Army tasks, obligations and requirements
23 It is not to the point that the appellant might have lived off Base, and/or attended a social function of the type in question off Base. What is relevant is what he in fact did.
24 The Tribunal said that the appellant's intoxication did not "arise out of any task that (he) had to do as a soldier". However, things a person does in the course of serving as a soldier are not limited to the obeying of lawful commands, directions and orders under disciplinary sanction pursuant to ss 27, 28 or 29 of the Defence Force Discipline Act (1982) (Cth). In Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, where the High Court was concerned with a workers' compensation statute which spoke of injury "arising out of or in the course of employment", Dixon J said (at 294, citations omitted):
"To be in the course of employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful… Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties." (emphasis added)
25 The late husband of the appellant in Henderson was struck by a train near a railway workers' camp where he was in charge of a gang of five or six men. He was returning to the camp for lunch. As Dixon J noted (at 292) the deceased, without any breach of duty, might have found board and lodging in the nearby township. The Local Court dismissed the claim on that basis, and also because he was not obliged to have lunch at the camp and lunch time did not form part of his hours of duty. The Full Court dismissed the appeal because the deceased breached a regulation by not using an overhead bridge. Dixon J said (at 293):
"An accident may arise both out of and in the course of an employment, notwithstanding that it occurs during an interval in the hours of the actual performance of work or 'duty', and although under the terms of the contract of employment the workman is not positively obliged to be upon the employer's premises during the interval. For these factors are not necessarily inconsistent with the existence of a sufficiently proximate causal connection… expressed by the words 'arising out of'; and they do not exclude the possibility that the presence of the workman at the place of the accident is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment."
His Honour also said (at 295-296) that the breach of regulation did not affect the conclusion that the accident arose in the course of the deceased's employment, and the facts clearly did not support the employer's reliance on a statutory defence of serious and wilful misconduct.
26 The evidence of the present appellant and RSM Lee, the truthfulness of which was not disputed and which was implicitly accepted by the Tribunal, show that attendances by a SNCO at the Sergeants' Mess, and especially at a function to welcome visiting dignitaries, were an integral, and valuable, part of Army life. Sergeants and other SNCOs need to be in regular informal contact about the operation of the unit and the well-being of those serving in it. The longstanding tradition is that a Mess, whether Sergeants' or Officers', is perhaps the best place where this can be done effectively. Moreover the camaraderie of the Mess encourages the maintenance and development of trust, loyalty and regimental pride which are essential for an effective military organisation.
27 When the Mess entertains a distinguished visitor the unit is, so to speak, on show. If 3 Battalion RAR were to provide an embarrassingly small turnout of Warrant Officers and Sergeants for the Senior RSM in the Australian Army because the appellant preferred to read a book in his own quarters, it may be doubted whether his conduct would have been accepted by his colleagues and RSM Lee as purely a matter of free choice for him.
28 Unsurprisingly, alcohol was consumed in the Sergeants' Mess and, no doubt, some times to excess. This way of life is likely to continue until the Army mandates teetotal Messes. True it is the appellant's consumption of alcohol was a matter of choice. But it has never been suggested that his injury resulted from his "serious default or wilful act" or "serious breach of discipline" within the meaning of s 70(9)(a); cf Henderson at 296. Unless there are grounds for the application of s 70(9)(a) (or s 9(3), the equivalent in a case of war-caused injury), the Act is not concerned with issues of contributory negligence, or moral aspects of a claimant's conduct.
29 Claimants have not infrequently been held entitled to benefits under the Act where a contributing service-related cause has been smoking (eg Repatriation Commission v Tuite (1993) 39 FCR 540, Hansell v Repatriation Commission (1992) 38 FCR 202) or alcohol consumption (eg Lowerson v Repatriation Commission (1994) 50 FCR 252). Hansell and Lowerson involved claims for war-caused conditions as a result of operational service and thus the application of the reasonable hypothesis/reverse onus of proof beyond reasonable doubt methodology mandated by s 120 (1) and (3). The present case is governed by s 120(4) which requires reasonable satisfaction by the decision-maker. However the ultimate causal relationship required is the same, whichever mode and standard of proof applies. An injury is "war-caused" if it "arose out of, or was attributable to", any eligible war service: s 9(1)(b). In the present case, the appellant's injury was "defence-caused" if it "arose out of, or was attributable to" any defence service: s 70(5)(a).
