Roncevich v Repatriation Commission

THE LEGISLATION 8 Section 70(1) of the Act provides for the Commonwealth to be liable to pay a pension by way of compensation to a member of the armed forces if that member suffers incapacity from a "defence-caused injury or a defence-caused disease". Section 70(5) relevantly provides: "For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if: (a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member; … (c) the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or (d) the injury or disease from which the member died, or has become incapacitated: (i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or (ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or …" Attention is directed to s 70(7) by s 70(5)(c). It provides: "(7) Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service; (a) if the incapacity of the member was due to an accident - that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or (b) if the incapacity was due to a disease - the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act." 9 Section 120 deals with the standard of proof. As the applicant's claim in respect of the left knee injury did not relate to "operational service" as defined, or to "peacekeeping service" or "hazardous service" as defined, s 120(4) directs the Tribunal on review to decide the matter to its reasonable satisfaction. Section 120(4) is affected by s 120B, which applied to the present claim: s 120B(1)(b). Section 120B(3) directed the respondent, and on review the Tribunal, to be reasonably satisfied that the left knee injury was defence-caused only if: "(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) or (12); or (ii) a determination of the Commission under subsection 180A(3); that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service." 10 There was in force at material times a Statement of Principles in force concerning Internal Derangement of the Knee (Instrument No 60 of 1997) determined by the Repatriation Medical Authority under s 196B (the relevant SoP). The respondent accepted that the relevant SoP upheld the contention that the left knee injury, on the balance of probabilities, can be related to defence service. The relevant factor which cl 5 of the relevant SoP required to exist is that in cl 6(a), namely direct trauma to the left knee within six months before the clinical onset of the condition. 11 The respondent's opposition to the claim before the Tribunal was simply that the left knee injury had no connection with the applicant's defence service in the circumstances.

THE TRIBUNAL'S DECISION 12 The Tribunal's decision is quite brief. It found that the applicant was not required to live on Holdsworthy Barracks, but chose to do so. It concluded that the applicant attended the Sergeant's Mess on the evening of 27 February 1986 to socialise with fellow NCOs. It described the situation as being "no different to what they might have done, had they decided to go to a hotel away from the Base". It concluded: "The only links between the Army and the intoxication of Mr Roncevich were that the intoxication occurred on an Army Base and that Mr Roncevich and his fellow drinkers were soldiers. The intoxication was not caused by, nor did it arise out of any task that Mr Roncevich had to do as a soldier, nor did it arise out of his defence service, nor did it occur in the course of his defence service." Hence it concluded the left knee injury was not "defence-caused" under s 70 of the Act because it did not arise out of his defence service and was not attributable to his defence service, nor was it due to an accident that would not have occurred but for the applicant having rendered defence service.

CONSIDERATION 13 The applicant first contends that the Tribunal erred in law in determining that the applicant's attendance at the social function in the Sergeant's Mess on 27 February 1986, and his consumption of alcohol at the function, was not sufficiently connected with his defence service as to bring the left knee injury within s 70(5)(a), namely that it arose out of or was attributable to his defence service. 14 The applicant's evidence in his statement was that he was required by his superior officer, the Regimental Sergeant Major Colin Lee (RSM Lee), to attend the social function on that evening, particularly because it was a special function to entertain a senior RSM. RSM Lee provided a written statement that on occasions when a special dignitary visited the mess, it was "expected" that persons such as the applicant who lived on the base would attend "simply because they did not have to drive home", and in some cases attendance was compulsory. Later in his statement RSM Lee said that consumption of alcohol at such functions was permitted because the attendees were not on duty. 15 The error of law asserted is the alleged failure on the part of the Tribunal to find on the evidence that the applicant was obliged to attend the particular function, so that the left knee injury arose out of his defence service because his fall was caused by, or that a cause of his fall was, his consumption of alcohol at the function. 16 The Tribunal made a different finding, namely that the applicant's attendance at the function and his excessive consumption of alcohol at the function was not related in any relevant way to his defence service. It found his attendance at the function was a matter for the applicant, as was the extent of his alcohol consumption. 