Military Rehabilitation & Compensation Commission v Roberts

Federal Court of Australia|2007-01-08|Before: Madgwick J

REASONS FOR JUDGMENT HIS HONOUR: 1 On 15 December 2006 I delivered judgment in the matter, dismissing the application with costs. I now provide reasons for that decision. 2 This is an appeal from a decision of the Administrative Appeals Tribunal ('the Tribunal') setting aside a decision of the applicant. In lieu of that decision, the Tribunal determined that pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('the Act'), the respondent, Ms Roberts, was entitled to compensation in respect of post-traumatic stress disorder suffered in May 2000. That Tribunal decision was based on and applied an earlier decision of the Tribunal holding that an assault suffered by the respondent in May 2000 was an injury which arose out of her employment by the Royal Australian Air Force ('RAAF'). 3 This case concerns the meaning of the expression 'arising out of … the employee's employment' in the definition of 'injury' in s 4 of the Act, the construction and operation of s 6(1)(a) of the Act, and the sufficiency of the Tribunal's reasons for decision.

background 4 Ms Roberts enlisted in the RAAF in 1997 at the age of 27. In 2000, she was a Leading Aircraft Woman working as a signals operator at the Defence Signals Directorate at Russell, Canberra. She had been officially permitted, although she was not required, to live 'on base', and was free to exercise her discretion as to her living arrangements. At the time of the events in question, she lived at the RAAF base known as RAAF Fairbairn in rented and subsidised accommodation provided by her employer. 5 On 13 May 2000 the respondent was rostered 'off duty'. During the evening she attended an informal social function at the Airmen's Club at RAAF Fairbairn. The people attending the function were wearing civilian clothes and brought their own alcohol to the function. The respondent had some drinks at the function, and left to retire to bed at approximately 11 pm. 6 At approximately 2.30 am on 14 May 2000 the Tribunal found that a man had entered her room uninvited through an open window in her quarters. The intruder indecently assaulted her but later left her room after she demanded that he do so. The respondent had recognised the man as one of her colleagues who lived in the same accommodation block, but in his own quarters across the hall. 7 The respondent reported the incident to military police who conducted an investigation. The man in question was charged with military offences contrary to the Defence Force Discipline Act 1982 (Cth), but was later found not guilty. 8 Ms Roberts suffered from a psychiatric condition as a consequence of the incident in her room and was medically discharged from the RAAF on 28 March 2003. However, she has now resumed full time employment and no longer suffers from that condition.

