Boys and Repatriation Commission [2011] AATA 389 (6 June 2011)

Last Updated: 7 June 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 389

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4464

VETERANS' APPEALS DIVISION		)
	Re		DALE BOYS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr K S Levy RFD, Senior Member

Date 6 June 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...................[Sgd]...........................
Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Pension – Eligible defence service with Australian Army – Motor vehicle accident resulting in frontal lobe dysfunction – Motor vehicle accident occurred during personal activity unrelated to official duties – Frontal lobe dysfunction not defence-caused – Decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) s 68, 70(5), 70(7), 120(4)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281

Holthouse v Repatriation Commission (1982) 1 RPD 287; [1982] FCA 113

Re Brown and Repatriation Commission (1990) 80 ALD 850

Re Penhall and Repatriation Commission (1992) 28 ALD 26

Repatriation Commission v Law [1980] FCA 92; (1980) 31 ALR 140

Repatriation Commission v Smith (1987) 15 FCR 327

Roncevich v Repatriation Commission (2005) 218 ALR 733; [2005] HCA 40

The Commonwealth v Wright [1956] HCA 79; (1956) 96 CLR 536

Woodward v Repatriation Commission [2006] AATA 1099

REASONS FOR DECISION

6 June 2011

Dr K S Levy RFD, Senior Member

INTRODUCTION

1. Dale Boys served with the Australian Army in the Royal Australian Corps of Transport (RACT) from 6 June 1979 to 30 June 1986. It is accepted by the respondent that his service in that period constitutes eligible defence service under s 68 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). He has previously applied for recognition of a number of conditions, including frontal lobe dysfunction. As a result, he seeks to be granted a pension on the grounds that his frontal lobe dysfunction is connected with his eligible defence service. His application to the Repatriation Commission in respect of this condition was dated 30 November 2009. The Commission rejected his application on 2 March 2010 (the original decision). He sought review by the Veterans’ Review Board, which affirmed the original decision on 22 September 2010.
2. Mr Boys now appeals to this Tribunal for further review of the original decision to reject his application for pension.

ISSUE

3. The issue for determination is:

Is the applicant’s condition of frontal lobe dysfunction connected to his eligible defence service in terms of the law prescribed under s 70(5) of the Act?

THE APPLICANT’S CASE

4. Mr Boys was represented by his advocate Mr Horan. Mr Horan submitted on his behalf that:
   • (a) While Mr Boys was posted to the Land Warfare Centre at Canungra (LWC), he made a private arrangement with an Army colleague in relation to the repair of his car. Mr Boys and his colleague agreed to leave his car with his colleague on 22 October 1983. The colleague would arrange for repairs to the transmission of the car in Canungra village, while Mr Boys left early that morning from LWC on the Army courier bus to attend a medical appointment in Brisbane. In turn, his friend loaned Mr Boys his motorcycle so that he could return from Canungra village to LWC. The applicant’s case is that this private arrangement is related to his defence service as there was ultimately a disruption that day of his planned arrangement with his colleague when the courier bus arrived back late to LWC.
   • (b) The return of his friend’s motorcycle led to the motor vehicle accident and as a result, he suffered frontal lobe dysfunction (see ‘The Evidence’ section).
   • (c) The medical appointment in Brisbane was to attend for eye exercises with an orthoptist. This treatment was part of his entitlement to medical treatment and was critical to him retaining his Employment Code Number (ECN) (or trade) in the RACT.
   • (d) Mr Boys had been placed on restricted duties because of his eye condition as he was employed as a driver. The restriction enabled him to drive in the local area only.
   • (e) Mr Boys and his colleague had arranged to exchange Mr Boys’ car and his colleague’s motorcycle at the end of the working day when the bus was due back at LWC. The return of his friend’s motorcycle and picking up of his own vehicle at Mr Boys’ colleague’s residence outside the barracks is said to be in “... special nature of military service” and the duty on servicemen to assist colleagues whenever the need arose: Burns and Repatriation Commission [1995] AATA 494 (“Burns”).
   • (f) Mr Boys’ friend saw it as his obligation to assist Mr Boys to get his vehicle repaired and loaned him his motorcycle as part of this arrangement. Mr Boys’ case is that the High Court’s interpretation of s 70(5) in Roncevich v Repatriation Commission [2005] HCA 40; (2005) 218 ALR 733 (“Roncevich”), requiring a broad meaning to be given to ‘defence-caused’, justifies a decision in the applicant’s favour. It is said the duty on servicemen to assist colleagues “is a two-sided responsibility”: in this case the colleague assisted Mr Boys on the day in question as Mr Boys could not be in Canungra to arrange repair of his car; and subsequently, Mr Boys had an obligation to return the friend’s motorcycle even though it was much later in the evening than expected and his friend lived in Canungra township and not on the army base.

