Schmid v Comcare

The Tribunal's decision 10 After having set out the various incidents upon which the applicant relied in support of his claim for compensation, the Tribunal summarised his testimony, and that of other witnesses who gave evidence. 11 The Tribunal noted that the applicant claimed that he had twice, unsuccessfully, requested a transfer from the Pipes and Drums unit. 12 The incidents which he had recounted were the subject of detailed cross-examination. The applicant did not resile from the account which he gave of those incidents, but he modified it in certain respects. 13 In relation to the suicide in the shower area, the applicant acknowledged, under cross-examination, that he had not been the first to arrive at the scene. He also acknowledged that he did not know for a fact that there had been no investigation, and was unaware that a full enquiry had been held the next day. He accepted that his primary concern had been that he personally had not been questioned. 14 The applicant acknowledged that he had been only one of several recruits required to assist the soldier who had collapsed on the training run, and accepted that it was possible that he had only been obliged to carry him for a distance of one to two hundred metres at a time. 15 In relation to the second suicide, the Tribunal noted that the applicant maintained that he had gone into the room but, under cross-examination, acknowledged that he may not have actually seen the deceased. 16 The Tribunal noted that the applicant acknowledged that he had smoked cannabis, and that he had been the subject of an investigation regarding that matter in 1982. He also accepted that he had grown cannabis, and that he had smoked it intermittently after that date. 17 In relation to the physical conditions of which the applicant complained, the Tribunal noted that he "blamed" their onset on the circumstances of his service with the army. He could not recall when he first sought treatment for his stomach problems, but said that from early 1985 he had been issued with Mylanta. He claimed that he used at least half a bottle a fortnight, and now used Gavascon each day. 18 The applicant claimed that playing bagpipes for extended periods had caused both his hiatus hernia and gastric condition. He said that after he had left the army he suffered heartburn and water brash, conditions which he believed were linked to his having contracted pneumonia in 1985. At that stage, he did not regard these conditions as linked in any way to his bagpipe playing. However, he subsequently noted that the more he played, the greater the problem, and that the symptoms eased when he stopped. 19 The Tribunal then summarised the evidence given by various medical experts. It is unnecessary to set out that evidence in detail. It is sufficient simply to note that the experts all agreed that the applicant suffered from chronic bipolar disorder, and that his condition was partly genetic. However, there was disagreement among them as to whether that condition required a stressful or traumatic event to trigger it, and also as to when the condition manifested itself. 20 After considering the evidence, the Tribunal concluded that neither the applicant's physical, nor his psychiatric condition, stemmed from or was contributed to by his army service. 21 In relation to the applicant's physical condition the Tribunal said: "28 … Dr Murphy was quite firm in his view that the hernia and gastric problems were constitutional and in no way related to playing bagpipes. We were impressed with the evidence of Dr Murphy and prefer his opinion to that of the other medical witnesses. The relationships of aspirin medication and/or bagpipe playing suggested by these witnesses was purely hypothetical and, particularly in relation to the effect of bagpipes, was put forward with no scientific or expert knowledge support. To the extent that aspirin may have contributed, the evidence of Mr Schmid was that large doses were taken after his motor vehicle accident in 1982. There was no evidence to support that the accident had any connection with his army service. On balance we are satisfied that the hiatus hernia and gastric problems are constitutional and, if there had been any aggravation of such conditions as a result of army service, such aggravation had no relationship with the playing of bagpipes and the effect of any such aggravation had ceased prior to ceasing service with the army. Whilst Mr Schmid may well have a permanent impairment from the conditions, such impairment has not resulted from a compensable injury. There was no evidence to support any relationship between Mr Schmid's service and any bowel or bladder problems." 