The relevant Tribunal decision 9 An agreed statement of facts was provided by the parties to the Tribunal. It said: '1. The applicant was born on 12 October 1970. 2. The applicant enlisted in the Royal Australian Air Force ("the RAAF") on 16 November 1997. 3. In the year 2000 the applicant was a Leading Aircraft Woman working as a signals operator at the Defence Signals Directorate at Russell, Canberra. 4. The applicant was living at RAAF Fairbairn in rented accommodation. 5. The applicant was not required to live on base and was free to exercise her discretion as to her living arrangements. 6. On 13 May 2000 the applicant was rostered "off duty". 7. On the evening of 13 May 2000 the applicant attended an informal social function at the Airman's Club RAAF Fairbairn. 8. The people attending the function were wearing civilian clothes and brought their own alcohol to the function. 9. The applicant drank beer at the function and left to retire to bed at approximately 11 pm. 10. At approximately 2.30 am on 14 May 2000 the applicant alleges a male person entered her room uninvited through an open window in her condominium. 11. The applicant alleges the person indecently sexually assaulted her by touching her breasts and genital area. 12. The male person later left her room after the applicant asked him to leave. 13. The applicant recognised the male person as one of her colleagues who lived in the same accommodation block as the applicant but in his own condominium across the hall. 14. The applicant reported the incident to the military police who conducted an investigation. 15. The male person was charged with offences contrary to the Defence Force Discipline Act 1982 ("the DFDA"). 16. On 11 May 2001 the male person was found not guilty of the charges of "act of indecent without consent" and "assault on superior" contrary to section 61 and subsection 25(1) of the DFDA. 17. The applicant suffered from a psychiatric condition as a consequence of the incident described above. 18. On 28 March 2003 the applicant was medically discharged from the RAAF. 19. The applicant has now resumed full time employment and no longer suffers from a psychiatric condition.' 10 Senior Member J W Constance found that the alleged assault had in fact taken place. The Member also noted that the respondent had lived at RAAF Fairbairn under a 'Living In Policy' which had been issued pursuant to s 9A of the Defence Act 1903 (Cth). The Tribunal Member found that at the time of the assault, the respondent was not required to 'live in', but had been granted permission to do so, and that this arrangement was to her financial advantage. 11 The Commission had agreed that the assault fell within the concept of an 'injury' (other than a disease) for the purposes of the Act, on the basis that her psychiatric condition constituted a 'mental injury' within the meaning of par (b) of the definition of 'injury' in s 4 of the Act. The sole question for the Tribunal was whether the assault was an injury 'arising out of, or in the course of' the respondent's employment within the meaning of the Act. 12 The Tribunal Member held that the respondent's injury arose out of her employment. He relied on and sought to apply the decision of the High Court in Roncevich v Repatriation Commission (2005) 222 CLR 115. The Member noted that in that case the fact that a serviceman's accident occurred on a military base after a social gathering was held to be a relevant matter as to whether the event arose out of Defence service. The Member considered that the High Court had adopted a broad interpretation of the words 'arose out of' in a particular section comparable to that to be considered under the Act, and that this broad interpretation was to be applied here. 13 On his application of the Roncevich principles, the Member said that the existence of several factors was sufficient to make the injury and the employment causally connected. They were: · the injury occurred at the RAAF Fairbairn site; · at the relevant time the respondent was living with the permission of her employer, which had been given pursuant to a policy issued by that employer; · in living at the base, the respondent was taking advantage of a financial benefit of her employment offered by her employer; and · the injury was occasioned by another RAAF employee living at RAAF Fairbairn at that time. 14 In reaching that finding, the Tribunal Member relied upon the 'ordinary meaning' of the words used in the definition of 'injury' in s 4 of the Act, namely 'arising out of … the employee's employment'. Section 6(1)(a) of the Act provides an extended definition of 'arising out of' employment, but the Tribunal thought it not necessary to rely on that provision. Nevertheless, the Tribunal found that, had it been necessary to turn to that provision, it would have the effect that the respondent's injury 'arose out of' her employment. 15 The Tribunal Member also found that the respondent's injury occurred in a period between two discrete episodes of work, and therefore could not be said to have arisen 'in the course of' her employment.

legal framework 16 So far as is presently relevant, s 4 defines 'injury' to mean: '…(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment'. 17 Although not an employee in the common law sense of that term, s 5(2) of the Act requires that a member of the Defence Force, such as Ms Roberts, is to be taken for the purposes of the Act 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 …'. 18 Section 6(1)(a) provides that: '(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained: (a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment. …'. 19 Section 14 deals with compensation for injuries, and provides that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

issues on appeal 20 The Commission initially relied upon four grounds of appeal:

it was not open to the Tribunal, as a matter of fact or law, to find that the injury suffered by the Respondent as a result of the assault was an injury which arose out of her employment by the RAAF;
the Tribunal did not give any reasons, or any sufficient reasons, for so finding;
it was not open to the Tribunal, as a matter of fact or law, to find that the injury suffered by the Respondent arose out of the Respondent's employment within the extended meaning of s 6(1)(a) of the Act; and
the Tribunal did not give any, or any sufficient, reasons for so finding. 21 In response to an objection by the respondent, relying on Comcare v Etheridge [2006] FCAFC 27, that the notice of appeal was deficient, the applicant reformulated the questions of law to be determined, in the following way:
Did the Tribunal correctly construe and apply the expression 'arising out of … the employee's employment' in the definition of 'injury' in section 4 of the Act?
Did the Tribunal correctly construe and apply paragraph 6(1)(a) of the Act?
Did the Tribunal discharge its obligation to state reasons for its Decision?

