Military Rehabilitation & Compensation Commission v Clark

The function 3 During the day of the accident the respondent had attended a function at Camp Markham, part of HMAS Stirling. The purpose of this function was to welcome new members of the diving team to which the respondent belonged and to farewell some members who were being deployed to Townsville and then on to the United States for military exercises. 4 The Tribunal made a careful review of the evidence and set out its findings of fact. If I may say so, the clear way in which the issues, evidence and findings are presented could serve as a model for Tribunal determinations; see AAT Act s 43(2B). The findings of the Tribunal can be summarised as follows. 5 The function was organised by the diving team social convenor, ABCD Shields, who was in charge of the team fund or "kitty". His Warrant Officer and Executive Officer Lieutenant McPhail approved. Those attending paid $10 each. The function was to commence at noon. 6 The prescribed normal working hours for the diving team were between 7.50 am and 3.50 pm each working day. The Tribunal said at [21]: "As a general rule all personnel commenced leave at 4.00 pm. There is evidence that the team did not always work until 4.00 pm, including on some Fridays, depending on the work available at the time." 7 Members of the team arrived at the function at various times, some between 12.00 and 1.00 pm and others afterwards. A barbeque and beer keg were set up and sausages cooked. Soft drinks were also available. Personnel began socialising and drinking, discussing questions of issues of interest including work matters and in particular the deployment to Townsville and the United States. There were no formal speeches or proceedings. Lieutenant McPhail attended the function for some two hours. He left about 3.00 pm. Members of the team commenced leaving from some time after 2.00 pm although "quite a number" were still at the function at 3.00 pm when Lieutenant McPhail left. Petty Officer Davies left at this time, although he returned about 4.15 pm. The Tribunal said at [24]: "I am satisfied that many left between 3.00 and 4.00 pm although quite a number were still at the function after 4.00 pm. In due course there were only eight or so remaining at the function and they continued there until around about 5.30 pm when a number of those remaining helped clean up the site. There is no evidence to indicate that an announcement was made that the function had concluded." 8 All or almost all of the diving team who were at work at the base that day attended the function. The number who attended was in excess of thirty and could have been as many as forty. 9 The Tribunal found at [28] that there was the "clear understanding of most members of the diving team that it was necessary for them to attend the function". The Tribunal found at [30]: "that it was a common understanding among the members of the diving team that they were in fact required to attend the function at Camp Markham, and that is why almost all, if not all, members actually attended the function at Camp Markham, including senior personnel." 10 After reviewing the evidence about leave the Tribunal found at [32]: "… leave was not piped or formally announced and it was quite unclear as to exactly when members of the team were free to take their leave. Leave was not good prior to the function at Camp Markham. … The team members generally believed that they were required to attend the function and could not simply proceed directly home." 11 At about 3.30 pm ABCD Shields started to pack up the barbeque and moved it to a secure place. Quite a number were still at the function after four. In due course there were only eight or so remaining and they continued there until about 5.30 pm when a number of those remaining helped clean up the site. 12 The respondent arrived at the function soon after 12.00 and remained until about 6.00 pm. He was drinking beer and soft drink during that time and probably some food. The Tribunal fund that he had consumed "a considerable amount of beer" and was under the influence of alcohol and therefore unable to ride his motorcycle safely when he commenced his journey home. 13 Shortly after 6.00 pm the respondent left Camp Markham on his motor cycle to ride directly to his residence. He turned left into Dampier Road and headed south towards the main gate of the base. The motor cycle veered onto the wrong side of the road and collided with a light pole. The respondent's helmet flew off and he was thrown about twenty metres in the air. He sustained serious injuries including significant impairment of brain function.

Tribunal's decision 14 The Tribunal repeated its finding that attendance by the respondent at Camp Markham was for the purpose of his employment. There was a general understanding within the diving team that members were required to attend, attendance was required and the purpose was plainly work related. 15 The Tribunal found at [58] that the function commenced as a work function and "it remained a work function until the clean-up at about 5.30 pm". Although the numbers of naval personnel in attendance were fewer its essential character remained. It was still an officially approved function at a place of work attended by work colleagues. It is reasonable to infer that work issues were still being discussed towards the end of the function, although those then present were affected by alcohol. After discussing some authorities referred to by counsel the Tribunal referred to the definition of "place of work" in s 4(1) of the Act and found that "in the special circumstances of this application", Camp Markham satisfied that definition. Having found that the true nature of the work related function at Camp Markham did not change until it concluded after the clean-up it followed that it was the applicant's place of work until he departed on his motorcycle. 16 The Tribunal noted that although the respondent was under the influence of alcohol and was thus guilty of "serious and wilful misconduct" because he had suffered "serious and permanent employment" he remains entitled to receive compensation: ss 14(3), 4(13).

Travelling between place of work and place of employment 17 By the end of oral argument it became clear that the critical issue for the Tribunal was whether, at the time the respondent commenced his journey to his home, Camp Markham was his "place of work" for the purposes of s 6(1)(b)(ii), that is to say, in terms of the definition in s 4, whether Camp Markham at that time was a place at which the respondent was "required to attend for the purpose of carrying out the duties of his … employment". 18 Both sides finally accepted that the interruption exclusion (s 6(2)(b)) was not relevant. If at the time the respondent set off on his motor cycle he was not required to be in attendance at Camp Markham then his travel was not within the terms of s 6(1)(b)(ii). On the other hand, if he was so required to be in attendance then the travel started at that point in time, unarguably he was travelling towards his place of residence, and no interruption of any kind occurred before the accident. 19 Counsel for the applicant attacked the Tribunal's findings that the essential character of the function remained and that it continued to be an officially-approved function at a place of work attended by the respondent and his work colleagues. However, this was a matter of fact and degree: Maunder v Commonwealth (1983) 51 ALR 44 at 49, Gregory v Comcare Australia (1997) 72 FCR 196 at 202. 20 I did not understand counsel for the applicant to dispute the finding that at its inception the function was work-related and that the respondent was required or expected to attend it as part of his duties: cf Roncevich v Repatriation Commission (2005) 218 ALR 733 at [23]. Rather, counsel submitted that, at some time before the respondent left, the function ceased to have the character of an officially-approved work function. However, there was ample evidence on which the Tribunal could make the finding it did including:

· Leave was not piped or formally announced during the function;

· There was no evidence of any announcement that the function had concluded;

· Most of the function occurred within normal working hours;

· It was reasonable to infer that work issues were still being discussed towards the end of the function;

· The final clean-up did not occur until about 5.30 pm. 21 Understandably, counsel for the applicant did not submit that the Tribunal was obliged to find that the work-related character of the function ceased on the dot of 3.50 or 4.00 pm. That being so, the applicant's case has to be that the only finding open to the Tribunal was that at some unspecified time after 4.00 pm but (well) before 5.30 or 6.00 pm, and without any announcement or other identifiable event, the character of the function changed. This argument must be rejected. 22 Counsel for the applicant relied on Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473. But, as the Tribunal correctly observed, that case was concerned with quite a different situation, where the worker's injury was sustained in an "interlude or interval occurring within an overall period or episode of work" as distinct from "after the day's work has ceased" (see at 483 and the discussion by Cooper J in Gregory at 200-202). The question in the present case is whether the day's work had ceased before the respondent mounted his motor cycle or, more correctly, whether it was open to the Tribunal to find it had not.

Orders 23 The appeal is dismissed with costs, including reserved costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: P Hanks QC and D Richards