Statement of Principles concerning electrical injury (Balance of Probabilities) (No. 42 of 2018)

The central concept is electrical injury, defined in subsection 7(2) as physical damage to the body as a direct result of the flow of electrical current through the body or across the body surface. This includes damage from an external manufactured source (including an implanted electrical device such as a pacemaker - unexpectedly), being struck by lightning, being in the immediate vicinity of a lightning strike, electrical contact burns, and electrical flash burns. Importantly, it excludes any consequences from exposure to external electromagnetic radiation, which would cover things like microwave or radiofrequency radiation injuries (these are dealt with under other SoPs). The definition also captures death from a terminal event contributed to by the electrical injury. “Terminal event” is defined in the dictionary: pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. So if a person suffers an electrical shock and later dies of cardiac arrest, and the shock contributed to that arrest, the death is considered electrical injury death under this SoP. The instrument assigns ICD‑10‑AM codes T75.0 (effects of lightning) and T75.4 (effects of electric current), but the definition is independent of those codes. The factors are the core of the SoP. Section 9 lists three: (1) having exposure to electrical current at the time of clinical onset; (1A) having exposure to an electric arc across the affected area of the body at the time of clinical onset; and (2) inability to obtain appropriate clinical management for electrical injury. Factor (1) and (1A) require the exposure to be concurrent with the clinical onset of the injury. This is important for delayed‑onset injuries: if a person is shocked but the injury (e.g., peripheral neuropathy) manifests weeks later, the exposure must still be at the time of clinical onset - meaning the clinical onset must coincide with the exposure. Factor (2) only applies to material contribution to or aggravation of a pre‑existing electrical injury that was suffered before or during (but not arising out of) the person’s relevant service. That is, if a person already had an electrical injury from a non‑service cause, and their service prevented them from getting proper medical care, the worsening of that injury can be accepted. But factor (2) cannot be used to establish the original injury itself. The definition of relevant service is critical and often misunderstood. It means (a) eligible war service (other than operational service) under the VEA; (b) defence service (other than hazardous service and British nuclear test defence service) under the VEA; or (c) peacetime service under the MRCA. This excludes all operational service (which attracts the reasonable hypothesis standard) and hazardous service (e.g., service in a combat zone, nuclear test participation). So this SoP only applies to service that is not classified as hazardous or operational - essentially peacetime training, garrison duty, or non‑operational war service. The dictionary also defines MRCA and VEA. The instrument does not define “exposure to electrical current” but the broader context suggests it means contact with an electrical source such that current flows through or across the body. The 2024 amendment added “exposure to an electric arc across the affected area of the body” - this covers arc flash injuries without requiring direct contact (e.g., an electrician working near high‑voltage equipment who sustains burns from the arc). The basis for the factors is stated in section 8: on the sound medical‑scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that electrical injury and death from electrical injury can be related to relevant service. This is a self‑referential justification, not a substantive standard. The instrument also contains a cross‑reference provision (section 11) that incorporates factors from other SoPs if a factor in this SoP references an injury or disease covered by another SoP. This ensures consistency across the SoP system.

The primary affected persons are veterans and members of the Australian Defence Force who have rendered relevant service as defined - that is, non‑operational eligible war service, non‑hazardous defence service, or peacetime service under the MRCA. This includes Permanent Force members during peacetime, Reserve members on peacetime service, and veterans who served in wars but only in non‑operational capacities (e.g., administrative roles in Australia during wartime, or service in a theatre not classified as operational). The instrument does not cover claimants with operational service (e.g., combat, warlike operations) or hazardous service (e.g., serving in specified dangerous posts, British nuclear tests). Those claimants must use the reasonable hypothesis SoP for electrical injury (if one exists) or rely on general causation principles. The instrument affects decision‑makers at the Department of Veterans’ Affairs and the Military Rehabilitation and Compensation Commission, who must apply the SoP when assessing claims under section 120B of the VEA or section 339 of the MRCA. It also affects medical practitioners and advocates who assist claimants: they must structure evidence to meet the specific factors. For example, evidence must show that the electrical current exposure occurred at the time of clinical onset - not before or after. For factor (1A), evidence must show the electric arc was across the affected area of the body. For factor (2), evidence must demonstrate inability to obtain appropriate clinical management, which may require proof that medical care was unavailable, denied, or inaccessible due to service circumstances. The instrument indirectly affects the broader veteran community by creating a precedent for how electrical injuries are assessed. The 2024 amendment also affects electricians and other tradespeople in the ADF, as arc flash injuries are more common in certain trades. The narrow definition of relevant service means many veterans with electrical injuries sustained during training exercises in Australia (which is peacetime service) are covered, but those injured during overseas deployments may not be covered if the deployment is classified as operational service. This creates an odd incentive: a claimant might prefer to argue their service was non‑operational to use the balance‑of‑probabilities standard, because the reasonable hypothesis standard (which requires the hypothesis to be plausible, not probable) might be easier to meet? Actually, the reasonable hypothesis standard is generally easier for claimants because it does not require probability. However, the SoP for operational service might have different factors. In practice, the claimant does not choose; the Commission determines the nature of service. The instrument also affects the Repatriation Medical Authority (RMA) itself, which must keep the SoP updated as medical evidence evolves. The 2024 amendment shows the RMA responded to developments in understanding electric arc injuries. Finally, it affects the courts and tribunals (Administrative Appeals Tribunal, Federal Court) that review decisions; they must apply the SoP as a binding legislative instrument, not merely as a guideline.