17 In my view, those findings were clearly open to the Tribunal. When the fall was reported to a medical officer, it was recorded that the left knee injury occurred in "domestic" rather than "work-related" circumstances. In his evidence to the Tribunal, the applicant said the social function was not a special one, but it is traditional to make a visitor to the base welcome. RSM Lee told the Tribunal the function was an informal gathering, so those attending could leave if they wished and could choose whether to drink alcohol and if so to what extent. He repeated that those attending the function were not on duty, so that they were permitted to drink alcohol in the mess, and those who did drink alcohol should not then return to work, even though any serving member of the army could technically be called on to duty at any time. His evidence to the Tribunal as previously constituted was in a few respects a little different. However, in my judgment, the Tribunal's conclusions that the applicant was not performing defence service by attending the function was a finding available to it on the evidence. The applicant at one point suggested that he was on duty twenty-four hours a day, seven days a week, but he later resiled from that position to indicate that he had fixed hours of duty (varied from time to time) and, like other members of the army, was also liable to be called on to duty on short notice. Indeed, it is only consistent with the evidence of both the applicant and RSM Lee that, because the applicant consumed alcohol at the function, the applicant was not on duty at the time. 18 I also do not consider that the Tribunal erred in law in concluding, on the basis of its primary findings of fact, that the applicant's left knee injury did not arise out of his defence service and was not attributable to his defence service. Whether the left knee injury arose out of the applicant's defence service depends upon whether there is a causal connection between the defence service and the incapacity from the left knee injury: see e.g. per Davies J in Holthouse v Repatriation Commission (1982) 1 RPD 287 at 288. The connection need not be the sole or dominant or prominent cause of the injury; it is sufficient if it is a contributory cause or connection. In Repatriation Commission v Law (1980) 147 CLR 635 Aickin J (with whom Gibbs CJ, Stephen and Mason JJ agreed) at 649 said the natural meaning of the words then under consideration (in ss 101(1)(b) and 101(1A) of the Repatriation Act 1920 (Cth)) was to point to a causal connection rather than a temporal connection between the defence service and the injury or disease. The words there under consideration were relevantly to the same effect as those in s 70(5)(a) of the Act. If the cause of the injury is the personal or domestic activities of the claimant, and the defence service provides no more than the circumstances in which the cause operated, then the injury does not arise out of, and is not attributable to, defence service: see e.g. per Denning J in Wedderspoon v Minister of Pensions [1947] 1 KB 562 at 563 - 564. 19 In this instance, I do not consider that the Tribunal has misconceived or misapplied the law in determining whether, under s 70(5)(a), the left knee injury arose out of or was attributable to the applicant's defence service. It had regard to the relevant evidence. It made findings of fact as to the nature of the activities the applicant was engaging in when he attended the social function on 27 February 1986. I have concluded those findings of fact were open to it. It did not misunderstand the evidence of RSM Lee. It then applied the law to those facts to decide whether the applicant's left knee injury arose out of or was attributable to defence service. 20 The applicant contended that the Tribunal had erred in law by failing to consider whether defence service was a cause of the left knee injury. No particular passage of the Tribunal's reasons was identified as suggesting that it misdirected itself by approaching his claim that there could be only one, or one relevant or dominant, cause for the left knee injury. The Tribunal recorded the claim that the applicant attended the social function through some service-related "moral obligation" so that his defence service was a cause of the left knee injury. It recorded the claim that the applicant was on duty at the time he suffered the left knee injury because he was on 24 hour call. It rejected both those claims in its findings of fact. In my view, its approach does not demonstrate the error of law asserted. Its conclusions reflect the sort of approach adopted by the majority of the High Court (Dixon CJ, Williams, Webb and Kitto JJ, with whom McTiernan J agreed) in Goward v The Commonwealth (1957) 97 CLR 355, and by Davies J in Holthouse. In Goward, unlike the applicant's position in this matter, the deceased worker was effectively required to live at a work camp and the accident causing this death occurred when he was struck by a train whilst crossing a railway line near the camp. Their Honours said at 364: "The question is one of cause, but it is not enough to point to antecedent situations in the absence of which there could not have been an accident of the description involved. It is correct no doubt that if the camp had not been near a railway and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident." In Holthouse, Davies J upheld the Tribunal's decision that injury caused by the moving of a pot plant at his home in anticipation of transfer to a naval base did not arise out of nor was attributable to the claimant's defence service. His Honour at 289 described the decision as one on the facts which probably involved no point of law, but then went on to agree with the conclusion reached by the Tribunal. Of course, those cases are distinguishable on their facts, but in my view they indicate a consistent approach on the question of principle.

