Before liability can be accepted for an injury sustained or a disease contracted by a person or the death of a person it must be established that the injury, disease or death is a 'service injury', 'service disease' or 'service death'. This is achieved via one of the heads of liability that apply under the MRCA. These concern the various connections that can be established between an injury, disease, or death and relevant defence service rendered by the person – the service relationship.
The various heads of liability in the MRCA require that 'defence service' be 'rendered' and that the service be temporally or causally related to the claimed injury, disease or death before it can be determined to be a service injury, service disease or service death. A person does not 'render defence service' merely by enlisting [Truchlik v Repatriation Commission (1989) 87 ALR 263].
'Rendering defence service' requires the person to be on duty or be doing something required, authorised, or expected to be done in connection with, or incidental to, the person's duties [Roncevich v Repatriation Commission (2005) HCA 40]. Hence a person can be rendering defence service even when they are not on duty.
Further, even where certain activities are approved or even encouraged within the defence hierarchy, 'there is a point where activities become a purely personal pursuit'. In Spriggins and Repatriation Commission (2007) AATA 1657 a crewmember of HMAS Tobruk was severely injured when he was struck by a vehicle while on shore leave. The AAT found there was no doubt that the member was encouraged by officers and non-commissioned officers to go ashore. During the course of the evening the member had spent his time at various establishments were alcohol was served. The AAT considered that it was not part of the member's Defence Service to get drunk to the extent that he failed to maintain a proper care for his own safety.
For information on injuries, diseases or death resulting from treatment provided by the Commonwealth refer to CLIK 3.2.10. [4]
It is also important to note, the MRCA does not contain any provisions equivalent to sections 6C [5] or 6D [6] of the VEA (which effectively provide 24 hour a day coverage for a person on operational service).
The following examples demonstrate when a person would be 'rendering defence service' even when they are not on duty:
Example 1:Jogging on the weekend would be 'rendering defence service' if this activity was authorised as part of a training program designed by an ADF Physical Training Instructor.
Example 2:Attending a ceremonial dinner would be 'rendering defence service' if the person's Commanding Officer encouraged him or her to attend the dinner.
Example 3:Travelling to a medical board appointment would be 'rendering defence service' if the ADF required the person to undergo the medical assessment.
Paragraphs 27(a) [8] and 28(1)(a) [8] of the MRCA provides that an injury, disease, or death is to be taken to be a service injury, service disease or service death if the injury, disease, or death resulted from an occurrence that happened while the person was a member rendering defence service. While historically the occurrence provision applies only to operational and peacekeeping service under the VEA, under the MRCA it applies to warlike and non-warlike service and, for the first time, to peacetime service.
Paragraphs 27(b) [10] and 28(1)(b) [11] of the MRCA provides that an injury, disease or death is to be taken to be a service injury, service disease or service death if the injury, disease or death arose out of, or was attributable to, any defence service rendered by the person while a member.
In order to establish that an injury, disease, or death arose out of or was attributable to the person's defence service, a causal relationship must be established between the service and the relevant condition. This head of liability does not require service to be an 'immediate', 'direct' or 'proximate' cause [Repatriation Commission v Law (1980) 47 FLR 57 at 68]. Nor is service required to be the 'sole', 'dominant' or 'real' cause. In other words, it is wrong to say that service must be 'the' cause of the injury, disease or death. It merely has to be 'a' cause.
However, when it is said that service must be a cause, it is not enough that service is the circumstance in or on which the cause operates. Service must have caused the relevant circumstance and not merely be the setting in which the circumstance occurred [Repatriation Commission v Tuite (1993) 29 ALD 609]. If the causal factor is something that occurs in everyday life, as well as in a service context, the circumstances of service must have made a special contribution over and above that of the person's everyday life [Repatriation Commission v Bendy (1989) 18 ALD 144].
Paragraphs 27(c) [8] and 28(1)(c) [8] of the MRCA deems an injury, disease, or death to be a service injury, disease, or death:
but for:
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.