Applicant's submissions 22 The applicant contends, and the respondent denies, that the proper application of the test 'arising out of the … employment' at law involves a consideration of whether, on the facts as found, the employment could be said to have given rise to some increased risk of the respondent suffering injury in the sense that the employment either created such a risk where otherwise there was none, or at least materially increased it. 23 The applicant submitted that the two tests of liability under the Act - 'in the course of the employment' and 'arising out of the employment' - are alternative and separate, though they may overlap. Determining whether an injury 'arose out of employment' will involve a consideration of the ambit of employment, which was said to direct attention to the concept of the 'course of the employment'. 24 The applicant pointed out that the expression 'arising out of' poses a test which is not satisfied by a merely temporal connection. Rather, a causal connection is necessary: Roncevich. So much was common ground. The applicant submitted that the Tribunal had failed to observe and apply this test, and that instead (and erroneously) the Tribunal had treated merely temporal factors as sufficient to establish causation. The applicant argued that no causal connection existed between the respondent's injury and her employment. Relying on March v Stramare (1991) 171 CLR 506, Carslogie Steamship Co Limited v Royal Norwegian Government [1952] AC 292, and Chappel v Hart (1998) 195 CLR 232, the applicant asserted that a causal connection between 'employment' and 'injury' can only exist when some aspect of the employment can properly be said to have increased the risk of the injury being sustained. Temporal factors which merely secure the presence of the claimant at the place where, or at the time when, he or she is injured are not enough to forge a causal connection with the injury without that increase in risk: March v Stramare per Mason CJ at 516.5. That doctrine, adopted for tortious liability also applies in workers' compensation cases: the test is the same. In Migge v Wormald Bros Industries Limited (1972) 2 NSWLR 29 at 44, in a judgment endorsed by the High Court on appeal, see Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236 per Barwick CJ, McTiernan, Menzies, Gibbs and Stephen JJ), Mason JA said: 'Moreover, the expression takes up the concept of causation as it is known to the law, without seeking to modify it. In Baker v Willoughby in an opinion which commanded the assent of a majority of the House Lord Reid said that causation in tort does not differ from causation under the workers' compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasized repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.' (References omitted.) I note that the question in Migge was one of whether an injured worker who decided to undergo an operation against medical advice had thereby introduced a novus actus interveniens so as to break a causal chain of claimed incapacity necessitated by the relevant statutory phrase: 'results from'. 25 In light of these authorities, the applicant argued that it was incumbent upon the Tribunal to ask itself, and answer, the following question: did any of the four factors identified by the Tribunal separately, or in combination, increase the risk of the respondent being injured? The Tribunal had not asked itself this question, as demonstrated by the absence of any reasoning directed to that topic in the 'Reasons for Decision'. Rather, the Tribunal identified temporal factors which merely secured the presence of the respondent at the place where, and at the time when, she was injured. The applicant argued that, however broad an interpretation is given to the words 'arising out of', they still pose a test of causation which is not satisfied by merely temporal connections (of time and place). 26 The applicant submitted that the four factors relied upon by the Tribunal were simply contextual factors which helped explain the time and place at which the respondent sustained her injury. Those factors would have been rendered wholly immaterial had the respondent decided to go away from the base for the time she was rostered off. While, in one sense, it may be true to say that, were it not for the respondent's employment she would probably never have met the assailant and would not have been living on the RAAF Fairbairn base etc, and so may never have sustained the particular injury in question, the 'but for' test has been decisively rejected as a reliable test of causation, in favour of common sense. Thus, while it was conceded that, but for the respondent's decision to stay on the RAAF Fairbairn base during her rostered time off, she would not have been injured at that time and place, as a matter of common sense causation, that decision could not be regarded as causally related to the employment nor to the injury itself. 27 Counsel argued that the true basis for the Tribunal's finding that the respondent's employment caused her injury arose from only two factors: first, that she and another employee were permitted to live on the RAAF Fairbairn base; and second, that the injury occurred on the base as a result of the actions of that other employee. Thus, although the Tribunal purportedly identified four relevant factors, all four related to 'living on Base'. 