s orders. While the Tribunal ordinarily expects to have the freedom to review all of the material in the course of reaching the correct or preferable decision, the Federal Court on this occasion has seen fit to shape and limit that process of inquiry. If those orders turn out to be inappropriate – as the respondent has respectfully suggested - the Federal Court is equipped to fix the problem. While I would prefer to conduct a more extensive inquiry, I acknowledge it is possible to apply the orders in a way that produces a defensible conclusion.
application of the orders
19. Professor Cohen’s report (exhibit 4) concludes (at page 8) the applicant’s “living circumstances during the early period of his enlistment and the changed lifestyle which developed during this time” were causally connected to the bouts of viral infections he experienced beginning in 1982. It remains only for me to consider whether the injury or disease caused by the applicant’s living circumstances (the crowded accommodation while he lived on the base) and the lifestyle (the drinking and diet) could be said to arise out of his employment: s 6 SRC Act.
20. The applicant undertook basic training at Edinburgh in South Australia after his enlistment in October 1981. He said he understood at the time of his enlistment that he was entitled to free dental and medical treatment and subsidised food and housing. He lived in shared accommodation on the base at RAAF Edinburgh with other recruits. There were up to four recruits to a room. The bedrooms were very small, with only a metre or so between each bed. There was a common ablutions area. Mr Williams ate along with the other recruits in the mess. Recreation facilities were limited: the airmen’s club was the only place to relax and watch television. Mr Addley and Mr Liddy gave similar evidence (exhibits 15 & 16), although they were not cross examined about their statements.
21. The applicant was posted to Amberley in January 1982. After a period of training, he became an airfield defence guard. He stayed at Amberley in that role until late 1988, when he was posted to Laverton. He was subsequently posted to Darwin.
22. Mr Williams said he was required to live on base in the recruits’ barracks when he first arrived at Amberley and underwent training. He recalled in his evidence that the keys to his accommodation were available for collection from the guardhouse upon his arrival.
23. The recruit training blocks at Amberley were cramped. The men lived in small rooms with four beds. Each bed was separated by a small space and a cupboard. There was no common room in the accommodation blocks. Recruits resorted to the tavern located on the base if they wished to socialise or watch television. The applicant explained in his evidence the airmen would almost inevitably drink alcohol. The applicant said he ate in the mess, although he suggested he occasionally skipped a meal and consumed takeaway food from the “pie cart” or “smoko van”.
24. The training course ran for three months. After graduation, the applicant moved from the recruit training block to the airmen’s accommodation block. The rooms were a similar size to those in the recruit block but there were only two men in each room, instead of four. The recreational facilities were effectively the same as for the recruits.
25. The applicant said in his oral evidence that he resided in the airmen’s accommodation for over 12 months. He said he gradually became aware it was possible to obtain permission to move off-base after residing in the airmen’s accommodation for 12 months. He said he was keen to move out because he found the accommodation limited his social life. He lived at several addresses in the Ipswich and Brisbane area over the next 3 ½ years before returning to live in RAAF accommodation. He says he decided to return for economic reasons.
26. Mr Williams said in his evidence that he spent up to three months a year away on exercises while he was posted to Amberley. Some of that time was spent living in tents, or even in pits. The applicant lived in accommodation on military bases during other exercises.
27. Mr Kenneth Hazel confirmed the applicant’s evidence that he and other junior personnel were required to live on base until given permission to find accommodation elsewhere. Mr Hazel served in the RAAF at the same time as the applicant. He explained in his evidence that an airman needed the permission of his superiors before he was authorised to live off-base. Mr Williams explained he spoke with one of his NCOs who had to be satisfied the applicant was able to meet the responsibilities of his work if he lived off-base.
28. Mr Williams and Mr Hazel both agreed that airmen living together frequently contracted the flu. Mr Williams suggested colds and flu would spread through the accommodation blocks rapidly. He said airmen would be in confined spaces and cough and sneeze and it was impossible to avoid breathing the same air. He said he contracted colds on a number of occasions during his time in the recruits’ and airmen’s accommodation blocks. He said he frequently returned from exercises in the bush with the flu after being cold and wet and sharing cramped conditions with other airmen.