THE RESPONDENT’S CASE

5. The respondent also relied on s 70(5) of the Act. Reference was also made to s 70(7). In addition, the respondent said the matter can be distinguished from Roncevich and is more akin to Holthouse and Repatriation Commission (1982) 1 RPD at 287 (“Holthouse”).

THE EVIDENCE

6. Mr Boys was employed as a driver in the Army. On the day of the accident which caused injury to Mr Boys, he was getting treatment to correct his vision. The Army medical officer arranged for him to attend an orthoptist in Brisbane who provided eye exercises. There is no dispute that this was important for his continued employment in his trade in the Army.
7. His car needed repair. He arranged for a friend to take his car to a mechanic in Canungra for repair and he anticipated getting back to the base at the end of the working day by the courier bus after he had attended his eye appointment. The courier bus took soldiers from LWC to Brisbane for various appointments, making deliveries and undertaking other tasks along the way on behalf of units at LWC.
8. Mr Boys’ evidence is that, unusually, the bus was very late and did not return to LWC until about 8.00pm that day. He could not recall why it was late.
9. He had arranged to meet his friend in the Soldiers’ Club earlier in the evening. When he went to the Club and enquired of his friend, other soldiers there told him that his friend had left much earlier. He rang his friend from the Club, who asked him to return his motorcycle to him that night. Mr Boys said even though he had not eaten throughout the day, he had one beer in the Club and then left the barracks area to return his friend’s motorcycle to him.
10. Not far out of the barracks, he was riding the motorcycle up a hill when he collided with a motor vehicle, ran off the road and crashed. He was apparently dazed by the headlights of the oncoming vehicle. He was found shortly after by the wife of another soldier who knew him. He was unconscious and taken to the hospital by ambulance.

Medical Evidence

11. The medical evidence is extensive. There was an earlier report of Dr John Cameron, Consultant Neurologist, of 22 June 1997 who attributed Mr Boys’ memory deficits to the motor vehicle accident but concluded that it was not materially contributed to by his military employment. Interestingly, Dr Cameron referred to the condition as follows:

... a combination of muscular contraction headaches and migraine headaches. He is also suffering from quite prominent memory and, to a lesser extent, personality change related to brain injury.

12. Dr Cameron does not refer to the condition as frontal lobe dysfunction.
13. Also at that time he was seen by a consultant psychologist, Dr Elsie Harwood, who was then a highly respected psychologist and Professor of Psychology at the University of Queensland. She reported that, following extensive psychological testing, sub-test results showed clearly that there was frontal lobe dysfunction but other areas of the brain were not affected. In particular, she commented that his short term memory and long term memory were affected (see applicant’s document A23).
14. Dr Peter Landy, Neurologist, also diagnosed memory impairment in 1988 based on Dr Harwood’s tests and report. A medical board examination record from the army medical documents shows that after the accident, Mr Boys was reported as having poor memory. It also noted he had been under the care of a psychiatrist for various pre-existing conditions prior to the accident (Exhibit 1, folio 33). By November 1985, his discharge medical documents show he had had various psychiatric conditions and been an inpatient in a hospital for anxiety, depression and personality problems (Exhibit 1, folio 34).
15. There was also reference to previous motor vehicle accidents after which Mr Boys had lost confidence, but that was not elaborated on in the medical board report (dated 11 October 1984). It was also mentioned by Dr John Cameron in his report but not commented upon further. There is also a report by visiting psychiatrist Dr Theodoros in October 1983 highlighting serious psychological problems and alcohol use around that time (Exhibit 1, folios 62 and 63).
16. In Mr Boys’ claim documentation, he had completed comprehensive questionnaires about cigarette smoking (Exhibit 1, folios 7 to 16) and other personal details (Exhibit 1, folios 17 to 30). The issue of his frontal lobe dysfunction is not specifically mentioned in these documents. It may be that he saw those forms only in relation to his back pain and other claims unrelated to frontal lobe dysfunction.

CONSIDERATION

17. There is ample evidence, which is uncontradicted, that the correct diagnosis in this claim is frontal lobe dysfunction. There is no Statement of Principles (SoP) which exists or which is relevant to this condition and therefore the claim must be assessed on the basis of s 120(4) of the Act, which requires assessment to the standard of reasonable satisfaction, or, in colloquial legal language, on the balance of probabilities.
18. The relevant statutory provisions state:

SECT 70
Eligibility for pension under this Part

...