22 In relation to the applicant's psychiatric condition, the Tribunal relevantly stated: "31. … The majority of psychiatrists who considered that stresses during army service may have triggered the onset of bipolar disorder did so on the basis of the history given by Mr Schmid and, generally, were those who saw him in more recent years. As those who attributed the condition to the stresses in army service accepted that it was necessary for such stresses to be real, rather than perceived for the connection to be made, it is necessary to consider the evidence of those alleged incidents. This is somewhat difficult in view of the time which has elapsed, the lack of witnesses with direct knowledge of many of the incidents and the real possibility that Mr Schmid, in seeking to find reasons for his condition, has, since 1989, allowed incidents to grow in importance in his mind. 32. Two of the incidents highlighted by Mr Schmid and Dr Rose were the suicides by other soldiers. There is no dispute that they occurred. However, we do not accept, in either case, that Mr Schmid found the bodies or was first on the scene. In the first instance, recalled by Mr Schmid in paragraph 5 of his statement, it seems clear that Mr Schmid was one of several soldiers in the shower area when the body was found. In the second instance of a soldier shooting himself, we accept that Mr Schmid was aware of it and may well have been in the vicinity of the building, perhaps on guard, but the inconsistencies of his evidence and the evidence of Mr Martin and Mr Seeley lead to the conclusion that he did not see the body. In both cases, Mr Schmid appeared to be more concerned about the perception of an uncaring attitude by the army and its failure to include him in any enquiry or investigations rather than the particular trauma of the death. 33. In relation to the alleged incident of almost shooting a civilian in Malaysia, the evidence was particularly confusing. We find it difficult to accept that, if such an incident happened that no more senior ranking soldier was aware of it. The only support for Mr Schmid's version was from a friend, Mr Dyson, who was unable to provide any other details apart from Mr Schmid's version. We are of the opinion that it is likely that Mr Dyson "refreshed" his memory of the event by discussion with Mr Schmid prior to the hearing. He said that he had not but Mr Schmid acknowledged an earlier discussion. As such, we place little reliance on the evidence of Mr Dyson. While it is accepted as possible that some incident involving a civilian may have happened when on guard duty we are unable to accept that it happened in the way stated by Mr Schmid or that it had any such traumatic effect. 34. We are of the view that the other incidents outlined by Mr Schmid involve a degree of exaggeration, albeit unconsciously. We do not accept as possible a parachute jump from an aeroplane with only 20 minutes of training. We accept that it was smoke not gas used in the training exercise in 1981. The alleged incident in 1983 in North Queensland appeared to be an incident between Mr Schmid and civilians at a hotel and unrelated to the army although it appears likely that fellow soldiers removed him from the scene. Mr Schmid has no real memory of the actual incident. The majority of complaints by Mr Schmid were of his treatment by Pipe Major Gall. Considering all the evidence, we accept that there may well have been clashes between the two men and considerable personality differences but do not accept that the actions of Pipe Major Gall went beyond reasonable disciplinary action in the setting of an army unit. It could be summed up that the bulk of Mr Schmid's complaints and alleged incidents were primarily complaints about the system and his perception of a lack of consideration of himself and others. It may well have arisen from his basic personality problems referred to by Captain Miller in 1983 as "trouble relating to others". We believe that the evidence of Mr Schmid's paranoia is also relevant to his criticisms and complaints. 35. After consideration of all of the evidence, we find that the onset of the condition of bipolar disorder was no earlier than 1989. We are satisfied that the condition is primarily constitutional and, to the extent that stressful events may trigger the disorder, we cannot be satisfied on the balance of probabilities that such stressful events were related to army service. Mr Schmid had other stresses in his life such as a failed marriage, the death of his father and constitutional physical problems which may have contributed. We consider it relevant that Mr Schmid was an acknowledged regular user of cannabis which was considered by several of the psychiatrists as productive of depression. On balance, we are not satisfied that there is a causal relationship between army service and the condition of bipolar disorder and are satisfied that the condition was not contributed to in a material degree by Mr Schmid's employment by the army." 23 The Tribunal then concluded that the decision revoking liability for depressive illness or chronic bipolar illness should be affirmed, and so too should the decision denying a claim for permanent impairment for the physical conditions.