28 The applicant also distinguished Roncevich. The army base where the accident occurred in Roncevich was also the veteran's place of work, RAAF Fairbairn was not the respondent's place of work. The social function the respondent attended was not work-related, whereas in Roncevich it was. Unlike Roncevich, the respondent consumed no alcohol supplied or subsidised by the RAAF at that social function. Similarly, in the present case, there was no expectation on the part of the RAAF that the respondent consume alcohol at that social function, let alone to the point of intoxication - such an expectation existed in Roncevich. Finally, in the present case, and unlike the circumstances in Roncevich, the respondent's injury did not occur in the course of a momentary break in attending to work-related matters. Rather, she had not worked the day before and she was not rostered for duty the next day. 29 The applicant argued that in Roncevich, the High Court had in fact, though sub silentio, considered that various work-related factors could properly be regarded as having increased the risk of injury particularly Mr Roncevich's work-induced intoxication. Those employment factors were not mere ingredients in the context (or scene-setting) of the serviceman's injury. So much could be seen from the following : · the High Court emphasised that to satisfy the 'arising out of the … employment' test connection between employment and injury must be a causal one; · in context, the Court used the word 'temporal' of or denoting time or time and space'; · the Court had really considered that it was open to conclude that Mr Roncevich's injury 'arose out of or was attributable' to defence service because such service materially increased the risk of injury by entailing that Mr Roncevich had to iron his uniform for the next day; and · Roncevich is consistent with the causal factors being confined to work-related factors which increased the risk of injury. 30 In the alternative, the applicant submitted that, if the Court should take the view that the Tribunal had not conflated temporal and causative factors, the Tribunal had failed to give any reasons as to why the four factors which it relied upon were regarded as having increased the risk of injury to the respondent. 31 As to s 6(1)(a), the applicant maintained that the 'but for' test there set out remains a test of causation (rather than temporal connection) when applied to injuries occurring otherwise than in the course of employment. In reliance on Kennedy v Telstra Corporation (1995) 61 FCR 160, counsel submitted that the 'but for' test has to be applied 'practically and in a commonsense way'. Furthermore, it was submitted that the Tribunal also failed to provide any reasoning in support of its finding that the 'but for' test contained in subsection 6(1)(a) of the Act was satisfied. 32 The respondent's reliance upon cases such as Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 and Military Rehabilitation and Compensation Commission v Clark [2006] FCA 306 was said to be misconceived because those cases dealt with 'in the course of employment' rather than 'arising out of employment', and in any case, were concerned with injuries which occurred in an interval or interlude within an overall period of work, rather than in intervals between such periods, as here. The respondent's reliance upon Repatriation Commission v Tuite (1993) 39 FCR 540 and Military Rehabilitation and Compensation Commission v Wall (2006) 88 ALD 1 was said to be misplaced as those cases concerned factors/incidents which occurred in the course of employment and which were held to have actually influenced the self-harming behaviour (smoking) which led, in turn, to injury. Furthermore, the respondent's reliance on Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 was also said to be misplaced because it deals with 'a different problem in causation'. Finally, the decision in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 was said to support the applicant's, rather than the respondent's, case. 33 In Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165 Judge Neilson reviewed the authorities and confirmed that the review indicated that a temporal connection between the place of employment and an injury (described in one case as a 'locality' injury), in the context of assaults between co-employees, is insufficient to establish a causal connection. 34 Following the conclusion of the hearing, the applicant produced further supplementary submissions as to s 6(1)(a). 35 First, the applicant noted that s 6(1)(a) had no equivalent in any other workers' compensation legislation ever in force in Australia, with the exception of s 9(2) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth). 36 The applicant asserted without contradiction that there was nothing in the Explanatory Memorandum which shed light on the meaning of s 6(1)(a). However, the Minister's Second Reading Speech was said to be of assistance. On the basis of the examples referred to by the Minister as illustrative of the coverage of the provision - including acts of violence - the applicant submitted that s 6(1)(a) must be applied as a test of causation. 37 The only cases dealing with s 6(1)(a) are Kennedy and Schmid v Comcare (2004) 77 ALD 782. In Schmid, Weinberg J took a similar approach to that of Tamberlin J in Kennedy. His Honour considered that it could not have been Parliament's intention that the 'but for' test should be construed literally: a degree of 'proximity', going beyond temporal connections of time and place, was required under s 6(1)(a). This approach was said to be consistent with that taken by McMahon D P in Re Mulligan and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1995) 36 ALD 699. 38 In the present case, for reasons earlier addressed, the facts established merely a temporal connection falling short of a causal nexus. Further, the Tribunal had failed properly to appreciate the need for a causal nexus. All of the four temporal factors upon which the Tribunal relied could apply equally to different scenarios which could hardly have been intended by Parliament to attract compensability. Counsel gave as an example the supposition of an injury to Ms Roberts at the same time and place resulting from 'a temper tantrum thrown by a colleague in the course of a private argument'. 39 In any case the four temporal factors relied upon by the Tribunal were wholly incapable of supporting a finding that, but for those four factors, the respondent would not have been assaulted. No other factors were identified by the Tribunal in its application of the 'but for' test under s 6(1)(a).