21 It was also argued that the Tribunal had erred in law simply because it did not conclude, by reference to the applicable Statement of Principles, that the applicant's left knee injury was defence-related. Counsel for the applicant tendered two further Statements of Principles, each concerning osteoarthrosis. One was Instrument No 337 of 1995, in force (if relevant) at the time of the application for a pension for incapacity in respect of the left knee injury, and the second was Instrument No 82 of 2001 in force (if relevant) at the time of the Tribunal's decision. It was unclear to me why those instruments were tendered. They are not, in their terms, applicable to the left knee injury. The relevant SoP to which the delegate of the respondent and the Veterans' Review Board had regard was clearly the relevant SoP. 22 The Tribunal did not address the relevant SoP, as it was unnecessary to do so. The respondent acknowledged before the Tribunal that, applying the relevant SoP, the hypothesis of a connection between the applicant's defence service and the left knee injury was upheld. But that did not mean the Tribunal must be reasonably satisfied that there is a connection between the applicant's defence service and the left knee injury: see s 120(4) and s 120B(3)(a) for the purposes of s 70(5)(a). Indeed, elsewhere in his written submission the applicant accepted that the Tribunal was required to inquire into whether the defence service was in fact a contributing factor to the left knee injury. 23 I reject any contention that the satisfaction of s 120B(3)(b) by the left knee injury meeting one of the factors hypothesised in the relevant SoP is a sufficient finding to entitle the applicant to a pension under s 70(1) by reason of s 70(5)(a). Allsop J (with whom Emmett J agreed) in Repatriation Commission v Gorton (2001) 110 FCR 321 at 335, [58] - [59] explained the nature and function of Statements of Principle under the Act in terms with which I respectfully agree. Their nature and functions do not relieve the decision maker from the task of addressing whether the connection contemplated by s 70(5)(a) between defence service and injury or incapacity is made out, having regard to the onus of proof direction in s 120, relevantly in this matter s 120(4), informed to the extent applicable by s 120B. 24 The second ground of appeal attacked the Tribunal's consideration of the applicant's claim under s 70(5)(c) and s 70(7) of the Act. In effect, the contention is that the Tribunal erred in not concluding that the left knee injury was deemed by s 70(7) to be defence-caused because the fall would not have happened but for the applicant having rendered defence service. The contention asks rhetorically why, in the light of the applicant's evidence that he was required as part of his defence service to attend the mess function on the evening of 27 February 1986, including "seemingly accepting that the function involved the consumption of alcohol", the activity of drinking alcohol at the function was outside his defence service. Attendance at the social function, and the consumption of alcohol, were said to be "part and parcel" of the applicant's defence service. The final step in the argument is to contend, as the Tribunal appears to have accepted, that the fall from the window would not have occurred but for that activity. 25 The short answer to the submission, in my view, is that it does not reflect the Tribunal's findings of fact, and its findings of fact are not shown to have been erroneous. I have referred to the Tribunal's findings at [16]. It concluded the applicant had ceased duty in the afternoon of 27 February 1986, and had then chosen to attend the function unrelated to his defence service duties, and that the function at the mess might equally have been held off the base. The Tribunal did not accept the applicant's claims that he was obliged to attend the function, and to consume alcohol, as part of his defence service. 26 At one point, counsel for the applicant contended that the left knee injury fell within s 70(5)(c) and s 70(7) because the left knee injury would not have occurred but for changes in the applicant's environment consequent upon his having rendered defence service. A similar suggestion was put during the hearing before the Tribunal, but questioning by the Tribunal led to the explanation that the "environment" referred to is the social milieu among sergeants living on barracks, that is the social pressure of participating in gatherings at the mess. No other "environment" was suggested. I think the contention, so expressed, is but a different way of expressing the claim based upon s 70(5)(c). It does not allude to any evidence of, or a claim made that there was, a change in the applicant's environment consequent upon his having rendered defence service. No such change was suggested by counsel for the applicant. 