30 Tuite (which apparently was not cited to his Honour) is instructive. The Full Court upheld a decision of Foster J that an appeal by the Commission against a decision of the Tribunal was out of time. However all members of the Full Court agreed with Foster J that the respondent's smoking habit, which caused emphysema and gastric ulcer, was attributable to his war service. In refusing an extension of time Foster J took into account his view that the appeal from the Tribunal raised no arguable point of law. In the Full Court Burchett and Einfeld JJ said (at 544-545):
"There was no dispute before the Tribunal that the respondent suffered from conditions of emphysema and chronic gastric ulcer, to which his smoking habit had contributed. The issue debated was whether the smoking habit itself was attributable to the respondent's war service within the meaning of s 9(1)(b) of the Veterans' Entitlements Act, so as to make the conditions in question its consequences, attributable to that war service. The concept of attributability, in the required sense, is explained in Repatriation Commission v Law (1980) 47 FLR 57 at 68. The joint judgment of the Full Court there states:
'The cause need not be the sole or dominant cause: it is sufficient to show 'attributability' if the cause if one of a number of causes provided it is a contributing cause.'
As the respondent did not serve overseas, the Tribunal decided the matter 'to its reasonable satisfaction' pursuant to s 120(4) of the Veterans' Entitlement Act. It considered that such a decision was required to be made on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335. To have taken this approach was certainly not adverse to the Repatriation Commission.
The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was 'something within the applicant's military service which has caused him to start smoking'. It accepted his evidence that he had not smoked before, 'and that it was the circumstances whilst he was in camp that caused him to start to smoke'. The Tribunal added: 'Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military.' The Tribunal pointed out that the respondent 'was in a milieu totally different to that which he had experienced before his call-up'. (It appears that he was actually a volunteer.)
We are unable to find anything suggestive of error in this reasoning. It was for the Tribunal to decide whether it accepted the evidence of the respondent. Nothing seems to have been put before it to contradict that evidence, nor was the respondent seriously challenged in cross-examination. Apart from the matters specifically mentioned in the Tribunal's reasons, there were indeed other things adduced in evidence which tended to the same conclusion. The boredom of life in camp clearly emerges from the respondent's account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent's decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. It was open to the Tribunal to find the circumstances persuasive. If, in the case of a particular person, one of the inevitable concomitants of war service is camp life, it must be open to the Tribunal to conclude that a consequence (in the sense explained in Repatriation Commission v Law (supra)) of camp life is a consequence of war service. In this case, the Tribunal has done so."
Davies J said (at 541-542):
"The issue before the Tribunal was whether Mr Tuite's smoking habit, which it was agreed had contributed to the development of his emphysema and gastric ulcer, arose out of or was attributable to his eligible war service. Mr Tuite gave evidence that he enlisted when 24 years of age, that he had not previously smoked and that he commenced smoking within 14 days of entering camp. Mr Tuite gave this evidence, inter alia:
'Why did you start smoking? … Well, everyone was smoking and we were getting - we could afford to buy the cigarettes, off a chap come around in a truck every day and, I mean, we was all ready to go to war and we wanted to go, I wanted to go, we was marching around all the time and that's why I enlisted, to go. But it was - well, we was doing nothing, in other words, just walking around, parading around, marching and lectures.
…
Were you offered cigarettes in the army or did you just go out and decide you were going to start smoking and buy a packet? … They offered you cigarettes.'
The Tribunal accepted Mr Tuite's evidence on these points and accepted that Mr Tuite was influenced to commence smoking by the circumstances of camp life and by other servicemen with whom he was encamped. The Tribunal accepted Mr Tuite's evidence that he smoked 20 cigarettes a day at the time of his discharge and inferred that his then addiction to tobacco was a contributory cause of his continuing to smoke after discharge.
The Tribunal rejected the submission of Mr M Castle, the representative for the Repatriation Commission, that Mr Tuite was:
'Not the usual impressionable youth who, as a result of peer pressure, commences smoking on service. Here we have a mature, experienced [man] - experienced in the ways of the world - and who whilst on service had a bit of spending money, an opportunity to smoke cigarettes, bought and commenced smoking.'
