Causal relationship of injury or disease to service

For a claim in respect of a death, disease [3] or injury [3] to be accepted, the death, disease or injury needs to be causally related to the veteran's or member's VEA [3] service. Service does not have to be the only cause however, provided that the person's service contributed to a material degree.    

Service contributed to or aggravated a pre-existing condition

A pre-existing injury or disease may be accepted as defence-caused on the grounds that defence service or peacekeeping service [3] materially contributed to, or aggravated the disease or injury. The injury or disease must be made worse permanently not just temporarily. It is likely that eligible service has aggravated the condition if:

• the member sustains further injury during eligible service such that surgical intervention is required, and/or
• the person is discharged medically unfit for further service.      More ? [11]

Occurrences of injury, disease or death that may be covered under the VEA

The VEA provides for compensation for injury, disease or death if it is linked to the veteran or member's service. These provisions also cover, in certain situations, injury, disease or death that occurs due to:

• participation in sport,      More ? [12]
• travelling to and from duty,      More ? [13]
• domestic activities or incidents in live-in accommodation,      More ? [14]
• medical treatment,      More ? [15]
• attendance at social occasions.      More ? [16]

Serious default, breach of discipline or wilful act

The Commonwealth is not liable in respect of the death, injury [3] or disease [3] where it:

• resulted from the member's serious default or wilful act during or after eligible defence service, or
• arose from a serious breach of discipline committed by the member, or while the member was committing a serious breach of discipline.      More ? [17]

Service must cause or contribute to injury or disease

For a claim in respect of a death, disease [3] or injury [3] 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 [3] 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 [3] and members who have rendered peacekeeping service [3] can have a claim accepted if the condition claimed resulted from an occurrence [3] 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.     

'But for' provisions

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 [3]), 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.

Pre existing injury or disease may be accepted as defence-caused

A pre-existing injury [3] or disease [3] may be accepted as defence-caused on the grounds that defence service or peacekeeping service [3] materially contributed to, or aggravated the disease or injury.

Meaning of aggravated

For a disease or injury to be accepted as having been aggravated, the condition needs to have been made permanently worse not just become worse temporarily. Some injuries and diseases have recurrent episodes. The fact that one of these episodes occurs during a period of eligible service does not necessarily mean that the condition is worse than it otherwise would have been. It is likely that eligible service has aggravated the condition if the person:

• sustains further injury during eligible service such that surgical intervention is required, and/or
• is discharged medically unfit for further service.

Service requirements for serving members

A member needs to have had at least six months defence service for an injury or disease to be accepted as defence-caused on the grounds of material contribution or aggravation by defence service or peacekeeping service [3]. However, if the member has rendered hazardous service [3], the six months minimum period of defence service or peacekeeping service [3] does not apply.    

Service requirements for veterans

For veterans who did not render operational service [3], the eligible war service [3] which contributed to the injury or disease or which aggravated the injury or the disease needs to have been for a period of six months or longer. If a veteran has rendered operational service, the six months minimum period of eligible war service does not apply.    

Members' participation in sport encouraged

It is the policy of the Department of Defence as outlined in Defence Instructions (General) PERS 14-2 25 September 1983 that the active participation by Defence Force personnel in sport is to be encouraged.

As a result most units field teams in local competitions and there are also inter-unit matches and inter-service competitions in a variety of sports. Injuries [3] resulting from such inter-unit or inter-service competitions are usually considered to be defence-caused as they are related to the member's duties. Where it is not possible for the unit to provide sufficient sporting opportunities for its members, the members may participate in civilian sport and be covered for compensation. All such activity needs formal approval from the commanding officer.

Example – sporting injury accepted

Injury during solitary practice with a view to being selected for the Navy's ski team has been accepted by the AAT [3] as being defence-caused.

Sporting injuries during operational service

Sporting injuries during World War 2 would normally be related to the veteran's duty unless the veteran did not render operational service [3] and the injury occurred while they were on leave. Sporting injuries occurring during subsequent periods of operational service would be covered by the 'occurrence' provisions even if they were not related to the veteran's duty.     

Authorisation for participation in sport required for compensation

For the purposes of compensation, written authorisation by a Commanding Officer (or officers delegated by them for responsibility for sport) is required if a member is to be considered to be participating in a sporting activity in the course of their employment. The distinction between 'permission' and 'authorisation' is that member have:

• 'permission' to undertake sporting/recreational activities for which no 'course of employment' authorisation can be given.
• authorisation to train and compete in sport and are expected to participate in accordance with that authorisation.