Legislative context 24 As several of the grounds in the notice of appeal challenge the Tribunal's decision upon the basis that it misconstrued various provisions of the Act, it is necessary to set out those provisions. 25 Section 4 defines the word "injury" as follows: "injury means: (a) a disease suffered by an employee; or (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; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee …". (emphasis added) 26 Section 6 sets out a list of circumstances in which an injury may be treated as having arisen out of, or in the course of, a person's employment. The list is not exhaustive. That section relevantly provides: "(1) … 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; or (b) while the employee: (i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; …"

The notice of appeal 27 The notice of appeal contained ten grounds of appeal, although one was abandoned. The grounds pressed were: "1. In coming to its conclusion the Tribunal failed to give proper reasons for it rejecting the Applicant's evidence as to the following matters: (a) his involvement in two suicides which the Tribunal accepted in fact occurred; (b) the incident in Malaysia in 1985 when the Applicant almost shot a civilian in the course of his military duties; (c) the evidence of the Applicant's doctors as to the relationship between bagpipe playing and the onset of his hernia and gastric difficulties; (d) the Applicant's evidence that he was involved in a parachute jump with only 20 minutes training. … 3. The Tribunal erred in that it had no proper evidence and it could not reasonably have come to the conclusion that the Applicant did not suffer from traumatic effects from the incident in Malaysia in 1985 when he almost shot a civilian or that the event did not take place as alleged by the Applicant. 4. The Tribunal erred in law or took irrelevant considerations into account when it accepted the opinions of Mr Murphy that there was no relationship between bagpipe playing and the onset of hernias and gastric difficulties because there was no scientific or expert knowledge for such a proposition. 5. The Tribunal erred in law in rejecting the opinions of Dr Naylor, Dr Hanson, Professor Myers and Mr Chew that the Applicant's hernia and/or gastric difficulties arose form bagpipe playing in the course of his army service when they were entitled to hold such opinion because of their expert knowledge and to reach a conclusion based upon such knowledge. It was not necessary for there to be scientific support for such a proposition. 6. The Tribunal erred in law or considered an irrelevant matter when the Tribunal determined that the actions of Pipe Major Gall did not go beyond reasonable disciplinary action in the setting of an army unit. The Respondent did not assert that the defence of reasonable disciplinary action was an issue in these proceedings. The real question for the Tribunal was whether or not the behaviour of Pipe Major Gall contributed to the Applicant's bipolar disorder. 7. The Tribunal erred in law or failed to consider a relevant matter when it determined that the incident in North Queensland in 1983 involving the Applicant at an hotel was unrelated to his army service. The Applicant's activities at the time in North Queensland arose out of or in the course of his employment and were therefore relevant as to whether or not that event contributed to the onset of his bipolar disorder. 8. The Tribunal committed an error of law when it determined that it was not possible for the Applicant to have been involved in a parachute jump from a aeroplane with only twenty minutes training. The possibility was raised directly by the Applicant's evidence and could not be categorically rejected by the Tribunal on a proper or reasonable consideration of the evidence. 9. The Tribunal misconstrued the evidence by taking into account irrelevant considerations when it determined that the Applicant's use of cannabis was productive of depression. There was no evidence or no reasonable evidence on which the Tribunal could determine that the Applicant's cannabis use was productive of his depression. 10. The Tribunal failed to give proper consideration to the circumstances that the Applicant found himself in when his accepted entitlements under the Act was [sic] revoked on the 6th March 2001. This resulted in the Applicant having to obtain evidence as to events which occurred between 1980 and 1986 while he was in military service. The Tribunal has an obligation to consider all of the circumstances of an Applicant and in particular to consider the circumstances of an Applicant who has been in receipt of entitlements under the Act for a prolonged period of time who then faces a revocation of the original finding of liability."

The parties' submissions 28 The applicant's submissions were based largely upon the manner in which the Tribunal dealt with the various incidents which the applicant relied upon in support of his claim. 29 The incidents said to have given rise to the applicant's psychiatric condition were set out earlier, and can be conveniently summarised under the following headings: · The suicides; · The parachute jump; · The treatment meted out by Pipe Major Gall; · The assault in North Queensland; and · The incident in Malaysia. 30 The applicant relied upon his bagpipe playing as being the substantial cause of his physical condition.

The suicides 31 The applicant submitted that the Tribunal was under a duty, pursuant to s 43 of the AAT Act, to state the facts found, and to give adequate reasons for its decision. It was further submitted that, even apart from this statutory requirement, the applicant had a right, at common law, to know why his claim had been refused. 32 While the Tribunal appeared to accept that the two suicides had in fact occurred, it discounted the applicant's contention that he was profoundly affected by what he had seen. In the case of the first suicide, the Tribunal did not accept that he had discovered the body. In the case of the second, it did not accept that he had even seen the body. 33 In the alternative, the applicant submitted that in relation to the second suicide, the Tribunal could not properly have preferred the evidence given by Mr Martin and Mr Seeley to that which he gave. He submitted that their account was based upon "normal military procedures", whereas he gave direct evidence of having seen the body of the deceased. The Tribunal had not given an adequate explanation for having rejected his evidence. 34 Finally the applicant complained that, in relation to the second suicide, there had been a failure on the part of counsel for the respondent to put to him that he had not seen the body of the deceased, in accordance with the rule in Browne v Dunn (1893) 6 R 67. 35 The respondent submitted that the Tribunal's reasons for rejecting the applicant's claim that the suicides had contributed to his psychiatric condition were adequate. In relation to the first suicide, the applicant acknowledged that he had been one of several soldiers in the shower area when the body was found. He had not "discovered" the body. In relation to the second suicide, the Tribunal accepted that the applicant may well have been in the vicinity of the building where the deceased shot himself. However, his evidence did not accord with that of Mr Martin and Mr Seeley. Their evidence was not based solely upon "normal military procedures", but also upon their recollection of what had occurred. It was open to the Tribunal to prefer their evidence, and conclude that the applicant had not seen the body at all. 36 The respondent further submitted that regardless of whether the applicant had discovered the body (in the case of the first suicide), or had seen the body (in the case of the second), the Tribunal's conclusion that he appeared to be more concerned about what he perceived to be an uncaring attitude on the part of the army, rather than the impact of the deaths themselves, was unassailable. 37 Finally, the respondent submitted that, even assuming that the rule in Browne v Dunn was applicable to proceedings before the Tribunal, there had been an adequate challenge to the applicant's account of what had occurred.