The instrument imposes no direct duties on claimants, but it establishes rights to have a claim determined according to the factors. Specifically, a claimant whose relevant service meets the definition has the right to have their claim for electrical injury assessed under sections 9 and 10 of the SoP. The claimant bears the evidentiary burden to prove, on the balance of probabilities, that at least one factor exists and that it is related to their relevant service. The duty lies with the decision‑maker to apply the SoP correctly: they must be satisfied that the factors exist and are related to service. The decision‑maker cannot substitute their own medical opinion for the factors; the SoP is a delegation of the medical‑causation question. Under section 10, the relationship to service must be shown. For factor (2) (inability to obtain appropriate clinical management), the duty is more nuanced: the factor only applies to material contribution to or aggravation of an electrical injury that was suffered or contracted before or during (but did not arise out of) relevant service. This means the decision‑maker must first determine that the original injury was not caused by service, and then assess whether the inability to obtain management contributed to worsening. The instrument creates a right of review via usual VEA and MRCA mechanisms, but does not itself confer a right to appeal. In practice, if a claim is refused because the SoP factors are not met, the claimant can seek review at the AAT. The AAT is bound by the SoP, so the only ground for overturning a refusal would be error in fact‑finding (e.g., whether exposure occurred) or misinterpretation of the SoP. The instrument also gives the RMA a power to determine factors, but that power is exercised through the making of the instrument. There is no express duty on the RMA to update, but the VEA requires the RMA to keep the SoP under review. The instrument does not create any private duties (e.g., for employers or service providers). It only operates in the veterans’ compensation system. However, there is an implicit duty on advocates and legal representatives to know the SoP and advise clients accordingly; misrepresenting the factors could lead to wasted time and costs. The instrument also interacts with the duty of candour in claims: claimants must provide accurate information about their service and medical history. The SoP does not create new rights to medical treatment; it only affects compensation for injuries. One critical right is the ability to rely on factor (2) if a pre‑existing electrical injury was aggravated by lack of clinical management. This can be a powerful right for veterans whose service prevented them from seeking timely care (e.g., isolated postings, operational demands). However, the instrument’s narrow scope excludes many veterans, as noted.

This instrument does not itself impose penalties. It is an evidentiary standard-setting instrument, not a penal law. However, it operates within a broader system that includes penalties for fraud. If a claimant knowingly provides false evidence to establish a factor (e.g., fabricating an exposure event), they may be liable for criminal prosecution under section 208 of the VEA (offences relating to false statements) or under the Commonwealth Criminal Code. Penalties include imprisonment up to 12 months or fines. Similarly, if a decision‑maker or advocate assists in a fraudulent claim, they may face charges. The instrument is enforced through the ordinary review mechanisms: if a claim is granted based on an improper application of the SoP, the Commission can later revoke the determination if it discovers the decision was made on incorrect facts (e.g., the exposure did not occur). Section 31 of the VEA allows the Commission to review and vary decisions. There is no specific enforcement body for the SoP; rather, it is a normative tool used by the Commission and tribunals. The instrument’s amendment history shows that it has been amended - the 2024 amendment was a substantive change to add a factor. This suggests that the RMA monitors the SoP’s operation and adjusts if medical evidence changes or if the instrument is causing injustice. There is no penalty for the RMA if the SoP is found to be flawed; the VEA gives the RMA broad discretion. Practically, the instrument is enforced through the burden of proof in claims. If a claim is granted without meeting the factors, that decision may be challenged by the Commission’s own internal review or by the AAT on appeal by the Commonwealth. Conversely, if a claim is refused and the claimant believes the SoP was misapplied, they can seek review. The AAT and Federal Court can set aside decisions that are based on an erroneous interpretation of the SoP. In that sense, the instrument is enforced by the judiciary through statutory interpretation. The instrument does not create any compliance costs beyond the usual administrative costs of processing claims. However, the existence of the SoP imposes an information cost on claimants: they must gather evidence to match the factors, which may require expert medical opinions to prove the timing and nature of exposure. This is a real cost that can bar access to compensation for less‑resourced veterans. The penalty for failing to meet the SoP is simply denial of the claim - no monetary or criminal penalty attaches to the claimant. The instrument also carries a reputational penalty for the RMA if it is seen as outdated; the 2024 amendment addressed one such gap.