Respondent's submissions 40 The respondent firstly asserted deficiencies in the notice of appeal said to arise from its failure to raise a question of law, as distinct from an invitation to the Court to enquire into the construction and operation of a statutory provision. 41 As to the supposed failure of the Tribunal to give sufficient reasons (see [26]), the respondent argued, in reliance on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, that supervisory courts should exercise due restraint before finding errors as to the manner in which a Tribunal has framed its reasons for decision. It was said that a high threshold needs to be met before a Tribunal's reasoning process is deemed to amount to an error of law. 42 In answer to the 'increased risk' argument, the respondent argued that is sufficient if a causal nexus does in fact exist between the work and the injury, regardless of whether or not it increased the risk of the injury. The respondent accepted that the phrase 'arose out of' is a formula importing the notion of causation, but contended that findings as to causation involve questions of fact, rather than questions of law. 43 Even if findings as to causation involve questions of law, the respondent argued that the two notions 'arises out of' and 'in the course of' are not mutually exclusive, and in fact have substantial overlap. Generally speaking, anything occurring in the course of employment will also arise out of it: Commonwealth v Oliver (1962) 107 CLR 353 per Dixon CJ at 357. 44 This overlap was said to be significant in light of the High Court's decision in Roncevich, Hatzimanolis and Danvers. However, the latter two cases are both akin to 'camping out' cases. They turned on the application of the 'in the course of the employment' test. No question arises before me as to that conception in the present case. 45 Here, the respondent was entitled to apply to live on base as a term and condition of her employment, and it was financially beneficial for her to do so. The respondent argued that, by this financial inducement to her, the RAAF thereby 'invited' or 'encouraged' her to take up the option, such that her case was not materially distinguishable from Danvers where a peripatetic railway worker was free, but it was not practicable, for him to reside other than in the railway van provided. 46 The respondent asserted that whilst living on base she was 'no doubt' subject to military discipline. This element and the fact that the injury occurred on the base, were factors identified by the High Court in Roncevich as relevant to the finding of a causal nexus. The significance of these matters must, I think, be conceded as tending against the applicant's asserted 'increased risks' requirement. I note that there was, however, no finding about military discipline here, nor was there any exploration of the military instruments which might, as a matter of law, have settled the matter. 47 The respondent relied on Tuite as authority that there is no need for a claimant to show that the incidents of service life materially increased the risk of the particular injury. Davies J said at 542: 'If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury …, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere … . The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease'. However, in Tuite the Court acknowledged that there is a distinction between the operative cause of an injury and the mere provision of a setting for it. 48 Similarly, in Wall, a majority in the Full Court rejected the contentions espoused by Gyles J (relying on O'Brien v Commonwealth of Australia (1967) 117 CLR 66 at 77) that an applicant must show a risk 'additional to and different from those … in normal circumstances …' and a necessary causal connection with the performance of the actual duties of a serviceman or 'whatever was incidental and ancillary to the performance of those duties'. (It had been common ground in the case that the Tuite distinction between cause and setting needed to be made.) 49 The decision of Heerey J in Clark was said to be a helpful example of a case where the attendance of a service person at a social function which he was expected to attend but which was not within his duties was deemed to be within the course of the employment. The relevance of this to 'arising out of' is not especially clear. 50 Counsel pointed out that the legislature has expressly introduced a statutory concept of increased risk of injury where thought appropriate: s 6 excludes from the journey provisions, injuries on journeys by indirect routes 'that substantially increased the risk'. That express reference was said to tell against its being implicit in the concept of 'arising out of or in the course of …'. 51 The respondent sought to deny that the 'but for' test in s 6(1)(a) should be read down at all. Counsel pointed out that a 'but for' test is used elsewhere in the Act to augment employees' or their dependents' entitlements. 52 At a late stage, the respondent's counsel drew the Court's attention to another statute. The present case concerns a former military person whose rights are regulated by the Act. However, for injuries sustained after 1 July 2004, the Act no longer regulates the compensation rights of injured military. Instead, the Military Rehabilitation and Compensation Act 2004 (Cth) ('Military Compensation Act') performs that role. Under the Military Compensation Act, entitlement to compensation depends (among other things) on establishing a 'service injury' or 'service disease' as defined in s 27. That section is framed in terms similar to those used in the definition of 'injury' in the Act. Specifically, s 27 refers to an 'occurrence that happened … in service' and 'arose out of'. As with the Act, s 27 then singles out certain events and applies a 'but for' test to them: see s 27(c). The Military Compensation Act was enacted after the decisions in the various authorities cited by the applicant. The respondent argued that, had Parliament wished to apply a read-down 'but for' test in the light of authorities relied upon by the applicant, it would not have re-enacted the 'but for' test unchanged in the Military Compensation Act, and the Court may infer that there was no statutory intent in the Act for the 'but for test of s 6(1)(a) to mean anything other than what it says. 53 The respondent pointed, after the close of submissions, to the decision of Cowdroy J in Coward v Military Compensation and Rehabilitation Service [2006] FCA 840 in which, in obiter dicta, his Honour took an expansive view of the scope of military service in the context of living in barracks.

