21.3.4 1930 Act

While SRCA and its predecessor Act require a finding that military employment contributed to the disease, the 1930 Act requires a different consideration.

Relevant legislation: section 10, Commonwealth Employees’ Compensation Act 1930 (‘1930 Act’)

10.(1)  Where–

(a)     an employee is suffering from a disease and is thereby incapacitated for work; or

(b)     the death of an employee is caused by a disease,

and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.

The legislative provision extracted above requires a finding that the disease was ‘due to the nature of the [military] employment’. The High Court case of Connair Pty Ltd v Frederiksen (in considering legislation identical to s10 of the 1930 Act) found that the appropriate enquiry is concerned with the nature of military employment and its tendency to cause, aggravate or accelerate the disease, rather than with how the disease was, in the particular case, contracted or accelerated. In addition, the High Court also commented that:

• there is no suggestion that the risk should be high or that it was necessary the employment should frequently or commonly cause the disease; and
• the tendency does not have to be exclusive to the employment of the kind in question. It is enough if the tendency to expose the employee to the risk of contracting, aggravating or accelerating the disease distinguishes the employment from most other employments.

In the case of Commonwealth v Rutledge [1964] HCA 63, liability was accepted where there was a latent condition, and the nature of the work given to the employee caused that condition to become active.

Policy:

Where it is found that the onset or aggravation of a disease is due to the nature of military employment, and that disease has caused death or incapacity for work, then it would be open to a delegate to accept liability. This approach, while not one which requires total cause or contribution, still requires the nexus between the employment and the claimed condition to be demonstrated. Historically, liability has been accepted for known occupational diseases, or known hazards of particular industries- such as the relationship of silicosis or 'black lung' to underground mining.