This SoP is expressly made under subsection 196B(3) of the VEA, which empowers the RMA to determine statements of principles for the balance‑of‑probabilities standard. It interacts with the overall veterans’ compensation framework under the VEA and the MRCA. Specifically, it applies to claims under section 120B of the VEA and section 339 of the MRCA. Section 120B(3) of the VEA requires the Commission to be satisfied, on the balance of probabilities, that the injury is related to service, and it must have regard to any SoP determined under subsection 196B(3). The SoP effectively creates a rebuttable presumption: if the factors are met, the Commission must accept the connection; if not, it cannot, unless the Commission is satisfied on other grounds. This SoP also interacts with other SoPs through section 11. If a factor in this SoP refers to an injury or disease covered by another SoP (e.g., if factor (2) mentions a specific condition that is defined by another SoP), then that other SoP’s factors apply. This ensures consistency. For example, if “inability to obtain appropriate clinical management” for electrical injury leads to a secondary condition like depression, and depression is covered by another SoP, then the depression SoP factors would apply to that part of the claim. The instrument also interacts with the Military Rehabilitation and Compensation Act 2004 (MRCA) in analogous ways. For MRCA peacetime service, this SoP applies directly. For MRCA hazardous service and warlike service, a different SoP (reasonable hypothesis) would apply. The instrument does not interact with state workers’ compensation laws; it is exclusively Commonwealth. It does not interact with tort law (civil liability for electrical injuries) except indirectly: if a service person is injured by electrical current due to a third party’s negligence, they may have a common law claim, but any compensation received under the VEA will be deducted from any later judgment. The SoP does not affect that. It also interacts with the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), because decisions under the VEA that apply this SoP are reviewable under the ADJR Act for jurisdictional error, including misapplication of the SoP. The instrument itself is a legislative instrument and may be disallowed by Parliament under the Legislation Act 2003, though that has not happened. The definition of “electrical injury” excludes electromagnetic radiation, which means injuries from radar, communications equipment, or other non‑ionising radiation sources must be considered under other SoPs (if any) or general principles. This avoids overlap with SoPs for ionising radiation or electromagnetic hypersensitivity (though the latter is not recognised). The instrument also interacts with ICD‑10‑AM coding for data collection. The reference to codes T75.0 and T75.4 is for administrative convenience, but the definition of electrical injury is broader and encompasses those codes. Finally, the instrument is subject to the human rights framework under the VEA, though it is not itself a rights instrument. In summary, this SoP operates as a specialised piece within a larger legislative puzzle, and its interaction with other laws is primarily through cross‑references and the hierarchy of service categories.

The original instrument was the Statement of Principles concerning electrical injury (Balance of Probabilities) (No. 42 of 2018), registered on 30 April 2018 and commenced on 28 May 2018. It was amended by the Amendment Statement of Principles concerning electrical injury (Balance of Probabilities) (No. 14 of 2024), registered on 8 January 2024 and commenced on 22 January 2024. The amendment history shows that section 2 and section 4 were repealed by operation of law (under Legislation Act sections 48D and 48C) - these are standard table‑of‑contents and commencement provisions that are self‑repealing. The substantive amendments were to subsection 7(2) (the definition of electrical injury), subsection 9(1) (which was the original sole factor - exposure to electrical current), and the addition of subsection 9(1A) (exposure to an electric arc). The amendment to subsection 7(2) likely added “and includes electrical flash burns” and perhaps clarified the definition. The original 2018 definition may have been narrower, focusing only on current flow through the body. The addition of “electrical flash burns” and the explicit inclusion of arc exposure suggest the RMA recognised that arc injuries can cause significant burns without direct current flow, aligning with modern medical understanding. The amendment also refined the wording of factor (1) - the original may have been worded differently; the current text says “having exposure to electrical current at the time of clinical onset”. The amendment history notes it was “amended” without indicating the nature of the change, but it likely was minor. The amendment also added a new factor (1A), which is a distinct addition. This indicates that before 2024, a person injured by an electric arc (e.g., a flashover without touching a conductor) would have struggled to meet factor (1) because there was no “exposure to electrical current” if no current flowed through the body. The arc would produce thermal burns but not necessarily current flow. Now those injuries are explicitly covered. The amendment also may have addressed the definition of “electrical injury” to include flash burns. The compilation shows only one amending instrument; there are no other amendments. The instrument is now compilation No. 1, meaning it has been amended once. The legislation history notes that the amending instrument was No. 14 of 2024. There are no uncommenced amendments. The RMA likely will review the SoP periodically, but no further amendments are pending as of the compilation date. The amendment history also details the repeal of sections 2 and 4, which is routine. The overall effect of the amendment was to broaden the scope of the SoP, which is beneficial to claimants with arc‑flash injuries. It also increased administrative clarity by explicitly including flash burns. The amendment did not change the application date or any other provisions.