Question of law 54 It is a question of law whether there is any evidence sufficient to find that a statutory test of the kind here in question has been complied with. This is not a case of ordinary words with a plain meaning but of a compound statutory concept employing what have become terms of legal art, or something close to them: Roncevich at 123. The revised questions of law are adequate to engage the Court's jurisdiction. Had my conclusion been different, I would have reformulated them a little before answering them.

'Arising out of …' 55 Counsel for the applicant ably made a respectable argument as to the meaning of the phrase 'injury … arising out of … the employee's employment'. In the view I take it is neither necessary nor desirable that I resolve that question to finality. I am however inclined, on a tentative basis, to think that the requirement asserted by the applicant that the employee must show some elevation of the risk of the injury sustained, which elevation must result from the employment, is mistaken and that it is enough that there can be shown, as a matter of common sense, some substantial link or connection with the employment which is causal and not merely temporal. Among other things, some of the matters regarded by the High Court in Roncevich as relevant to the 'arising out of … test' were not, it would seem, of any notable relevance to a restricted view of causation, such as that urged by the applicant, but were relevant to the less restrictive view I am inclined to favour. Questions might, however, possibly arise as to whether the test so stated could, as a matter of law, be satisfied by the matters to which the Senior Member referred. 56 Roncevich is, as the applicants argued, clearly distinguishable on the facts of the present case. The 'in the course of the employment' test was not available in that case. It might be thought that its facts would readily fit within such a conception. Such a factor may well assist to provide evidence also of a causal, as well as a temporal link. 57 It must be acknowledged that, on the scant known facts, this case would, if it fits at all within the meaning of 'arising out of ….', without its s 6(1)(a) extension, sit at the very margins of the concept. 58 It is unnecessary to proceed further down that track because, in my view, for the reasons I give below, s 6(1)(a) compels the rejection of the applicant's case. It is undesirable to do so because many potentially relevant facts appear not to have been elucidated, for example: How long was Ms Roberts' posting in Canberra? To what extent was there any real advantage to the military in having her quartered where she was? What was the extent of any encouragement by the RAAF for her to live on the Base as distinct from elsewhere? Had her assailant become drunk at the Base 'Club'? Was the 'Club' organised by the Air Force? Were personnel smiled on, as in Roncevich, for drinking heartily or even more than that? Was the assailant, on that account, affected by liquor? Did disinhibition by liquor account for his behaviour? Was the respondent, on account of a RAAF-tolerated drinking culture, so affected? If so, did the influence of alcohol lead to any lack of care by her as to providing, unwittingly, the opportunity for her assailant to intrude upon her by leaving her window open on a May night in Canberra? Was she, at the time, subject to military discipline? Why was the matter solely investigated in a military context without calling in the civilian police? The answers to questions like these may have assisted one party or the other notwithstanding that, apparently, they were not forensically elucidated by either party for the Tribunal's benefit.

