Service must cause or contribute to injury or disease
For a claim in respect of a death, disease or injury to be accepted, the death, disease or injury needs to be causally related to the veteran's or member's VEA service. Service does not have to be the only cause however, provided that the person's service was a material contribution to the injury, disease or death. Where an injury is involved, there will normally be only one cause. Where a disease is involved, there may be a number of causes.
Example – relationship to service
A veteran lodges a claim in respect of a heart condition. The risk factors in the veteran's case are the veteran's cigarette smoking which was initiated by the conditions of their war service, their age, their family history, and their high cholesterol levels. Only the cigarette smoking can be related to the veteran's service but that is enough to have the claim accepted.
Conditions for peacetime defence service
Members of the Defence Force are bound to render continuous full time military service under the provisions of the Defence Act. They are thus on duty or on call twenty-four hours of a day, seven days a week, and are often required to live on the job in Service barracks or in camp. This does not mean however that all their activities are related to their defence service. It also does not mean that only injuries occurring while the person is 'on duty' can be accepted.
Resulted from an occurrence
Veterans who have rendered operational service and members who have rendered peacekeeping service can have a claim accepted if the condition claimed resulted from an occurrence that happened while the veteran was rendering operational service or while the member was rendering peacekeeping service. The following table outlines what cases injuries, diseases or death will be accepted as service-caused, according to the type of service rendered.
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If the veteran served... |
then... |
and they will be covered for... |
|
during World War 1 and World War 2, |
all of their service is considered to be operational service unless there was a break between their operational service and any other service. |
injuries, diseases or death resulting from an occurrence even if it occurred during a period of leave, e.g., if they were knocked over by a bus in the streets of Sydney. |
|
in later conflicts |
only the period in which they were outside Australia is operational service.
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events that occurred on the ship taking them to or from operational service provided it occurred after they had left the last port of call in Australia or before reaching the first point of call in Australia. |
'But for' provisions
Section 8(1) (d) VEA - War-caused death - veterans
Section 9(2) VEA - War-caused injury or disease - veterans
Section 70(6) VEA Death of a member
Section 70(7) VEA Incapacity of a member
A death, injury or disease may be accepted as service-caused if it was due to an accident that would not have occurred or a disease that would not have been contracted, but for:
- the member having rendered defence service or peacekeeping service (including hazardous service), as the case may be, or
- changes in the member's environment consequent upon the member having rendered any such service.
Examples – 'But for' provisions
The 'but for' provision extends the circumstances under which a causal connection to service can be established. For example:
- a member who contracts a tropical disease while on a goodwill visit to another country is unlikely to have contracted that disease but for the member's ship having been sent to that area,
- a member who is attacked by local inhabitants of another country is unlikely to have been injured in that way but for the member having been posted to that country,
- the change of environment from one part of Australia to another may result in the member developing a disease that would not have been contracted in the member's local environment,
- a member may also contract a disease through living in a barracks environment.
Material contribution
The meaning of ‘material contribution’ was given by the Federal Court in Repatriation Commission v Richard Edward Bendy [1989] FCA 170:
In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term "material" is here used not in the loose sense set out in definition 12 of the Macquarie dictionary, namely, "of substantial import or much consequence" but rather in its legal sense of "pertinent" or "likely to influence".
Thus for an incident or exposure to make a material contribution to an injury or disease (including an injury or disease from which a person died), it must have been a contributing cause in a more than trivial sense. However, the causal contribution does not need to be of a substantial or significant nature.
The application the material contribution test to the SoP framework was clarified by the Federal Court in Kattenberg v Repatriation Commission [2002] FCA 412 (‘Kattenberg’). The material contribution test is relevant to SoPs where there is a factor specifying a minimum accumulation of consumption or exposure over time.
The Kattenberg decision turned on the words 'related to' contained within the SoP framework and requiring that a SoP factor be 'related to' service. If the minimum accumulation of consumption or exposure has been contributed to in a material degree by service then the injury, disease or death is considered to be 'related to' service.
For a claim relating to this type of SoP factor to succeed, it is necessary in the first instance for the minimum accumulation specified in a factor to be met (i.e. both service-caused and non-service-caused consumption or exposure).
Where service-caused consumption (e.g. smoking at least 15 pack years of cigarettes) or exposure (e.g. manually lifting at least 35 kilograms to a cumulative total of 168,000 kilograms within any 10 year period) meets the minimum accumulation by itself, the claim will succeed and there is no need to apply the material contribution test.
However, the Kattenberg decision clarified that it is not necessary for the entire consumption or exposure to be caused by service, rather the service-caused consumption or exposure only needs to make a material contribution.
If the service-caused consumption or exposure can be shown to be more than a trivial contribution to the entire accumulation, then it is a material contribution. Where the entire accumulation (both service caused and non-service caused) meets the minimum specified in the SoP and the service-caused consumption or exposure materially contributes to the injury, disease or death, then claim will succeed.
The threshold for what proportion of the SoP-specified minimum accumulation the service-caused consumption or exposure is required to be considered a material contribution will depend on a variety of factors relating to the relevant SoP and the specific case. Thus it is not possible to develop a formula that a contribution of X per cent or more is material in all cases.