Situations where members are covered for compensation

The policy on injuries occurring during sport has been interpreted by the Department of Defence to mean that in general a member will normally be covered for compensation if the member:

• participates in a civilian amateur sporting team on a weekend,
• seeks authorisation prior to the game to play with that team in accordance with the policy, and
• is unable to play in a Service team in that particular sport in a civilian weekend competition, as no Service team is available.

Injury accepted if travelling to or from duty

An injury [3], disease [3] or death may be accepted as defence-caused if it resulted from an accident that occurred while the member was travelling to a place for the purpose of performing duty or from a place upon having ceased to perform duty.

What does a journey involve?

The journey may be a short trip to or from the member's home or living accommodation or may extend over days depending on the purpose of the journey. The journey commences from the time a person leaves the building in which duty is performed or the time a person leaves their residence. This means that accidents in a person's yard may be covered if the person has taken the first steps of the journey. The journey is not completed until its final destination is reached whether this be a few minutes after commencement or many days such as occurs when service personnel drive interstate for leave.

Establishing whether the journey was for the purpose of duty

When establishing whether a journey was for the purpose of duty, the factors to be considered are:

• was the journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty,
• had the member delayed commencing the journey for a considerable period after ceasing to perform duty,
• was the nature of the risk of sustaining injury or contracting a disease substantially changed or the nature of the risk substantially increased by the delay,
• was the journey by a route that was reasonably direct,
• was the nature of the risk of sustaining injury or contracting a disease substantially changed or the nature of the risk substantially increased by that route,
• was there a substantial interruption in the journey, and
• was the nature of the risk of sustaining injury or contracting a disease substantially changed or the nature of the risk substantially increased by that interruption.

Example – travelling after recreation

Travelling back to barracks accommodation on a Friday night after going out for recreation was not considered to be travelling 'to a place for the purpose of performing duty' in the case of Hopper (AAT [3] 27 January 1988), as the member was not required on duty until the Monday morning.

Example – delaying journey

Delaying the start of a journey until the Saturday morning and then detouring by a route that added three hours to the journey was not considered to have substantially altered the risk in the case of Alcock (AAT [3] 30 June 1992). But staying at Eildon for many hours so that the rest of the journey occurred after dark was considered to have altered the risk.

Journey interrupted by domestic activity

If the journey is interrupted by a domestic activity and the accident occurs during that activity, the nature of the risk has been altered.     

Example - journey interrupted by domestic activity

A member travels to work by car. They started to drive their car down the drive and then noted that he had left the wheelbarrow full of soil partly across the drive. He got out of the car to move the wheelbarrow and injured his back. In a similar case the Tribunal found that the injury was not related to his defence service as he had interrupted his journey to carry out a domestic task.

Injuries occurring in live-in accommodation

In a number of instances, defence personnel are required to live in accommodation provided on the base or in another defence establishment. Injuries [3] occurring in this 'live-in' accommodation may sometimes be accepted as defence-caused depending on the circumstances of the case. Decisions made by the VRB [3] and AAT [3] in respect of injuries occurring in such circumstances vary so it is not possible to follow such decisions in all cases. The issue to be considered is whether the injury is the result of domestic activities or activities related to the person's service.

Example – domestic activity accepted

Members may fall in bathrooms and injure themselves in Defence provided accommodation. This would be regarded as a domestic activity. However, if there was something about the bathroom that was significantly different to a private bathroom or the bathroom was in a poor state of repair, it may be possible to accept the injury as defence-caused under the 'but for' provisions.    

Example - domestic activity not accepted

The Federal Court of Australia in the case of Holthouse (24 June 1982) has been referred to in a number of decisions when determining whether or not an injury or disease resulted from activities within the sphere of a member's personal life. In that case, a naval officer was posted to be the Commanding Officer of a naval unit and was required to live in the accommodation provided. The member decided to let their house while living in that accommodation. The member had a large potted plant which they kept under cover but they decided to move it out into the open in case the tenants did not remember to water it. The member injured their back when moving the plant. It was considered that their decision to move the plant was a domestic decision and had nothing to do with their naval service.

Medical treatment provided during service

During a person's service, medical treatment is provided for all injuries [3] and illnesses at the expense of the Defence Department whether or not such injury or illness is related to service. The treatment that is covered by these provisions is related to conditions that:

• affect the member's efficiency, or
• make the member a danger to others.

Necessary treatment

In the case of Brown, (AAT [3] 1 August 1989), the Tribunal quoted the former Defence Regulation 435 which stated: 'Any member may be required to undergo such medical treatment as is deemed by a medical officer, and such dental treatment as is deemed by a dental officer, to be necessary to cure, remove, prevent or to reduce the likelihood of any disease or infirmity which in the opinion of the medical officer or the dental officer affects or is likely to affect the efficiency of the member in the performance of their duties, or to endanger the health of any other members'.