The parachute jump 38 The applicant submitted that the Tribunal erred in finding that it was not possible for him to have made a parachute jump with only twenty minutes' training. It was submitted that the Tribunal should have explained why it preferred that conclusion over the direct, and unchallenged, evidence of the applicant. It was an error of law to make a finding of fact of that kind, based on inference, in the face of unchallenged evidence given by a witness to the contrary. 39 The respondent submitted that the Tribunal had given adequate reasons for rejecting the applicant's claim. It noted that he had conceded, under cross-examination, that the training may have been thirty minutes, or even an hour, in duration. In those circumstances, the Tribunal had been entitled to reject his evidence which was, in any event, inherently improbable.

Pipe Major Gall 40 The applicant submitted that the Tribunal had misunderstood the meaning of the term "injury" in s 4 of the Act. It was submitted that the actions of Pipe Major Gall could not conceivably be described as "reasonable disciplinary action taken against [an] employee". Levelling abuse at a soldier, describing him in derogatory terms such "German Gordy", and threatening to assault him, all went well beyond what could be characterised as "reasonable". 41 The submission was also put on an alternative and narrower basis. It was contended that the phrase "reasonable disciplinary action" required the laying of a formal charge, and the imposition of a punishment after proper procedures had been followed. Derogatory comments, even in response to perceived infractions of army rules, could not meet that description. 42 The respondent submitted that the expression "reasonable disciplinary action" in s 4 bore a far wider meaning than that for which the applicant contended. Derogatory comments and even threats made for effect, and not intended to be taken seriously, could, in some circumstances, be regarded as disciplinary action. And such conduct could be regarded as reasonable.

Assault in North Queensland 43 The applicant submitted that the Tribunal had erred in holding that the incident involving the assault upon him was "unrelated to the army". It was submitted that the applicant was in Townsville only because the army had sent him there. It followed that he would not have been injured "but for" his employment, in accordance with s 6(1)(a) of the Act. That meant that he had been injured in the course of his employment. The fact that he seemed not to have been in uniform at the time of the incident was irrelevant. So too was the fact that he had apparently provoked it. 44 The respondent submitted that the Tribunal had been entitled to find that the injuries sustained by the applicant in the circumstances set out above did not mean that he had been injured "in the course of his employment". The respondent further submitted that the "but for" test, in s 6(1)(a), did not operate to render his transfer to Townsville a causal factor of the kind required to bring the applicant within the ambit of that expression.

Incident in Malaysia 45 The applicant submitted that the Tribunal erred in law by failing to give adequate reasons for rejecting his account of this incident. The Tribunal reasoned that if such an incident had occurred, senior ranking officers would have known about it. It was submitted that this reasoning was deficient. It failed to address the possibility that the incident had occurred, and been reported to senior officers, but that it had been forgotten by the time they gave evidence about it. 46 The Tribunal's reasoning was also attacked in relation to its rejection of Mr Dyson's evidence. The Tribunal found that he had "refreshed" his memory prior to the hearing, and that his account was therefore unreliable. However, it had not been suggested to Mr Dyson, in cross-examination, that he had "refreshed" his memory. Even if he had, it did not follow that his account should be rejected. 47 The respondent submitted that Mr Dyson had been vigorously cross-examined as to credit before the Tribunal, and that his recollection of the supposed incident had been challenged. Moreover, the Tribunal had used the word "refreshed" in inverted commas. This indicated that it had grave doubts regarding his credibility. Perhaps the Tribunal ought to have gone further, and expressly found that he had lied about the incident. However, its use of benign language did not demonstrate error of the kind for which the applicant contended.

Bagpipe playing 48 The applicant submitted that the Tribunal had not given adequate reasons for rejecting his doctors' evidence regarding the possible link between bagpipe playing and the onset of his hernia and gastric difficulties. It was also submitted that the Tribunal erred in law by accepting Dr Murphy's evidence, in preference to that of the applicant's doctors, all of whom were of the view that such a link existed. 49 The respondent submitted that the Tribunal had been entitled to prefer the evidence of Dr Murphy to that of the applicant's doctors without having to explain why it arrived at that conclusion. However, it had in fact done so. It had described Dr Murphy as having been "quite firm" in his view that the hernia and gastric problems were constitutional, and in no way related to bagpipe playing. It also said that it was "impressed" with his evidence. It had contrasted his evidence with that of the applicant's doctors which was unsupported by any recognised scientific theory.

Cannabis use 50 Apart from the previously mentioned incident-specific submissions, the applicant submitted that the Tribunal erred when it stated that it considered the fact that the applicant "was an acknowledged regular user of cannabis which was considered by several of the psychiatrists as productive of depression" to be relevant. It was submitted that there was no evidence, or alternatively no reasonable evidence, upon which the Tribunal could find that the applicant's use of cannabis was in any way causally related to his psychiatric condition. 51 The respondent submitted that the Tribunal had been entitled to make the comment which it did. There was evidence upon which it could be justified. Alternatively, it was a matter as to which judicial notice could be taken.