Paragraphs 27(e) [8] and 28(1)(f) [8] of the MRCA provides for an injury, disease, or death to be regarded as a service injury, disease, or death if the injury, disease or death resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
Whether a particular journey is covered by this provision depends on the purpose of the journey. It is not sufficient that the person was going to or from a place of duty. If the accident occurred while travelling to a place of duty, the question is whether or not the person was going there to commence duty or merely going there for some other reason or because that was where he or she was residing. Likewise, when considering a journey when travelling away from the person's place of duty, it is necessary to determine whether the person left that place upon ceasing duty.
It is also necessary to identify the start and end points of the particular journey. A journey is not completed until its final destination is reached whether this be a few minutes after commencement or many days such as occurs for example, if a member drives interstate for leave.
Example:In Re Fish and Repatriation Commission (2003) AATA 675, the Tribunal found that Mr Fish had left the base for private business, was returning to his place of residence on base, and that there was a considerable gap in time before he was to commence duties. It also found he was not travelling with the purpose of performing duty. They found he was not on service-related business when he incurred his injuries. Thus his injuries were not defence-caused.
Paragraphs 27(d) [8] and 28(1)(d) [8] of the MRCA provides that an injury, disease, or death is to be taken to be a service injury, service disease or service death if the injury, disease, or death:
was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service; and
was aggravated by any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.
Likewise, section 30 [8] of the MRCA provides that an injury or disease is taken to be a service injury or service disease if the injury or disease:
was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service; and
a sign or symptom of the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.
Note that section 30 [8] (aggravation of signs and symptoms) does not apply to claims for liability for death.
Under the MRCA, like the VEA, an aggravation of an injury or disease is not a separate injury or disease in its own right. Aggravation is excluded from the definition of injury and disease in section 5 [8] of the MRCA. This means that, unlike the SRCA, the aggravation of an injury or disease is not to be regarded as an injury or disease in itself. That is, if a pre-existing injury or disease has been aggravated by or materially contributed to by service, that injury or disease is treated as a 'service injury' or 'service disease'. Likewise, if a pre-existing injury or disease which results in death has been aggravated by or materially contributed to by service, that death is treated as a 'service death'.
If an injury or disease is connected to service on the basis of an aggravation, the entire injury or disease becomes a service injury or service disease. However, section 5 [8] of the MRCA establishes a particular class of service injury or service disease, classified as an 'aggravated injury or disease'. Such injuries or diseases are so classified if they qualify as service injuries or diseases via paragraphs 27(d), subsection 29(2) [8] or section 30 [8].
Unlike the VEA, the MRCA restricts some forms of compensation for aggravated injuries or disease to the impairment resulting from the aggravation rather than impairment from the entire injury or disease (e.g. paragraph 70(2) [8] and section 72 [8] of the MRCA). Some compensation and benefits under the MRCA are provided for aggravated injuries or diseases without regard to the effects of the aggravation (e.g. paragraph 43(2), subsections 61(2) [8] and 62(2)) [8]. In other cases, compensation and benefits are only provided in respect of an aggravated injury or disease while the effects of the aggravation persist (e.g. sections 119 [8] and 275) [8].
The aggravation provisions of the MRCA only apply where the injury or disease which has been aggravated 'was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or ... before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service'. Therefore, in situations in which aggravation is claimed, it must be established that the onset of the injury or disease was not caused by service.
Paragraphs 27(d) and 28(1)(d) of the MRCA provides that an injury, disease, or death is to be taken to be a service injury, service disease or service death if the injury or disease (including an injury or disease from which a person died):
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, 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 material contribution test is relevant to SoPs where there is a factor specifying a minimum accumulation of consumption or exposure over time. The application of the material contribution test to the SoP framework was clarified by the Federal Court in Kattenberg v Repatriation Commission [2002] FCA 412 (‘Kattenberg’).