27 Finally, in relation to this ground of appeal, the applicant sought to invoke in aid s 196B(14) of the Act, and to contend the Tribunal had failed in law to find in favour of the applicant by reason of s 196B(14) of the Act. Section 196B sets out the functions of the Repatriation Medical Authority (the Authority). Section 196B(2) prescribes the circumstances in which the Authority must determine a Statement of Principles setting out, inter alia, the factors that must as a minimum exist, and which of those factors must be related to service, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of a particular kind with the circumstances of that service. There are complementary provisions in subs 196B(3) - (11). Section 196B(14) defines when a factor causing, or contributing to, an injury, disease or death is "related to service" as that expression is used in subs 196B(2), (3) and (11). I do not consider it alters, or is intended to alter, the primary provisions by virtue of which an entitlement to a pension for incapacity under the Act is specified. That entitlement, for present purposes, is determined under s 70(1) and s 70(5) of the Act, applying the relevant onus of proof as expressed in s 120(4) and as then applied in accordance with s 120B and the relevant Statement of Principles. Thus, not surprisingly, s 196B(14)(b) and s 196B(14)(e) as applicable to the Authority in performing its functions under s 196B mirror in practical terms s 70(5)(a) and ss 70(5)(c) and (7). 28 Moreover, the relevant SoP leaves open the factual question whether the factor found to exist and upon which, on the balance of probabilities, the left knee injury can be service related is in fact service related. Clause 5 of the relevant SoP is referred to in [10] above. Clause 4 of the relevant SoP provides that at least one of the factors set out in cl 5 (in this instance, direct trauma to the left knee) "must be related to any relevant service rendered by the" applicant. It leaves that question of fact to be determined. Section 196B(14) then explains what is meant by that expression. It is expressed in terms which then require consideration, in this instance, of s 70(5)(a) and s 70(5)(c) and (7). That is what the Tribunal did. In my judgment, its approach was not an erroneous one. 29 The third and fourth grounds of appeal assert that the Tribunal erred by not applying the provisions of s 119(f), (g) and (h) by failing to give a sufficiently beneficial construction to s 70(5)(a) and (c) of the Act. Section 119 provides relevantly that the respondent and the Tribunal, in considering a claim under the Act: "The Commission: (f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just; (g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and (h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to: (i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and (ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities." 30 In Grundman v Repatriation Commission [2001] FCA 892 at [33], Gray J said: "This leaves the argument based on s 119(1)(g). Counsel for the applicant suggested that the requirement to act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities, in some way required the AAT to take a more benevolent view of the applicant's case than it would otherwise have done. This argument has been put many times. It has been rejected just as many times. Examples are gathered in the judgment of Wilcox J in Kumar v Immigration Review Tribunal (1992) 36 FCR 544 at 554 - 556. To them might be added Repatriation Commission v Flentjar (1997) 47 ALD 67, at 72 - 73 in which Spender J cited Thanh Phat Ma v Billings (1997) 142 ALR 158 at 164, before pointing out that s 119 does not permit the tribunal to disregard the statutory criteria for the grant of a pension at the special rate. It cannot be suggested that s 119(1)(g) is intended to provide an easy route to a favourable decision for a veteran, any more than it could be suggested that the provision was intended to provide such an easy route for the Repatriation Commission. The argument should be put to rest entirely." I respectfully agree with his Honour. I think those comments are equally applicable to s 119(1)(f) and (h) of the Act.

31 In my judgment, the Tribunal is not shown to have erred in the manner asserted. 32 The fifth ground of appeal concerns the adequacy of the Tribunal's reasons for its decision. It is asserted that the Tribunal's reasons do not satisfy s 43(2B) of the Administrative Appeals Tribunal Actbecause they do not set out the relevant evidence and other materials on which its decision was based, including why it did not address the relevant SoP, or why it did not accept that the left knee injury of the applicant was service based. 33 In Commonwealth v Smith (1989) 18 ALD 224 at 225, von Doussa J said: "… the Tribunal does not fail to comply with s 43(2B) if it omits to make an express finding about a material fact which was not in issue because it was conceded, expressly or impliedly by the way in which the case was conducted. Similarly the Tribunal does not fail to comply with the section if it omits to discuss a contention of a party which has no relevance to the process of reasoning leading to its decision." In this matter, the respondent acknowledged before the Tribunal that the left knee condition of the applicant arose out of the fall from the window. There was no issue that the applicant satisfied one of the factors that must exist before it could be said that, on the balance of probabilities, his left knee injury is connected with his defence service, so that on sound medical-scientific evidence the Authority is of the view that it is more probable than not that the left knee injury could be related to the applicant's defence service. The real issue was whether the relevant factor, namely the fall, was in fact related to the applicant's defence service. That issue was identified and addressed by the Tribunal.