The preliminary issue 52 Before turning to the grounds of appeal, it is convenient to deal with a general submission made on behalf of the respondent that none of the errors attributed to the Tribunal were errors of law. The respondent contended that they all involved, at most, errors of fact. 53 Recent authority suggests that there is a high threshold for treating a finding of fact as giving rise to an error of law. In Roads Corporation v Dacakis [1995] 2 VR 508 at 520 Batt J said: "…a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will be open to challenge as being erroneous in law if it was not reasonably open on the facts." 54 Critically, want of logic in drawing an inference is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if it appears to have been drawn as a result of illogical reasoning, no error of law will be established: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, per Mason CJ at 355-356. 55 Several of the grounds of appeal complain that the Tribunal failed to give proper reasons for rejecting the applicant's evidence. Section 43(2) of the AAT Act provides that the Tribunal may give its reasons either orally or in writing. Section 43(2A) provides that where the Tribunal does not give its reasons in writing initially, a party may, within twenty-eight days of receipt of a copy of the decision, request a written statement of reasons. Such a statement must then be furnished within a further twenty-eight days. Section 43(2B) provides that where the Tribunal gives written reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 56 There is a substantial body of authority regarding what is required in a statement of reasons. There is a helpful discussion of the cases by Professor Pearce in his recent text, Administrative Appeals Tribunal (Butterworths, 2003) at pp 157-160. 57 In O'Brien v Repatriation Commission (1984) 1 FCR 472 at 486 Keeley and Fitzgerald JJ said that a failure to comply adequately with the obligation to give reasons itself constituted error of law, at least when a claim to a pension was rejected. On appeal, in Repatriation Commission v O'Brien (1985) 155 CLR 422 Brennan J disagreed with this proposition. He said that in a case where there was a failure to give adequate reasons it might be inferred that the Tribunal had failed in some respect to exercise its powers according to law. The Court might act upon the inference, and set aside the decision, not because of a failure to state reasons, but because of a failure to make the decision according to law. 58 In Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 Sheppard J said that s 43 did not impose upon the Tribunal any standard of perfection. The requirements of the section were directory rather than mandatory, substantial compliance only being required. See also Dornan v Riordan (1990) 24 FCR 564. In substance, the obligation imposed upon the Tribunal by the section is to provide an intelligible explanation as to how it reached its conclusion. 59 Professor Pearce comments at 159: "Where there is conflicting evidence, the reasons should indicate why one version has been preferred over another: Davis v Australian Securities Commission (1995) 38 ALD 273 at 294; 131 ALR 295 at 317; Total Marine Services Pty Ltd v Kiely (1988) 51 ALD 635 at 641, unless the competing views are so clear-cut that the fact of selecting one indicates the basis of the choice: Australian Postal Commission v Wallace (1996) 41 ALD 455. Likewise, if uncontradicted evidence is not followed, the reasons should indicate why: Suters v Australian Postal Corp (1992) 28 ALD 320." 60 It is not necessary, however, for the Tribunal to state findings of fact expressly if, on reading its reasons as a whole, those findings are implicit: Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368 at 370. 61 I propose to proceed upon the basis, most favourable to the applicant, that a failure to provide adequate reasons can, in some circumstances, amount to error of law. In approaching the matter in this way, I am conscious of the fact that there is considerable debate about the correctness of this proposition.

Ground 1 62 In my opinion, the Tribunal gave adequate reasons for rejecting the applicant's account of his involvement in the two suicides. As noted earlier, in relation to the first suicide, the Tribunal refused to accept that he had discovered the body, as he claimed. In relation to the second suicide, it rejected his claim to have seen the body. 63 It is clear from a reading of the transcript of the applicant's cross-examination before the Tribunal that the account which he gave regarding his involvement in relation to the suicides was strongly challenged. It was put to him that what he said was untrue. Counsel attacked his credit, drawing upon inconsistencies in his evidence. For example, he said at one point that he took longer to "get over" the second suicide than he had the first. However, he soon adjusted that answer by claiming that he "never" really got over the second suicide. The Tribunal had the advantage of seeing and hearing the applicant give his evidence. It was plainly open to it to conclude, as it did, that he had exaggerated various aspects of his claim in an effort to strengthen it. 64 The same is true of the Tribunal's reasons for rejecting the applicant's account of the incident in Malaysia. Both the applicant and Mr Dyson were extensively cross-examined regarding their recollections of this incident. It was put to each of them that they had discussed the matter at length before giving their evidence. Mr Dyson initially denied having had any contact at all with the applicant. However, he ultimately conceded that there had been some discussions between them. The Tribunal was entitled to reject his evidence, in whole or in part, having regard to this equivocation. 65 For those reasons, I need not consider the extent to which, if at all, the rule in Browne v Dunn is applicable to hearings before the Tribunal. I note, however, for the sake of completeness, that in Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206, and in Marelic v Comcare (1993) 47 FCR 437 failure to comply with the rule was said to be capable of vitiating a decision of the Tribunal, not because the rule was seen as a rule of evidence, but rather as a requirement of procedural fairness. 66 I am also satisfied that the Tribunal gave adequate reasons for preferring the evidence of Dr Murphy to that of the applicant's doctors. It found Dr Murphy to be an impressive witness, and noted the firmness with which he expressed his views. Moreover, the Tribunal was entitled to take into account the absence of any scientific support for the theory that there was a link between bagpipe playing and the onset of the applicant's hernia and gastric difficulties. 67 Finally, I am satisfied that the Tribunal gave adequate reasons for concluding that the applicant's account of the parachute jump involved a degree of exaggeration. He conceded that fact in cross-examination when he accepted that the period of training may have been considerably longer than the inherently improbable twenty minutes which he initially claimed. 68 It follows that I reject ground one of the notice of appeal. I am satisfied that the Tribunal met its obligations under s 43, and any obligations it may have had at common law, to provide adequate reasons for its decision.