The source document does not cite any litigation history. No cases are named. However, the general context of veterans’ SoPs is that they are frequently litigated in the AAT and Federal Court. For example, decisions under section 120B often turn on whether the SoP factors are correctly interpreted, or whether the evidence supports the existence of a factor. While no specific case is provided, it is safe to infer that this SoP has been the subject of review in individual claims. Because the SoP is binding, litigation often centres on whether the decision‑maker correctly applied the factor - e.g., issues about the meaning of “exposure to electrical current”, whether “clinical onset” occurred at the time of exposure, or whether “inability to obtain appropriate clinical management” is made out. The 2024 amendment may have been prompted by an adverse tribunal decision that exposed a gap in the original SoP. The RMA often amends SoPs after a court or AAT decision identifies a deficiency. Without the source naming cases, we can note that the instrument itself is a legislative instrument that can be challenged on grounds of unreasonableness or jurisdictional error, but the VEA limits the scope of review. The Repatriation Medical Authority’s decisions in making SoPs are not subject to merits review, but the interpretation of the SoP in individual cases is. It is also possible that the SoP was judicially considered in cases dealing with the definition of “electrical injury” and whether it includes non‑contact injuries like arc flash. The addition of factor (1A) suggests such a dispute may have occurred. However, the instruction forbids inventing cases. Therefore, the safest statement is that no litigation history is recorded in the source, and that the instrument, like all SoPs, is subject to judicial and tribunal review in the course of claims. The absence of recorded litigation does not mean it has not been litigated; the source compilation simply does not include case references. The amendment history shows one amendment, which may have been prompted by case law, but that is speculative.

Several nuances can trip up practitioners and claimants. First, the definition of “relevant service” excludes operational service and hazardous service. Many veterans assume that any service during a war qualifies, but only non‑operational aspects are covered by this SoP. For example, a veteran who served in a combat zone but claims an electrical injury from a generator during a non‑operational period (e.g., while on base) may still be deemed to have operational service for that entire period, depending on the instrument of determination. The SoP is strict: it only covers service that is not operational and not hazardous. Second, the factor (1) and (1A) both require exposure “at the time of clinical onset”. This is a temporal requirement that can be difficult to prove if the injury develops gradually. For instance, peripheral neuropathy after an electrical shock may manifest days later; the exposure occurred earlier, not at the later clinical onset. The factor would not be satisfied unless the clinical onset can be identified as contemporaneous with the shock - which is often not the case for nerve damage. The RMA’s view is that the injury must begin at the moment of exposure; delayed‑onset injuries may fall outside the SoP unless factor (2) (inability to obtain clinical management) is used, but that only applies if the injury was pre‑existing. Third, factor (2) is limited to material contribution or aggravation of a pre‑existing electrical injury. It cannot be used to establish the original injury. Also, the pre‑existing injury must have been suffered or contracted before or during (but did not arise out of) relevant service. This means if the injury arose from service, factor (2) is inapplicable. So a claimant cannot rely on factor (2) for an injury that is already accepted as service‑related; it is only for aggravation of a non‑service condition. Fourth, the instrument excludes “any consequences from exposure to external electromagnetic radiation”. This means injuries from electromagnetic fields (e.g., microwave exposure, radiation) are not covered. A claimant who believes their injury is from non‑ionising radiation must use a different SoP or general causation. This can be a trap if the term “electrical injury” is interpreted broadly. Fifth, the dictionary definition of “terminal event” is limited to five specific causes. If a person dies from a complication of electrical injury that does not fall into these categories (e.g., infection from burns leading to sepsis), it may still be covered if the sepsis is a terminal event? The list is exclusive. But sepsis is not listed; only pneumonia, respiratory failure, cardiac arrest, circulatory failure, cessation of brain function. So a death from sepsis would not be considered “death from electrical injury” under this SoP unless the sepsis leads to one of those terminal events. This creates a narrow path for fatal claims. Sixth, the SoP applies only to claims under section 120B VEA and section 339 MRCA. Claims under other provisions (e.g., section 24 VEA for permanent impairment) also rely on the SoP indirectly, but the point is that the SoP is not used for operational service. Seventh, the amendment added a factor for electric arc, but only if the arc is across the affected area of the body. If the arc is not across the area that was injured (e.g., a flash burn to the arm but the arc passed across the face), factor (1A) may not be satisfied. The wording is precise. Eighth, the SoP does not define “exposure to electrical current” - does it require contact, or can it be through arcing? Factor (1A) now covers arcing separately, so exposure to current likely means direct contact. But if a person receives a shock through a tool without direct skin contact (e.g., insulated boot), is that exposure? The definition of electrical injury requires damage from flow of current through the body or across the body surface. So if no current flowed through the body (e.g., static shock with no injury), the factor would still need to exist. Ninth, the instrument has a note about “sound medical‑scientific evidence” but does not incorporate it as a factor; it is just the basis for the RMA’s view. Claimants cannot use that note to argue for additional factors. Tenth, the cross‑reference provision (section 11) can bring in other SoPs, but those SoPs must be in force at the time. If a factor refers to “inability to obtain appropriate clinical management” and that inability leads to a disease that is the subject of another SoP, factors from that SoP apply. This can complicate a claim.