The Tribunal's approach was correct in law. The question was whether Mr Tuite's emphysema and chronic gastric ulcer 'arose out of, or was attributable to' Mr Tuite's eligible war service: see s 9(1)(b) of the Veterans' Entitlements Act 1986 (Cth). It was not put to this Full Court, or to Foster J, that s 9(2) of the Veterans' Entitlements Act limits this provision. The words of s 9(1)(b) require that there be a causal connection between the eligible war service and disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease: see Repatriation Commission v Law (1980) 47 FLR 57 at 67-68.
Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9(1)(b), but not under ss 9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service 'must be a cause as distinct from being part of the circumstances in or on which the cause operates'. See Marshall v Minister of Pensions [1948] KB 106 at 110; W v Minister of Pensions [1946] 2 All ER 501 at 502; Minister of Pensions v Chennell [1947] KB 250 at 256. An illustration of the point may be found in Goward v Commonwealth (1957) 97 CLR 355 where Dixon CJ, Williams, Webb and Kito JJ held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause. Their Honours said (at 364):
'It is correct no doubt that if the camp had not been near a railway line 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.'"
31 Davies J noted (at 542) that causation is primarily an issue of fact and cited the judgment of Mason CJ in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515:
"The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case' …[citations omitted]. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn (1954) 91 CLR 268 at 277 'it is ultimately a matter of common sense' and [at 178] '(i)n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula.'"
32 Then, in an observation apt to be applied to the present argument that the appellant could have engaged in Army socialising off Base, Davies J said (at 542):
"If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. 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."
33 The expression "operative cause" comes from the passage in Goward at 364 cited by the primary judge in the present case and referred to above. In the present case the circumstances of Army life and the function of the Sergeants' Mess operated in the way described in the evidence as a contributing cause to the appellant's consumption of alcohol, and hence to his accident and injury. Indeed the present case is stronger than Tuite. The relevant circumstances - participation in the life of the Sergeants' Mess, including drinking therein - were not, like the boredom Mr Tuite encountered, unwanted but inevitable concomitants of serving in a camp. They were positive incidents of military life, adopted for very practical reasons, which created benefits for the appellant's employer the Commonwealth by helping to maintain a cohesive fighting unit.
34 Before the Tribunal there was no significant dispute as to the primary facts. It has not been suggested that there was any unexplained gap in the evidence, as was the case in Goward. The decisive point in that case was that there was no evidence at all as to what the deceased was doing on the railway line or as to where he was going at the time of his death: 97 CLR at 363-364. In the present case the Tribunal did not make a finding as to whether the appellant's consumption of alcohol at the Mess in fact was a contributing cause to his fall and consequent injury (see Repatriation Commission v Law (1981) 147 CLR 635). This was not due to any lack of evidence but because the Tribunal, incorrectly in my view, took the view that his attendance at the Mess and consumption of alcohol therein did not "arise out of any task that (the appellant) had to do as a soldier".
35 Whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J, with whom all other members of the High Court agreed. Mason J (at 8) adopted the analysis of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-512 which requires the following approach:
(i) Is the relevant statutory expression used in any other sense than that which it has in ordinary speech (a question of law)?
(ii) If no, what is the common understanding of the words (a question of fact)?
(iii) Are different conclusions reasonably open as to whether the operations in question fall within the ordinary understanding of the words as so determined (a question of law)?
(iv) If yes, what is the correct conclusion (a question of fact)?
36 In the present case, the expression "arose out of, or was attributable to, any defence service", although made up of ordinary words, is one that conveys a compound legal concept. It is not like the ordinary word "business" which was at issue in Hope or the word "insulting" (Brutus v Cozens [1973] AC 854). For upwards of a century in common law jurisdictions courts have construed the meaning of such expressions in workers' compensation legislation. Accordingly the correct application of the expression to the facts found in the present case raised a question of law for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), subject to the need to make a further finding on the causation issue, as explained above (at [34]).
37 The Tribunal erred in law in the application of this statutory criterion. It effectively ignored what the appellant was, as a matter of practicality, required or expected to do as part of his service in the Army. The primary judge did not correct that error. It might also be said that if injury can only arise out of or be attributable to defence service if it occurs when the claimant is doing something which he or she is ordered to do, it is strange that the Act contemplates injury being compensable even when it arises out of disobedience of an order, as long as there has not been a serious default or wilful act or a serious breach of discipline.
38 The appeal should be allowed, the order of the primary judge set aside, and in lieu thereof there should be an order that the application of the appellant be remitted to the Tribunal. The Commission should pay the appellant's costs of the appeal and in the court below.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.