Grounds 3, 4, 5 and 8 69 These grounds of appeal are all couched in the language of error of law. However, on careful analysis, they were not ultimately addressed in those terms. For example, the contention in ground three that the Tribunal could not reasonably have come to the conclusion that the applicant did not suffer trauma as a result of the incident in Malaysia in 1985, or that the event did not take place as alleged by him, was little more than an invitation to this Court to revisit a finding of fact made by the Tribunal. To suggest that such a finding was not open to the Tribunal at all, having regard to the inconsistencies in the applicant's evidence, and the damage done to the credit of his only supporting witness, Mr Dyson, is simply untenable. 70 The same may be said of the contention in grounds four and five that the Tribunal erred in law when it preferred the evidence of Dr Murphy to that of the applicant's doctors. 71 Equally, ground eight, which complains that the Tribunal erred in law when it determined that it was not possible for the applicant to have only twenty minutes' training before a parachute jump, really amounts to a challenge to a finding of fact, and does not give rise to an error of law. 72 The fact that these grounds of appeal are formulated as "no evidence" grounds does not assist the applicant. There is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629 per Gleeson CJ and McHugh J. The high threshold which must be met in order to establish an error of law on such a basis is not even remotely approached in this case. Whether or not one agrees with the Tribunal's findings on these matters, it is impossible to say that they were not open to the Tribunal to make. The Tribunal had the advantage of seeing and hearing the witnesses give evidence. It was entitled to accept or reject such parts of their evidence as it thought fit. It explained its reasons for disbelieving the applicant. It also explained why it did not believe Mr Dyson, and why it preferred the evidence of Dr Murphy to the evidence of the applicant's doctors. It is not for this Court, in these circumstances, to substitute its view of the facts for that of the Tribunal. 73 It follows that grounds 3, 4, 5 and 8 are not made out.

