Policy

Where an injury or disease has been diagnosed by the ADF Medical Service prior to the member's discharge, it may be possible to determine liability on the basis of existing documents (i.e. where the factual circumstances leading to the onset of the disease, are clear). Delegates, not doctors, are the decision makers. A formal medical opinion by a doctor on the causation of an injury or a disease is not necessary if the medical facts of the matter are already evident to the Delegate, i.e. on the basis of the available papers.

Delegates will also recall from Part 10 of this handbook, that a sudden, singular medical event such as a 'stroke' or a 'heart attack' must be regarded as an injury and not a disease, even though it may be the inevitable outcome of a prolonged disease process. In line with the 'no fault' doctrine underlying the legislation, spontaneously-arising injuries that occur on duty are compensable, even if there is no workplace contribution to the event, nor any employment related contribution to the underlying disease process.

An 'act of violence' does not include just any sort of violent occurrence, i.e. a vehicle crash or an accidental explosion of a gas main. In the context of S6(1)(a), its meaning is confined to a deliberate act of a violent nature, i.e. primarily an assault.

Last amended: 10 April 2012

Injuries or diseases which are claimed as a consequence of alleged sexual assault or other crime require, as with any other case, a connection to service.  As with all claims, delegates should aim to make the determination accurately and quickly and be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities (as per the requirements contained in subsection 72(a)).

In assessing the unclear or apparently contradictory evidence relating to liability, the Delegate's judgements must be based on the civil standard of proof, i.e. 'on the balance of probabilities'. Note that none of the compensation Acts (except MRCA) permit the VEA test of 'reasonable hypothesis' for any category of employment. The 'balance of probabilities' test, which applies in all military workers compensation cases in fact, excludes guesses, conjectures or hypotheses.

Section 53(1) of the SRCA provides that:

53(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

a)as soon as practicable after the employee becomes aware of the injury, or

b)if the employee dies without having become so aware or before it is practicable to serve such a notice – as soon as practicable after the employee's death.

Notice of injuries, etc. relating to the Compensation (Commonwealth Government Employees) Act 1971 was and is regulated by S53 of that Act. The provisions of the 1971 Act and of the SRCA are virtually identical. Delegates should follow procedures which are consistent with those for notices of injury under the 1988 Act.

The form of service current at the time of the injury being relevant to individual cases, Delegates must investigate those circumstances. In most cases, however, the member's service record will state that he or she has operational service or will include sufficient information about his or her service overseas to make the appropriate judgement.

The Act does not give any guidelines to interpret the phrase 'as soon as practicable'. This aspect is a judgement of the Delegate and is to be made with regard to all of the circumstances of the case, including the claimant's state of mind, understanding of the disease or injury, ignorance or mistake with respect to rights and duties, etc.

The form of this provision under the SRCA is:

6(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

...

b) while the employee:

...