Paragraphs 27(c) and 28(1)(c) of the MRCA deems an injury, disease, or death to be a service injury, disease, or death:
- if the injury or death was sustained due to an accident that would not have occurred; or
- the disease would not have been contracted;
but for:
- the person having rendered defence service while a member; or
- changes in the person's environment consequent upon his or her having rendered defence service while a member.
The 'but for' test is a causal test, requiring a connection between the incident giving rise to the injury, disease, or death and circumstances of service. This test should not be applied literally [Schmid v Comcare (2003) FCA 1057] and is a more direct causal test than the 'attributable to' test outlined above [Repatriation Commission v Keenan unreported, 29 September 1989]. There is a need for genuine proximity.
The test appears more restrictive in relation to an injury than for a disease. For an injury it must have resulted from an 'accident'. However, the courts have tended to take a generous view of what is an 'accident', and so it is unlikely that this would greatly restrict the test's application.
The changes in environment referred to in the provision could refer to social and other attributes of the situation in which the member is placed during service. However, the test is not satisfied where service is merely the environment in the which the incident occurred [Holthouse v Repatriation Commission (1982) 1 RPD 287].
Example:In Holthouse v Repatriation Commission (1982) 1 RDP 287 a member claimed a back injury which resulted from moving a pot plant. The member contended that removal to HMAS Nirimba was the reason for the moving of the pot plant and but for his rendering defence service he would not have injured his back. However, the posting to HMAS Nirimba was not a cause of the moving of the pot plant, it simply explains why the pot plant was moved at that particular time. Whether he maintained the pot plant and where he kept the pot plant were all matters of no concern to the ADF. Therefore, the but for test was not satisfied in these circumstances.