Voluntary and unreasonable submission
Where a member submitted themself to an abnormal risk of injury, it also must be established that they “voluntarily and unreasonably” submitted themself to that risk.
“Voluntary” is defined in the Concise Oxford Dictionary as:
voluntary 1. done, acting, or able to act of one's own free will; not constrained or compulsory, intentional ...
In the context of s 6(3), it also connotes that the member was aware of the “abnormal risk” and undertook the activity anyway. In Taylor v Stapely (1954), the High Court considered that the employee may not have foreseen the extent of the risk and therefore his submission to it could not have been voluntary. The fact that an employee has put himself or herself in a position of exposure to abnormal risk of injury could not be considered voluntary if the employee could not, or actually did not, foresee the extent of the risk.
This is well illustrated by the decision of the Administrative Appeals Tribunal in Grime and Telstra Corporation Limited (1994) where an employee drove a car to work in the morning with a blood alcohol level of 0.136%, after drinking approximately 16 light beers the night before. The Tribunal found that he was not aware that he was still substantially affected by alcohol, and that therefore it could not be said that he voluntarily submitted to an abnormal risk of injury. The Tribunal considered “that 'voluntarily, for the purpose of s 6(3), requires something more than an act being done without compulsion, and that it does require the free consent of the injured employee, this necessarily encompassing that the employee fully appreciate the risk which is being undertaken”.
It was, however, agreed between the parties that the employee had been guilty of “serious and wilful misconduct” in terms of s 4(13).
“Unreasonable” and “reasonable” are defined in the Concise Oxford Dictionary:
unreasonable 1. going beyond the limits of what is reasonable or equitable. 2. Not guided by or listening to reason.
reasonable 1. having sound judgement; moderate; ready to listen to reason 2. In accordance with reason; not absurd. .
Whether a member was unreasonable in his or her submission to the abnormal risk of injury must be decided on the facts of the particular case. Issues which would need to be considered in that context would be the member's capabilities and knowledge about the activity, precautions taken, etc.
In relation to sporting activities, the nature of the member's ordinary duties, any pre-existing injuries, the use of suitable safety equipment (eg. gym mats) and the availability of appropriate supervision and training could be relevant factors.
If a member's ADF duties include exposure to activities which bear an inherent risk (eg. diving or parachuting), submission to that risk would always be considered “reasonable” unless the member was in breach of discipline in undertaking the activity.