Incurred Danger | Compensation and Support Policy Library, Part 1 Service Requirements, 1.2 Service Types, 1.2.1 Qualifying Service

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Incurred Danger

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The question of ‘what is incurred danger’ has been tested in a number of Federal Court decisions[1]. Following these decisions, DVA holds the view that danger is not incurred by merely perceiving or fearing danger. It is incurred when a person is exposed to, or in peril of, actual physical or mental injury or harm from hostile forces.

Delegate assessment of incurred danger

Delegates have to make an objective assessment of the military realities of the claimant's circumstances. They must be reasonably satisfied that the claimant was exposed to, at risk of, or in peril of harm or injury from hostile forces of the enemy. 

How may it be established that a person ‘incurred danger’

Establishing whether specific events occurred during a conflict can be particularly difficult.  Nevertheless, as with every other element of a claim, the assertion that danger was incurred must be supported by objective, external evidence. 

Further, the evidence must be sufficient to permit a delegate to be satisfied that (per the balance of probabilities standard) it was more likely than not that the claimant was in peril of actual physical or mental injury or harm from hostile forces. 

It is clear that there may be instances during conflicts where certain individuals alone are at peril of harm.

However, activities or events that place a unit, ship, or aircrew in peril of injury or harm from hostile forces of the enemy are such that every member of that unit, ship or aircrew may be considered to have incurred danger.

This does not imply that simply being a member of the ADF is sufficient evidence of being at peril of harm from hostile forces.   Further, exceptions to this principle may be provided by evidence that an individual demonstrably was not subject to danger.

The following case studies (Creyke and Sutherland 2015) [2] provide examples of claims where danger was found to have been incurred, and situations where the claim was not accepted.

Case studies: Danger incurred

  • Re Trott and Repatriation Commissioner (2004): service on the British aircraft carrier HMS Centaur in Far East Waters during the Confrontation with Indonesia in 1964.

  • While no specific incidents of danger were recognised by the (Administrative Appeals) Tribunal, it found Trott had incurred danger because his ship was an active participant in fleet air and sea operations against hostile forces.

  • The fire fights between allied and Indonesian forces and Indonesian Shore Battery attacks on allied forces in the Malacca and Singapore Straits clearly shows that HMS Centaur, and its passage of these Straits, was in the presence of an armed enemy, capable of prosecuting their cause and causing harm or injury to the ship and its crew.

  • Re Carlyon and Repatriation Commission (1998): service in Townsville between May and December 1942.

  • During this period the city was bombed on three occasions, one bomb landing no more than two kilometres from where the veteran was stationed.

  • The Tribunal found that the veteran did not need to have suffered actual physical or mental injury in order to incur danger.

  • Re Bray and Repatriation Commission (1997): a military member of the Australia New Guinea Administrative Unit (ANGAU) was operating in a war-zone – the Southwest Pacific Theatre – in 1944-45.

  • Bray was involved in signals on Yule Island and this represented direct involvement against the enemy during the currency of the war.

Danger NOT incurred

  • Re Poppi and Repatriation Commission (2008): service in Townsville after the raids, at the end of July 1942, guarding two unexploded bombs on or near the beach until a bomb disposal team arrived from Melbourne.

    • On the basis of service records, the Tribunal did not accept that the incident occurred, and held that, even if it had occurred, standing guard in these circumstances did not suggest Mr Poppi incurred danger in the sense that he was ‘exposed, at risk or, or in peril of harm or injury.

    • Re Verth and Repatriation Commission (2001): a “Commonwealth veteran” on operational service at Simmangang airfields in Sarawak near the Indonesian border for several weeks in 1963.

      • While he may have considered himself in danger, both airfields were secure, his period at Simmangang was of few weeks duration and at a time when civilians were permitted in the area and by his own admissions no incidents occurred which would have exposed him to peril, harm or injury.

      • This decision was upheld on appeal by the Federal Court in Verth v Repatriation Commission (2002).

  • Re Gittoes and Repatriation Commission (1990): the vehicle Gittoes was driving was fired on, on two consecutive days, during service in Labuan, off North Borneo, now Malaysia, between 2 October 1945 and 11 January 1946, following the official surrender of the Japanese.

    • The Tribunal notes that there was no direct evidence of the identity of the parties that opened fire. It could only be speculation that it was a Japanese straggler. It might equally have been local tribesmen, mischievous children or disgruntled Malays.

Periods of service when the incurred danger test applies

Australian Defence Force Members

Per s7A(1)(a)(i), the incurred danger test is relevant to claims for qualifying service by ADF members in regard to service during World War I and World War II only.

The Repatriation Commission has deemed the following aspects of World War II service, as qualifying service, without the requirement to apply the incurred danger test:

Service outside Australia during World War II:

  • in any area other than the West Pacific area from 3 September 1939 to 5 May 1945 inclusive;

  • in the West Pacific area (except Papua and New Guinea and New Britain) from 3 September 1939 to 15 August 1945, as bounded by:

    • in the west, longitude 90 degrees east (the meridian intersecting the coast of modern Bangladesh);

    • in the east, longitude 165 degrees east;

    • in the south, latitude 10 degrees south (including Papua and New Guinea); and

    • in the north, by and including the eastern regions of the Asian continent.

  • Papua and New Guinea, including New Britain, from 7 December 1941 to 15 August 1945; or

  • In an aircraft engaged in operations against hostile forces, or in patrols of reconnaissance over land occupied by hostile forces in one of the areas above during the periods prescribed above.

Service within Australia during World War II:

  • of three continuous months or more in the Northern Territory north of latitude 14.5 degrees south, and the islands contiguous to that part of the Northern Territory, between 19 February 1942 and 12 November 1943;

  • in the coastal waters from Exmouth Gulf to Thursday Island, between 19 February 1942 and 12 November 1943, without qualification as to the length of service in that area;

  • of three continuous months or more in the Torres Strait Islands between 14 March 1942 and 18 June 1943;

  • in the waters travelling to, or outside the three-mile limit of the Torres Strait Islands, between 3 September 1939 and 16 September 1943

Service during World War II but not in one of the places and at the time described above, may still provide qualifying service if the claimant is able to provide details of the danger they incurred from hostile forces of the enemy before 29 October 1945.

Post-World War II service used the allotment process from 1950 until this system was in turn replaced when Defence introduced the concept of warlike and non-warlike service in 1993. These new concepts were reflected in the VEA in 1997 and continue to apply today.

Allied or Commonwealth veterans

Eligibility for qualifying service by an Allied or Commonwealth veteran requires satisfaction of the incurred danger test, and is relevant to service during one of the following periods of hostilities only:

  • World War I (4 August 1914 – 11 November 1918);

  • World War II (3 September 1939 to 29 October 1945);

  • Korea (27 June 1950 to 19 April 1956);

  • Malaya (29 June 1950 to 31 August 1957);

  • Vietnam and Malaysia (Confrontation) (31 July 1962 to 11 January 1973).

The Commonwealth or allied veterans provision does not apply past 11 January 1973, the last date for periods of hostility defined at ss5D(1) of the VEA
 

[1] Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law, 3rd ed. (pp108 – 115)

[2] Additional case studies are included in Creyke & Sutherland (pp115 – 121)