Ground 6 74 Ground six contends that the Tribunal erred in law, or took into account an irrelevant consideration, when it determined that the actions of Pipe Major Gall did not go beyond reasonable disciplinary action in the setting of an army unit. 75 The respondent submitted that the Tribunal's finding regarding this matter was no more than a finding of fact. 76 Pearce observes at 177 that: "The magnification and inflation of questions of fact into questions of law to provide an avenue of appeal from AAT decisions 'is to be deprecated': per Fisher J in Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (No 2) (1980) 3 ALD 38 at 49; per Finn J in Willcocks v Comcare (2001) 66 ALD 119 at 124." 77 There is no doubt that this Court, when hearing appeals from the Tribunal which involve challenges to findings of fact, should exercise restraint. Parliament plainly contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision. As long as it is clear that the Tribunal gave rational consideration to probative evidence, the fact that another person, or even this Court, reviewing the same material may have come to a different conclusion is not to the point: Fitz-Gibbon v Inspector General in Bankruptcy (2001) 180 ALR 475 at 484. 78 The distinction between an error of fact and an error of law is a notoriously difficult one to draw. In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280the Full Court observed at 287: "1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact: Jedko Game Co Pty Ltd v Collector of Customs (NSW) (supra); New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 512; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Neal v Department of Transport (1980) 3 ALD 97 at 107-108. 3. The meaning of a technical legal term is a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Commissioner of Taxation (Cth) (1979) 40 FLR 208 at 215. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia Ltd v Phillips (supra) at 79. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ)." 79 In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, the High Court drew attention to the fact that in Pozzolanic the Full Court had qualified the fifth proposition set out above. The Court went on to say at 396: "Such general expositions of the law are helpful in many circumstances. But they lose a degree of their utility when, as in the present case, the phrase or term in issue is complex or the inquiry that the primary decision-maker embarked upon is not clear." 80 The Court in Agfa-Gevaert queried the distinction between the second and fourth of the five propositions formulated in Pozzolanic. That distinction was described as "artificial, if not illusory". 81 The statutory phrase which must be construed in the present case is "reasonable disciplinary action". That phrase was considered in some detail in Comcare v Chenhall (1992) 37 FCR 75. There, the respondent was a member of the Australian Federal Police ("the AFP") from 1975 until he retired on grounds of "invalidity" on 18 June 1989. On 16 February 1989, he was interviewed by two AFP officers regarding possible criminal offences. On 6 March 1989, he claimed compensation in respect of paranoia/anxiety from work-related stress which he claimed was attributable to the interview and ongoing harassment by members of the AFP. No criminal proceedings were ever brought against him. 82 The respondent's claim for compensation, in that case, was rejected by a delegate of the applicant, but succeeded on review by the Tribunal. It decided, as a preliminary issue, that the events of 16 February 1989 had not arisen out of "reasonable disciplinary action" within the meaning of that expression in s 4 of the Act. The Commission sought to appeal against that decision. It argued that the Tribunal had erred in limiting the meaning of the phrase "disciplinary action" to "a response of a punitive kind to an established wrongdoing" or the "application of a sanction after the making of a finding (not necessarily after a formal hearing) of guilt or culpability". 83 Cooper J held that the expression was to be interpreted by reference to its ordinary grammatical meaning, in context. His Honour expressly rejected a contention on behalf of the respondent that "disciplinary action" referred only to the imposition of a sanction. He distinguished Caldwell v Smith (1983) 51 ALR 386 at 388-389, Hart v Jacobs (1981) 39 ALR 209 at 210 and Australian Telecommunications Commission v Hart (1982) 43 ALR 165 at 175, among other cases, in so holding. He concluded that, in context, the phrase meant reasonable action lawfully taken against an employee in the nature of, or to promote, discipline. He emphasised that the action had to be taken against a particular employee, and did not include action taken as part of the general maintenance of discipline over all employees. 84 Applying that interpretation to the facts before him, Cooper J held that action taken to investigate a complaint, or an allegation, against a member of the AFP did not constitute "disciplinary action" taken against that person. It is at least implicit in his Honour's judgment that he regarded the question whether particular conduct amounted to "reasonable disciplinary action" as a question of law. I propose to approach the matter on the same basis. I therefore reject the respondent's submission that this issue did not give rise to a question of law. 85 Turning to the facts of the present case, the applicant's claims regarding the conduct of Pipe Major Gall included his having made derogatory comments about the applicant, among them having described him as an idiot, having dressed him down in front of the platoon, and having threatened to assault him. 86 As noted earlier, the Tribunal concluded that there was a real possibility that the applicant, in seeking to find reasons for his psychiatric condition, had allowed incidents to grow in importance in his mind, and involved a degree of exaggeration. It accepted that there may well have been "clashes" between the applicant and Pipe Major Gall and "considerable personality differences". It did not accept, however, that the actions of Pipe Major Gall "went beyond reasonable disciplinary action in the setting of an army unit". 87 If the Tribunal intended by its reasons to convey that any genuine and realistic threats of assault which Pipe Major Gall may have made did not go beyond "reasonable disciplinary action", it plainly erred. On no view of that expression could unlawful conduct, including threats of assault, be regarded as reasonable. 88 However, the Tribunal's reasons must be read as a whole. Moreover, they must not be scrutinized overzealously, with a mind attuned to discerning whether some inadequacy may be gleaned from the way they are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It is by no means clear that the Tribunal accepted, as a fact, that Pipe Major Gall had threatened to assault the applicant, or if he did, that any such threats could be, or were intended to be, taken seriously. Its conclusion that the applicant tended to exaggerate the various incidents which he recounted suggests that it did not positively make that finding. 89 Although some parts of the Tribunal's reasons could have been expressed more felicitously, the general tenor of what it intended to convey is tolerably clear. It accepted that a superior officer could make derogatory comments about a soldier in his charge without necessarily exceeding the bounds of "reasonable disciplinary action". Much would depend upon whether the comments were intended to operate as a sanction for unsatisfactory performance. Read this way, I am not persuaded that the Tribunal erred in law when it found that the actions of Pipe Major Gall did not go beyond reasonable disciplinary action in the setting of an army unit.