29. Apart from the mess and the delights of the wet canteen, the Amberley base offered sporting facilities. The applicant gave evidence that he was a keen sportsman in the early days of his service when he lived on the base. He played cricket, attended the gym regularly, ran and boxed. He referred to a policy requiring personnel to be able to pass a bi-annual fitness test that included the ability to complete a run within a minimum period of time. He confirmed he passed the bi-annual fitness tests on each occasion, even after he moved to live off the base. His level of activity and fitness appears to have declined as his service progressed, but he was still able to pass the fitness tests.
30. There was a good deal of evidence given in relation to the applicant’s diet. Mr Williams testified that he consumed junk food from a “pie cart” or a “smoko van” on the base on a regular basis while he was at work. He acknowledged he had the option of consuming a wider and probably healthier range of foods from the mess. The applicant clearly regarded the food in the mess as unappetising, but Mr Anforth conceded there was no challenge as to its quality or to the quality of the ration packs supplied to personnel.
31. There were also a number of questions directed to the applicant’s alcohol consumption. Alcohol consumption is acknowledged as a factor in the development and onset of diabetes. It is clear the applicant regularly consumed alcohol at various facilities provided on the base and elsewhere. He gave evidence that recruits were encouraged to bond with each other at the canteen. He acknowledged he was not required to drink alcohol, and agreed that some other personnel did not participate in the drinking. He suggested it was something he was encouraged to do.
32. I do not accept that participating in drinking sessions was an incident of the applicant’s employment: see Charles R Davidson and Co v M’Robb (1918) AC 304 at 314 per Lord Finley LC. While I have no doubt that many of the airmen drank regularly and even heavily, the evidence makes it clear there were airmen who did not participate in the heavy drinking. There is some evidence of a drinking culture in which young recruits bonded with each other in drinking sessions, but I am satisfied it was ultimately a matter of personal choice for the applicant. The applicant was not “doing something he was reasonably required, expected or authorised to do in order to carry out his duties…”: see Humphrey Earl Pty Ltd v Speechley (1951) 84 CLR 126 at 133 per Dixon J.
33. I am also satisfied that the applicant’s dietary habits were a matter of personal choice for which the respondent cannot be held responsible. The evidence suggested the food available in the mess at Amberley was typical of institutional food: uninspiring, but basically nutritious and of reasonable quality. The applicant eschewed that food – which was subsidised – and chose to eat junk food. I do not accept that eating junk food was an incident of his employment, or that he was required or expected to eat poor food. The evidence suggests the opposite is true.
34. The applicant’s exposure to viruses in the accommodation blocks while he lived on base is another matter. The applicant lived in these crowded accommodations after enlistment in October 1981 until at least April 1983. The applicant had no choice about his accommodations until given approval to live off-base sometime during 1983. Living in the accommodation blocks was required until such time as the applicant could satisfy his supervisors that he was competent to live on his own away from the base. That accommodation was subsidised, and the subsidy remained as an incentive to live on the base even after the applicant was eligible to live elsewhere. I am satisfied that living in the crowded accommodations was an incident of his job at least until April 1983, and that during this period the applicant contracted viruses on a number of occasions which provide a causal connection between his diabetic condition and his employment. I note that he also contracted viruses while participating in regular exercises in cold and wet conditions throughout his time at Amberley. Participating in those exercises was clearly part of his job.
conclusion
35. I have already indicated I would prefer to conduct an unconstrained inquiry into all of the facts and circumstances surrounding the applicant’s service with the RAAF and the development of his health problems. The scope of the remitter requires me to concentrate on whether:
…the onset of repeated viral infections and hence diabetes which was contributed to by Mr Williams' living circumstances from about 1980 and the changed lifestyle which developed during that period were features of or were part of or a consequence of his employment with the Royal Australian Air Force .
36. The applicant did not consume alcohol and junk food in the course of his employment. His accommodation on the base was a feature of his employment with the RAAF, as was his accommodation when on exercises. Viruses he might have contracted while living in those conditions were therefore attributable to his employment.
37. The decision under review is set aside. I will entertain submissions as to costs in due course.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.
Signed: .....................................................................................
Associate: Sam J AppletonDates of Hearing 22 November 2004, Darwin
2 February 2005, Brisbane
Date of Decision 27 May 2005The applicant was represented by Mr Anforth of counsel.
The respondent was represented by Ms Maharaj of counsel.
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