34 In my judgment, the Tribunal's reasons adequately set out the reasons for its decision, including its findings on material questions of fact and a reference to the evidence on which those findings were based, including the parts of the evidence of RSM Lee which it accepted. It referred to certain evidence of the respondent. It made its findings on the basis of that evidence. It identified the issues it was required to address. It set out its conclusion. It explained why it reached that conclusion. It was not necessary also to refer to the relevant SoP because there was no dispute that, in accordance with the relevant SoP the fact that a fall could result in the left knee injury and could be service related was not an issue. The issue it addressed was not resolved by the relevant SoP, namely whether in fact the fall on 27 February 1986 was defence-caused. 35 The final ground of appeal was that the Tribunal failed to address, and apply, s 70(5)(d) of the Act. In my judgment, that ground of review must fail. The provision contemplates a claim that the left knee injury was aggravated by defence service after it was first suffered on 27 February 1986, so as to contribute to the current incapacity as a result of the left knee injury. Such a claim was not made to the Tribunal, either initially or in the decision presently under review. 36 The transcript of the hearing before the Tribunal on 24 April 2002 indicates that the applicant's claim in respect of the left knee injury was confined to whether the fall incident on 27 February 1986 brought the applicant within either s 70(5)(a) or s 70(5)(c) and (7). At one point, counsel appearing before the Tribunal may have raised with the Tribunal that the left knee injury had been aggravated by subsequent defence service activities so as to enliven s 70(5)(d), but upon questioning by the Tribunal the claim of aggravation was confined to a back condition which the applicant alleged also to have resulted from the fall on 27 February 1986 (and which was the subject of a consent determination before the Tribunal on 24 April 2002 and incorporated into its decision on 14 May 2002). Counsel for the applicant said that aggravation was relevant to the back injury but not the knee injury and as the back was no longer an issue the applicant was relying on trauma to make out his claim. Subsequently, the submissions to the Tribunal addressed ss 70(5)(a) and ss 70(5)(c) and (7). The outline of submissions of the respondent of 24 April 2002 to the Tribunal also recognises those as the provisions to be addressed. 37 Both parties, through counsel, acknowledged that if I concluded that the applicant had made no claim to the Tribunal that he is suffering incapacity from aggravation of the left knee injury by reason of his defence service after 27 February 1986, there was no reason why he could not now submit such a claim. 38 I note, in addition, that the only material to which counsel for the applicant directed my attention as possibly supporting an "aggravation" claim under s 70(5)(d) was a medical report of Dr D Millons dated 14 June 2000. I do not think it supports any such claim in respect of the left knee injury. Dr Millons refers to the medical history and the results of his examination before expressing his opinion generally. Much of his opinion concerns the applicant's back condition. He considers the left knee injury occurred in the fall on 27 February 1986, and has gradually deteriorated. He said he could find: "no cause to question the decision that has already been made in regard to the knee wherein it was apparently felt that it was not due to active service in the Army." 39 Some of the applicant's submissions also referred to "the environment" or "the change in the environment". My consideration of the submissions confirms what was put by counsel for the respondent that such expressions were a shorthand means of expressing the claim that, because the applicant was required to attend the social function on 27 February 1986 or was in fact living on the base, somehow he was in fact on defence service at the time of the fall or would not have suffered the fall but for being on defence service by attending the social function. The references do not indicate that a claim under s 70(5)(d) was pursued in respect of the left knee injury. 40 For those reasons, I consider that the applicant has not demonstrated any error of law on the part of the Tribunal. I accordingly dismiss the application. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Solicitor for the Applicant: Bill Piper Solicitor

Solicitor for the Respondent: Australian Government Solicitor