(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b) subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c) the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d) the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e) the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence-caused injury or defence-caused disease, as the case may be;
Note: The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence-caused, the death is to be taken to have been defence-caused. Accordingly the Commission is not required to relate the death to defence service or peacekeeping service rendered by the member and sections 120A and 120B do not apply.
but not otherwise.
Note: After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for some new defence-caused injuries, diseases and deaths: see section 70A.
...
(7) Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service:
(a) if the incapacity of the member was due to an accident--that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or
(b) if the incapacity was due to a disease--the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.

19. The questions about whether the applicant falls within any of these provisions revolves around whether, at the time of his accident:

(1) the injury “arose out of or was attributable to” his defence service (s 70(5)(a));

(2) the injury was “contributed to in a material degree” by his defence service (s 70(5)(d)); or

(3) the injury would not have occurred “but for” his having rendered defence service; or “but for” changes in the member’s environment upon his or her having rendered any military service (s 70(7)).

20. I now consider the first question above, ie whether the injury “arose out of” or “was attributable to” Mr Boys’ defence service. The accident which occurred after Mr Boys left LWC and proceeded towards his friend’s residence after 8.00pm in the evening, must satisfy the legal test in s 70(5)(a).
21. In The Commonwealth v Wright [1956] HCA 79; (1956) 96 CLR 536, the High Court held, by majority, that in order to succeed, travelling back to a camp must be for the purpose of carrying out a member’s employment or trade in the defence service. Therefore, there cannot merely be travelling to or from employment but there must be a “real connection” between the travel and the official duties of the serviceman.
22. Further, the High Court held in Roncevich that the question relevant to s 70(5) was whether the serviceman was “on duty” at the time of the injury. Whether an injury “arose out of” an activity requires a consideration of factors relevant to the person’s employment, such as:
    • (a) “... the circumstances in which it is undertaken...”; and as a consequence

(b) “... what ... the person is required or expected to do to carry out the actual duties ...” at [23].