Section 6(1)(a) 59 It is unnecessary to deal with the applicant's major submission because, in my opinion, the Senior Member's alternative basis for his conclusion, namely reliance on s 6(1)(a), is not shown to be affected by any error of law. 60 The relevant statute is certainly beneficial to employees and the enactment of the statutory 'but for' test by s 6(1)(a) must, being ambiguous, be construed to 'give the fullest relief which the fair meaning of its language will allow', as Isaacs J put it in Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384. A fair meaning will, however, not be one arrived at by straining language or exceeding its reach, nor will it be one that results in absurdity ex facie or an anomalous result, clearly shown: Esso Australian Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511 at 518-19 and 565-6. 61 In that sense, a 'commonsense or practical' approach (per Tamberlin J in Kennedy) or a requirement for some degree of 'proximity' (per Weinberg J in Schmid) may be necessary to confine the unbounded logical possibilities of a 'but for' test within limits that may be imputed to the legislature as acceptable. Courts must take care however, lest in the guise of avoiding a construction that would result in a clear anomaly, they try to rewrite a legislative provision closer to their own, and possibly highly contestable, views of what would be a fair and 'common sense' law to deal with the subject at hand. 62 In any case, to my mind, as I infer to the Senior Member's, it is clear that s 6(1)(a) was intended to have a generous application where a Commonwealth employee is injured by a violent act. That is shown, apart from the very use of the wide test notoriously inherent in the expression 'but for', by the apparently exhaustive inclusion of the ways of conceiving what might be the original and crucial, employment-related circumstance: the 'employee's employment', his/her performance of the 'duties', or the 'functions' of the employment. It remains true that the concept of 'but for' implies, indeed is synonymous with, some kind of causal connection. 63 Thus understood, there is nothing either absurd nor anything that can confidently be called anomalous about the result reached. It is to be inferred that, at least to some extent, it was in the interests of both the respondent and the military that she reside at the Base provided by the latter. The RAAF provided quarters there for young service men and women in close proximity. The Air Force provided living quarters for a female officer which could be entered, according to the filed material, by an intruder apparently simply removing a fly screen. It is certainly true that, 'but for' these and the other specific matters mentioned by the Tribunal, Ms Roberts would not have been injured. Some degree of causal connection exists. Moreover, I am unable to think that Parliament could not have intended that in such circumstances a female employee, sexually assaulted by a fellow employee, should be regarded as falling within the protection of s 6(1)(a). Parliament has clearly used language that could encompass that result. There is an evident generosity of approach towards employees injured by violent acts. 64 If, which I doubt, it is necessary to distinguish the example given by the applicant of Ms Roberts' circumstances, and an injury occurring then and there in the course of a private dispute, it is not, in my opinion, difficult to do so. The employer has no interest in an injured employee engaging in a private dispute. The employer who subsidises convenient accommodation does however, have an interest in the employee ordinarily utilising such accommodation and in being securely and comfortably accommodated there, from the enjoyment of which accommodation the employee will be suitably re-invigorated, to perform his or her actual duties. All Ms Roberts was doing was sleeping and enjoying the benefits of the accommodation which the employee had made it financially advantageous for her to use. She was doing what her employer envisaged and expected she would do. She was in no sense behaving in such a way that it would be anomalous to say that ensuing violence would not have recurred 'but-for' the employment.

Adequacy of reasons 65 In my opinion the Tribunal Member sufficiently made clear his reasons for his decision. That is all that is required: Yusuf. 66 Certainly the reasons as to s 6(1) (a) were very brief. The brevity of the reasons might possibly ground a view that some relevant factor was not taken into account. Such however has not been shown. It is implicit in the Tribunal Member's negating of 'in the course of' that he well understood that some causal element needed to be shown and that 'but for' imports the notion of causality, as a matter of ordinary English. It is not shown that the Tribunal Member did not appreciate that s 6(1)(a) should be applied so as to avoid frank absurdity on the face of the statute or a clearly anomalous result. 67 The attack fails.

Disposition 68 Accordingly, the application must be dismissed with costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 8 January 2007 Counsel for the Applicant: T Howe

Instead, the Military Rehabilitation and Compensation Act 2004(Cth)

(1998) 16 NSWCCR 165

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (21)

Cited By (2)