Ground 7 90 Ground seven complains that the Tribunal erred in law, or failed to take into account a relevant consideration, when it determined that the injury sustained by the applicant arising out of the incident in the hotel in North Queensland in 1983 was unrelated to his army service. As noted earlier, the applicant submitted that his activities arose out of, or in the course of, his employment. 91 The Tribunal considered that this incident was "unrelated to the army", although it accepted that the applicant had been in the company of other soldiers while drinking at the hotel. 92 The respondent submitted that the attack upon the Tribunal's finding on this issue did not give rise to a question of law. I reject that submission. I apply the same reasoning to this issue as I did when considering ground six. 93 However, I accept the respondent's submission that the Tribunal was correct in concluding that the incident did not arise out of, or in the course of, the applicant's employment. 94 The applicant relied upon Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529. In that case an employee of the Commissioner for Railways died in a fire which destroyed a railway van standing at a siding. The van, a unit of railway rolling stock, was fitted out to provide lodging for two employees and was the deceased's residence whilst working at the siding. There was no evidence as to the cause of the fire, but there was evidence that the deceased had entered the van in the evening sometime after ceasing work for the day. The siding where the deceased worked was so far from his home that it was impracticable for him to do other than reside in the van during the working week. 95 The High Court held that the facts supported a finding that the injury resulting in death was an "injury arising … in the course of employment" but were inadequate to support a finding that it was an "injury arising out of … employment" within the meaning of the relevant statute. 96 The applicant also relied upon Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473. In that case it was held that an injury sustained in an interval or interlude occurring within an overall period or episode of work may be an injury arising "out of or in the course of employment". Such an interval or interlude occurred within the course of employment if, expressly or impliedly, the employer had induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. The one qualification to this proposition was that gross misconduct on the part of the employee might take him outside the course of employment. 97 Neither Danvers nor Hatzimanolis seems to me to be directly on point in relation to the present issue. If ever an incident could be described as a "frolic of his own", it was the applicant's foolhardy decision to insult a female friend of a member of the motorcycle gang in the hotel. It was that insult which led to his being assaulted. 98 It is arguable that the Act may be broader, in some respects, than comparable workers' compensation provisions. For example, an employee is not precluded from compensation, under the Act, merely because he brought upon himself the injury which he sustained. Indeed, he is not precluded from compensation even if the injury resulted from his own misconduct. I note that Cooper J came to that conclusion in Chenhall at 83. His Honour disregarded earlier suggestions to the contrary in Re Scalzo and Australian Postal Corporation (1991) 24 ALD 83. He observed, correctly in my view, that the approach taken in Scalzo could not be reconciled with the terms of s 14(3). That subsection provides that compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted. However, the subsection provides for an exception: "unless the injury results in death, or serious and permanent impairment" (emphasis added). It follows that, under the Act, there are cases where even serious and wilful misconduct on the part of an employee may result in injury which is compensable. 99 It is one thing to accept that a person is not precluded from receiving compensation merely because he was injured as a result of his own misconduct. It is altogether another to accept that compensation is payable in circumstances where that misconduct occurs at a place, and time, that is totally removed from the normal incidents of the applicant's employment. An injury sustained by the applicant as a result of his involvement in a drunken brawl with members of a motorcycle gang, in a hotel, does not strike me as having arisen out of, or in the course of, his employment as a soldier. I note that there was nothing to suggest, as in Hatzimanolis, that the army expressly or impliedly, induced or encouraged the applicant to spend his leisure time drinking in a hotel, still less that it induced or encouraged him to engage in the type of conduct that resulted in him being beaten up. 100 The extended meaning given to the expression "in the course of" by s 6(1)(a) does not assist the applicant, at least in the circumstances of this case. It cannot have been the intention of the legislature that the "but for" test set out therein should be construed literally, so as to avoid the need for any genuine proximity between the injury and the employment. If the applicant's contention were correct, a person posted away from home, who suffered an injury totally unconnected with his employment, would be entitled to compensation under the Act on the basis that, "but for" his employment, he would not have been in the place where he sustained his injury. Such an interpretation of s 6(1)(a) would, in my view, be somewhat strained. 101 It follows that ground seven is not made out.

Grounds 9 and 10 102 The last two grounds of appeal can be dealt with briefly. In ground nine, the applicant contended that the Tribunal misconstrued the evidence by taking into account irrelevant considerations when it determined that his use of cannabis was productive of depression. It was submitted that there was no evidence to support that conclusion. 103 The short answer to that submission is that several of the psychiatrists who provided reports spoke specifically about the effects of cannabis upon the applicant's mental state. For example, Dr Albert Kaplan gave evidence before the Tribunal that marijuana, when used in "some" quantities, could cause depression. He also said that when used "chronically" it could cause a loss of drive, enthusiasm, motivation. In some cases it could precipitate psychosis. 104 Even if these psychiatrists had not given this evidence, the Tribunal, which is not bound by the rules of evidence, and which was constituted by both a senior member and a member who is a medical practitioner, was entitled to inform itself about the effect of cannabis in any way it saw fit. The link between regular cannabis use and depression is notorious. The Tribunal was entitled to consider the applicant's history of drug use to be relevant to his condition. 105 Ground ten claimed that the Tribunal failed to give proper weight to the effect upon the applicant's case of the lapse of time which had occurred since the events upon which he relied took place. Even if I were to accept that proposition, although I see little or no basis for it, I doubt that it could be described as constituting an error of law. 106 It follows that grounds nine and ten are not made out.

107 It also follows that the appeal must be dismissed. The respondent has agreed that notwithstanding that the applicant has failed in his application to the Court, there should be no order as to costs. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicant: Mr P.G. Nash QC with Mr I.R. Fehring

Solicitors for the Applicant: Ryan Carlisle Thomas

Date of Hearing: 15 and 23 April 2003