23. These tests also required that the connection between the injury and the service employment must be “a causal and not merely a temporal one”. They were applied by the Tribunal in Woodward and Repatriation Commission [2006] AATA 1099 (“Woodward”).
24. In Roncevich, the High Court referred to a broader notion of activities being related to defence service than merely those with formal legal imperatives or those with disciplinary consequences. The appellant in that case was successful as he was a Sergeant and was required to attend a formal mess function of the most senior Warrant Officer in the Army. The High Court said that the applicant in that case had a service obligation as there was an “expectation” or an informal “requirement” that he attend (at [24]). In other words, Roncevich identified an “expectation” which had some degree of (even informal) compulsion. The High Court there approved the dissenting judgement of Heerey J in the Full Federal Court where His Honour had cited the High Court decision in Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281, where the connection with defence service was said to include activity “incidental to the performance of work” or what the person “... is reasonably required, expected or authorised to do in order to carry out his actual duties” [at 17; emphasis by Heerey J].
25. Not every injury which occurs while a person is employed by the defence force will be connected with service as in some circumstances they occur during personal, not professional activities (see Holthouse). Such was the case in Woodward where the applicant’s psychiatric conditions occurred during Cyclone Tracey in Darwin but there were other private and personal factors involved and which provided the circumstances in which the psychiatric conditions developed. The applicant there was not successful.
26. The second question is whether the injury was contributed to in a material degree as a result of the applicant’s defence service (s 70(5)(d)). Here, the injury must be inextricably connected to the incidence of service. In Repatriation Commission v Law [1980] FCA 92; (1980) 31 ALR 140, the Full Court of the Federal Court said the term “has arisen out of” (as used in s 101 of the former Act), does not mean a “proximate causal relationship”, and describing the a relationship as one which is “...‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause” therefore does not add any precision to the term in s 70(5) (at page 150). However, that broad meaning must not be “fanciful” or “so tenuous” as to require a circumstance to be rejected (at page 150). Under the current Act, it must be more than a mere temporal connection which coincides with when a person was a member of the defence force (Re Penhall and Repatriation Commission (1992) 28 ALD 26).
27. The third question requires satisfaction of a “but for” test (see Roncevich). There, the High Court regarded the deeming provision in s 70(7) to be an alternative to the test that an injury “arose out of” or was “attributable to” defence service. The applicant argued that there was an informal obligation on Mr Boys’ army colleague where every defence force member had an obligation to assist other members of the defence force. To support that argument, the applicant referred me to Burns. In that case, evidence was given from a retired warrant officer that such an obligation existed 24 hours a day.
28. The respondent said the above submission of the applicant is adequately answered in paragraph 51 of Burns, where it was held the injury was connected to service because there was “a sufficiency and pertinence rendering the injury to have been an attribute – indeed a consequence – of his service” (refer also to Re Brown and Repatriation Commission (1990) 80 ALD 850). I agree with the respondent’s submission. The third question cannot be satisfied by the applicant.
29. Considering the application of those statutory provisions and common law findings, the evidence here shows Mr Boys had had some medical treatment for a number of conditions. His continued service may have been in doubt if his medical conditions were not resolved. One of the critical conditions was his treatment by an orthoptist with eye exercises to improve his vision. Because of that condition, he had a restriction on his duties as a driver for a period prior to the accident. On the day of the accident, this was the applicant’s last appointment with the orthoptist. Also, Mr Boys’ evidence (supported by the medical documents presented to the Tribunal) was that his restricted duties had been lifted (at least by the passage of time) by the time of the final appointment with the orthoptist. His accident was seen as being due to the late arrival of the bus. Mr Boys’ evidence was that, in his experience, he could not recall the bus having been late on previous occasions. He provided no other evidence or explanation for the assertion that the bus was late.
30. I agree with the respondent’s submission that this case can be appropriately answered by reference to the provision of s 70(5), i.e. by reference to questions 1 and 2 above. Given the number of independent factors influencing whether the road accident would be likely to occur, it cannot be concluded that the road accident would not have occurred had the bus not returned late on that day. Looking at the evidence as a whole, Mr Boys was being treated for other conditions over that period in addition to treatment by the orthoptist. Mr Boys also had a small amount of alcohol on an empty stomach. Therefore, accident could not be said, in terms of s 70(5) and at the required standards of proof, that it would not have occurred “but for” his military service. His military service was too remote from those facts. Furthermore, the changes in his environment upon returning to LWC, the unexplained late arrival of the bus and the period of private time at the Soldiers Club, were not contributed to in a material degree by his defence service. The arrangement between Mr Boys and his colleague was a private one and carrying out that arrangement, even if the bus returned late, did not have a sufficient or pertinent connection to his injury. The second question [s 70(5)(d)] is therefore answered in the negative.
31. The real question therefore is whether the request by Mr Boys’ friend that he return his motorcycle that night, which resulted in the injury, was an activity “arising out of” or “attributable to” his defence service. Mr Boys was not on duty. There was no substantive or “real” connection between his official service duties and his travel at the time of the accident: The Commonwealth v Wright. The applicant’s submission that there was a mere obligation to always assist a defence colleague, based on Burns, is not sustainable. The real test is that laid down by the High Court in Roncevich. While the connection with service is not a narrow test but must be seen more broadly, the activity of the person must still be “... reasonably required, expected or authorised” for the person to carry out his actual military duties. The applicant in Roncevich was not on duty except to say that he attended a mess function because of a culture or requirement. It was a service obligation which directly arose out of his military rank. The principle upon which that decision was made was that the connection to service must be a causal and not merely a temporal one.
32. Mr Boys’ case cannot be seen to be in the same circumstances as Roncevich. He was not of a rank attending to an official service obligation, as was the appellant in Roncevich. Mr Boys’ arrangement with his friend was not in connection with his official duties (Roncevich). Similarly to Woodward, the need to have his car repaired was the initiating circumstance, not his defence service, which led to the trip to his colleague’s house and which resulted in the injury. This logic can be seen in the plain reasoning of Davies J in Holthouse, who said of the facts in that case that the Defence Forces had “no concern” about how or where Mr Holthouse maintained his pot plant. “The Defence Forces were totally indifferent to these matters”. So it is in the present case. This is because it was a personal arrangement as Mr Boys was not on duty or performing any function which was connected with his military obligations while off duty.
33. Therefore, this circumstance does not have a real connection with his defence service in terms of s 70(5)(a) (Question 1).
34. Under the three tests above, it was incumbent on Mr Boys to demonstrate to the Tribunal’s reasonable satisfaction that the actions he carried out at the time of the motorcycle accident were incidental to his defence service [s 120(4); Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Repatriation Commission v Smith (1987) 15 FCR 327]. That standard of proof was not satisfied.
35. Therefore, frontal lobe dysfunction is not connected to Mr Boys’ defence service.

DECISION

36. The decision under review is therefore affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: .....................[Sgd]........................................................

Associate

Date/s of Hearing 7 April 2011

Date of Decision 6 June 2011

The Applicant was represented by Mr John Horan

The Respondent was represented by Mr Bruce Williams