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 or disease 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 or disease, 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.
Under paragraph 28(1)(e) if a person dies from an injury or disease that has already been determined to be a service injury or disease under the MRCA, there is no need to link the death to service. In such cases, the SOPs do not need to be applied to the claim for the acceptance of liability for service death.
Under section 29 [8] of the MRCA, an injury or disease is to be taken to be a service injury or service disease if:
Paragraph 29(2) applies to both types of aggravation discussed above at 3.2.7 [18].
Under section 29 [8] of the MRCA, a death is taken to be a service death if the person dies as a consequence of treatment paid for wholly or partly by the Commonwealth, including treatment under regulations made under the Defence Act 1903.
It was noted above that the heads of liability (paragraph 27(d), subsection 29(2) [8], and section 30) [8] do not apply to an injury or disease with onset connected to service. However, section 5 [8] further states that 'service injury has the meaning given to it by sections 27 [8], 29 [8] and 30 [8].' A note to these definitions states that:
A reference to a service injury or service disease being sustained includes a reference to an injury or disease being aggravated by defence service (see section 7) [8].
In simple terms, section 7 [8] of the MRCA provides that a service injury sustained or a service disease contracted includes an aggravation of that injury or disease by service.
Situations will arise where:
In situation (a) delegates should first consider if onset of the injury or disease is related to service following the normal procedures. If so, delegates must then decide whether service has further aggravated that injury or disease post onset. The use of a SOP in relation to the claimed aggravation may provide a helpful reference but is not required. If a person has continued to serve post onset of an injury or disease it is at least more likely than not that service has materially contributed to any worsening of the injury or disease, unless there is clear evidence that a non-service related aggravation has occurred.
If onset of the injury or disease cannot be determined to be connected to service, delegates must decide whether the aggravation of the injury or disease is connected to service by following the policy outlined above at 3.2.7 [18].
In situation (b) delegates must decide whether service has further aggravated that injury or disease post onset. Again, the use of a SOP may provide a helpful reference but is not required. If a person has continued to serve post onset of an injury or disease it is at least more likely than not that service has materially contributed to any worsening of the injury or disease, unless there is clear evidence that a non-service related aggravation has occurred.
Example: A member contends that his osteoarthrosis of the right knee was caused by lifting undertaken while rendering defence service and further aggravated by a trauma that occurred while rendering defence service. The delegate determines that disease to be a service disease on the basis of the 'lifting' factor in the SOP and this service disease includes an aggravation by defence service due to the trauma incident.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/18987%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=comment/reply/19017%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=comment/reply/19023%23comment-form
[4] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-3-liability/32-heads-liability/3210-injury-disease-or-death-arising-treatment-provided-commonwealth
[5] clik://LEGIS/VEA/Section 6C
[6] clik://LEGIS/VEA/Section 6D
[7] https://clik.dva.gov.au/user/login?destination=comment/reply/19024%23comment-form
[8] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-mrca
[9] https://clik.dva.gov.au/user/login?destination=comment/reply/19003%23comment-form
[10] clik://LEGIS/MRC-ACTS/MRCA/S27
[11] clik://LEGIS/MRC-ACTS/MRCA/S28
[12] https://clik.dva.gov.au/user/login?destination=comment/reply/19001%23comment-form
[13] https://clik.dva.gov.au/user/login?destination=comment/reply/18999%23comment-form
[14] https://clik.dva.gov.au/user/login?destination=comment/reply/18975%23comment-form
[15] https://clik.dva.gov.au/user/login?destination=comment/reply/19022%23comment-form
[16] https://clik.dva.gov.au/user/login?destination=comment/reply/18977%23comment-form
[17] https://clik.dva.gov.au/user/login?destination=comment/reply/19012%23comment-form
[18] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-3-liability/32-heads-liability/327-aggravation
[19] https://clik.dva.gov.au/user/login?destination=comment/reply/19026%23comment-form