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4.4.9 Serious Default, Wilful Act, Breach of Discipline

Situation where the Commonwealth is not liable to compensate

The Commonwealth is not liable in respect of the death, injury or disease where it:

What is regarded as serious or wilful will depend on the circumstances of the case.

Meaning of wilful act

Self-inflicted injuries would normally be regarded as resulting from 'wilful acts' and would not be covered. However, if the person suffers from a defence-caused psychiatric disorder (whether formally determined or not) and that person kills or injures himself or is killed as the result of being under the influence of alcohol, the death or injury would be defence-caused as the person is not capable of a 'wilful' act. Skylarking which results in significant injury would probably be considered to be a 'wilful act' but again, this would depend on the circumstances of the case. If such skylarking has taken place previously and the military authorities have made no attempt to end the practice, the fact that injury results on a specific occasion would not be enough to turn it into a 'wilful act'. The test would therefore be its relationship to the person's duties. An unwilling person who is injured by another members participation in a wilful act, would be covered.

Meaning of serious default or breach of discipline

Simple cases of being absent without leave for short periods or other infringements of discipline that do not result in significant penalties such as imprisonment or discharge would probably not meet the criterion of 'serious'. However, if the person is absent without leave for more that 21 days, that period is not 'effective full-time service' so anything that happens in that time is not covered by the VEA. Actions resulting in civil charges would normally be classed as 'serious'.

Example - serious

In the cases of Nelson, (AAT 10 May 1988) and Lester, (AAT 22 March 1992), the AAT found that breaches of discipline which resulted in imprisonment were 'serious' and debarred the veterans from benefits under the Act.

Example – not serious

In the case of McGrath, (AAT 13 November 1989), the AAT did not consider that taking a jeep without permission on more than one occasion during the week after the Japanese surrender to go and get additional supplies of alcohol was a 'serious default'. This was in view of the lack of discipline that had prevailed in the camp and the amount of alcohol that had been consumed in the camp after receiving the news of the surrender.

However, injuries resulting from the illegal use of vehicles (either military or civilian) in peacetime are not covered as the member's injury would not be causally related to duty.

War-time example - wilful

In a war-time case, the concealing of a physical defect in order that a person could enlist is not considered to be a 'wilful act' in view of the person's desire to serve their country.

According to subsection 5D(1), an injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

  • a disease, or
  • the aggravation of a physical or mental injury.

According to subsection 5D(1), disease means:

  • any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development), or
  • the recurrence of such an ailment, disorder, defect or morbid condition,

but does not include:

  • the aggravation of such an ailment, disorder, defect or morbid condition, or
  • a temporary departure from:

the normal physiological state, or

the accepted ranges of physiological or biochemical measures,

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).

Administrative Appeals Tribunal.