Compliance in this context is about ensuring that a claim for electrical injury is properly founded under the SoP. For claimants and their advocates, the first step is to identify the type of service. Only veterans with relevant service (non‑operational, non‑hazardous, peacetime) are subject to this SoP. If the service is operational or hazardous, the claimant must use the reasonable hypothesis SoP (if one exists) or rely on general causation. The second step is to obtain detailed medical evidence that establishes the existence of at least one factor. For factor (1) (exposure to electrical current at clinical onset), evidence must show the exact time of exposure and the clinical onset of injury occurring simultaneously. This requires contemporaneous medical records or credible witness statements. For factor (1A) (exposure to electric arc across affected area), similar timing and location evidence is needed. Photos of burns, engineering reports, and eyewitness accounts can help. For factor (2) (inability to obtain appropriate clinical management), the claimant must demonstrate that they had a pre‑existing electrical injury (not caused by service) and that their service prevented them from getting proper treatment - e.g., being on a remote posting with no medical facilities, or being denied leave for treatment. Medical opinion on what “appropriate clinical management” would have been is essential. The third step is to link the factor to relevant service. Even if the exposure occurred on base during a training exercise, the claimant must show that the exposure was related to their service (not a private act). This is usually straightforward for on‑duty incidents. For factor (2), the inability to obtain care must be due to service circumstances. The fourth step is to ensure that the injury fits the definition of electrical injury - physical damage from current flow. If the injury is from electromagnetic radiation, the claim will fail. The claimant should confirm with a medical specialist that the diagnosis aligns with ICD‑10‑AM codes T75.0 or T75.4, though the definition is broader. The fifth step is to monitor the SoP for amendments. The 2024 amendment added a factor, so advocates must check the operative date. For decision‑makers at the DVA or MRCC, compliance means applying the SoP strictly. They must not accept a claim if none of the three factors exist. They must also ensure that factor (2) is only applied to material contribution or aggravation of a pre‑existing injury, and that the temporal requirement in factor (1) and (1A) is satisfied. They should request precise evidence of the timing of clinical onset. For medical advisors, compliance involves providing opinions that directly address the factors. A report that simply says “the electrical injury is related to service” is insufficient; it must state whether exposure occurred at clinical onset, or whether there was inability to obtain management. For advocacy organisations, compliance means training staff on the narrow scope of this SoP and the differences from the reasonable hypothesis SoP. They should also be aware that the SoP does not cover all electrical injuries - only those meeting the definition. Practical compliance steps include: gathering all incident reports from the ADF or employer; obtaining emergency department records; securing an expert medical opinion on the causal link; and preparing a statement from the claimant detailing the circumstances of exposure and any barriers to treatment. If the claim is initially rejected, the claimant can request internal review and then AAT review, where the SoP will be central. The AAT must apply the same SoP. The claimant may also consider whether factor (2) applies even if factor (1) does not - but only if the original injury was not service‑related. Finally, keep an eye on the Federal Register of Legislation for future amendments. The RMA may update the SoP again if new medical evidence emerges, such as for low‑voltage injuries or chronic effects.