Reference was also made to Australian Military Regulation 203(1)(xxxi) in which wilful misconduct or disobeying orders, whether in hospital or otherwise, that results in aggravating the disease or infirmity, or delaying the cure is listed as an offence.

Injury or disease during necessary treatment is defence-caused

If a member is undergoing necessary treatment and injury [3], disease [3] or death results, this would be defence-caused as the member was required to undergo such treatment. In some circumstances, a member could not be charged for failing to undergo treatment, if it does not affect the member's duty. In such cases, it is a domestic matter and injury, disease or death resulting from treatment is not defence-caused.

Example - treatment not necessary and not defence-caused

A female member becomes pregnant and it is suggested that she have an abortion. As the result of the abortion, she is rendered sterile. Pregnancy is not a disease or an injury so it does not need to be 'cured'. The member's efficiency would have been impaired at times during her pregnancy but it would not have been permanently affected. There is provision for members of the Defence Force to take maternity leave so it is recognised that pregnancies occur. As there are specific laws governing when an abortion can take place and as a number of people have moral objections to abortions being carried out, the member could not have been directed to have an abortion. The effects of the abortion would not be defence-caused.

Injury during social occasion may be defence-caused

Because of the need to create 'esprit de corps' in the services, it frequently happens that members are expected to attend occasions such as farewells and dining-in nights after the normal hours of duty. Accidents occurring at or on the way home from such occasions have been accepted as defence-caused by the AAT [3] where it is clearly indicated that attendance at the function was a normal part of service life and the members did not increase the risk of being injured. Becoming intoxicated does increase the risk.

Example - injury not accepted as defence caused

A unit held a farewell gathering at the Sergeants Mess for one of the members who was leaving the unit. The main activities ceased about 8.00pm, but some members stayed on to play billiards. They continued to drink alcohol while they were playing. After leaving the Mess at midnight, the member was involved in an accident. The member was under the influence of alcohol. The injury [3] would not be defence-caused as the attendance at the mess ceased to be related to the member's duty at 8.00pm. It was a personal choice of the member to stay on at the mess and the member increased the risk of an injury by staying at the Mess and continuing to drink.

Situation where the Commonwealth is not liable to compensate

The Commonwealth is not liable in respect of the death, injury [3] or disease [3] where it:

• resulted from the member's serious default or wilful act during eligible defence service,     VEA ? [79]
• resulted from the member's serious default or wilful act after eligible defence service,      VEA ? [80]
• arose from a serious breach of discipline committed by the member, or      VEA ? [81]
• arose from an occurrence that happened while the member was committing a serious breach of discipline.      VEA ? [82]

What is regarded as serious or wilful will depend on the circumstances of the case.

Meaning of wilful act

Self-inflicted injuries would normally be regarded as resulting from 'wilful acts' and would not be covered. However, if the person suffers from a defence-caused psychiatric disorder (whether formally determined or not) and that person kills or injures himself or is killed as the result of being under the influence of alcohol, the death or injury would be defence-caused as the person is not capable of a 'wilful' act. Skylarking which results in significant injury would probably be considered to be a 'wilful act' but again, this would depend on the circumstances of the case. If such skylarking has taken place previously and the military authorities have made no attempt to end the practice, the fact that injury results on a specific occasion would not be enough to turn it into a 'wilful act'. The test would therefore be its relationship to the person's duties. An unwilling person who is injured by another members participation in a wilful act, would be covered.

Meaning of serious default or breach of discipline

Simple cases of being absent without leave for short periods or other infringements of discipline that do not result in significant penalties such as imprisonment or discharge would probably not meet the criterion of 'serious'. However, if the person is absent without leave for more that 21 days, that period is not 'effective full-time service' so anything that happens in that time is not covered by the VEA. Actions resulting in civil charges would normally be classed as 'serious'.

Example - serious

In the cases of Nelson, (AAT [3] 10 May 1988) and Lester, (AAT 22 March 1992), the AAT found that breaches of discipline which resulted in imprisonment were 'serious' and debarred the veterans from benefits under the Act.

Example – not serious

In the case of McGrath, (AAT 13 November 1989), the AAT did not consider that taking a jeep without permission on more than one occasion during the week after the Japanese surrender to go and get additional supplies of alcohol was a 'serious default'. This was in view of the lack of discipline that had prevailed in the camp and the amount of alcohol that had been consumed in the camp after receiving the news of the surrender.

However, injuries resulting from the illegal use of vehicles (either military or civilian) in peacetime are not covered as the member's injury would not be causally related to duty.

War-time example - wilful

In a war-time case, the concealing of a physical defect in order that a person could enlist is not considered to be a 'wilful act' in view of the person's desire to serve their country.