Veterans' Review Board
Home | About the VRB | Contact us | Members and Staff | Publications | Factsheets | ADR trial | Links | Notices | Vacancies | Site map

Military Rehabilitation and Compensation Commission and Archer

[2010] AATA 525

TRIBUNAL Administrative Appeals Tribunal, Hobart
MEMBERS Hon R J Groom (Deputy President)
Dr R J Walters RFD (Member)
DECISION The decision under review is affirmed
ISSUES Whether injuries were “service injuries” as defined in section 27

Facts

Mr Archer served in the Australian Regular Army and was seriously injured in 2005 when he fell from the third floor balcony of his accommodation on base.  He claimed compensation under the Military Rehabilitation and Compensation Act 2004 (MRCA).  A delegate of the Military Rehabilitation and Compensation Commission (MRCC) rejected his claim.  On reconsideration, the original determination was affirmed. The Veterans’ Review Board (VRB) set aside the determination and substituted a decision that Mr Archer had suffered a “service injury” under section 27(c) of the MRCA and therefore was entitled to compensation. The MRCC sought a review by the Administrative Appeals Tribunal (the Tribunal) of the VRB decision.
                                                             

Issues before the Tribunal

Mr Archer rendered peacetime service under the MRCA, so the matter had to be decided to the Tribunal’s reasonable satisfaction.  The VRB finding that the requirements of section 339 (with reference to the relevant Statement of Principles) had been met was not in issue.

The issues to be determined by the Tribunal were whether the injuries sustained by Mr Archer were “service injuries” as defined in section 27 of the MRCA under the “occurrence”, “arose out of, or attributable to” or “but for” provisions.  

It was agreed that section 32 of the MRCA, which excludes liability to pay compensation if the injury resulted from being under the influence of alcohol, did not apply as Mr Archer’s injuries had caused a serious and permanent impairment. 

The Tribunal’s Consideration

Firstly, the Tribunal considered and made findings on key facts.  Secondly, the Tribunal considered the principal issues to be determined. 

Occurrence

In considering whether Mr Archer’s injuries resulted from an occurrence while he was rendering defence service, the Tribunal took the view that this test may, in some circumstances, be more difficult to satisfy that other two relevant alternate tests, as:

As the Tribunal found that the other two relevant alternate tests were satisfied, the Tribunal did not consider it was necessary to express a final view on the occurrence provision.

Arose out of, or attributable to

In considering whether Mr Archer’s injuries arose out of or were attributable to any defence service rendered by him, the Tribunal noted the majority in Roncevich v Repatriation Commission [2005] HCA 40 (involving similar facts) held:

The Tribunal considered a number of facts together established a strong connecting link between Mr Archer’s injuries and his defence service, and the important issue was the effect of the culture and influences at the base on Mr Archer, and the part they played, directly or indirectly, in contributing to his fall and injuries.  The Tribunal was satisfied on the material before it, that there was encouragement of socialising and drinking at the base.   The Tribunal also considered two matters which the majority in Roncevich determined to be relevant considerations - that Mr Archer’s fall and his injuries occurred at the army base and at that time he was subject to military discipline.  The Tribunal found the following causative factors established Mr Archer’s defence service contributed to his fall and injuries:

Therefore, following the broad approach in Roncevich, the Tribunal found there was a sufficient causal nexus to establish that Mr Archer’s injuries were attributable to the defence service rendered by him.

But for

Finally, the Tribunal considered whether Mr Archer’s injuries would not have occurred but for his defence service.  Although the ordinary meaning of these words appear to be very wide, the Tribunal referred to comments made by Justice Madjwick in MRCC v Roberts [2007] FCA 1, “that the concept of ‘but for’ implies, indeed is synonymous with, some kind of causal connection”.

The Tribunal took the view that the causal factors linking   Mr Archer’s defence service to his injuries (detailed above) were also sufficient to satisfy the “but for” test.

The Tribunal concluded the injuries suffered by Mr Archer in the fall at the army base on 6 March 2005 were service injuries within the meaning of section 27.

Formal decision

The Tribunal affirmed the decision under review.

Editorial note

In Re Archer, the Tribunal considered the decision in Roncevich, where the High Court adopted a purposive approach to what was an injury which "arose out of, or was attributable to defence service", the test in section 70(5)(a) of the VEA.  The Court found that any activity that an employee is "reasonably required, expected or authorised to do to carry out his duties" amounts to defence service for the purpose of the provision.  That is, service extends to any activity "incidental" to the actual work the person is employed or "expected" to do as part of service.  Applying the broad approach in Roncevich, the Tribunal found that the "arose out of, or attributable to" and "but for" tests in section 27 of the MRCA were satisfied. 

Further reading:

For further reading on how Roncevich has been applied in recent SRCA and MRCA decisions please see Verbosity Vol 25 pages 11-13.

All Practice Notes