If an injury or disease resulted from a person's serious default or wilful act, paragraph 32(1)(a) [3] of the MRCA provides that liability will not be accepted except if the injury or disease results in serious and permanent impairment as discussed below at 3.6.4 [4].  This exclusion does not apply to claims for the acceptance of liability for death;  nor to cadets aged under 16 years of age.

The reasonable satisfaction standard of proof applies when determining whether a person's injury or disease resulted from that person's serious default or wilful act.

If an injury or disease arose from a serious breach of discipline paragraph 32(1)(b) [3] of the MRCA provides that liability will not be accepted except if the injury or disease results in serious and permanent impairment which is discussed below at 3.6.4 [4].  The exclusion does not apply to claims for the acceptance of liability for death.

The reasonable satisfaction standard of proof is to be used in determining whether a person's injury or disease arose from a serious breach of discipline.

Paragraph 32(1)(c) [3] of the MRCA provides that liability for an injury or disease will not be accepted if the injury or disease was intentionally self-inflicted, while the person was a member, except if the injury or disease results in serious and permanent impairment discussed below at 3.6.4 [4].  The exclusion does not apply to claims for the acceptance of liability for death.

This phrase is conjunctive – the injury must be both self-inflicted by the person and inflicted by their own intentional act.  It is not sufficient for the injury to be inflicted by a grossly negligent act of the person;  this may, however, constitute serious default or wilful act in some circumstances.

The reasonable satisfaction standard of proof is to be used in determining whether a person's injury or disease was intentionally self-inflicted.

subsection 32(1) [3] of MRCA provides that liability must not be accepted for an injury or disease if it resulted from the person's serious default or wilful act, a serious breach of discipline, an occurrence that happened while committing a serious breach of discipline or an intentionally self-inflicted injury or disease except if the injury or disease results in serious and permanent impairment.

Whether an impairment [8] is 'serious [9] and permanent [10]' for the purposes of subsection 32(1) [3] of the MRCA is a matter of fact to be decided in the individual circumstances of each case. Two general observations may, however, be helpful:

• subsection 32(1) [3] is directed to 'impairment' and not to 'incapacity for work'.  Delegates should ensure that the evidence addresses impairment rather than incapacity for work although the impact on the person's occupation may be relevant when considering if the impairment is 'serious';
• the phrase 'serious and permanent impairment' is conjunctive, i.e. there must be both serious and permanent impairment.  Accordingly, the exclusions under subsection 32(1) [3] will continue to apply where the evidence clearly shows that the impairment is expected to be temporary.  Liability may have to be reviewed if the initial prognosis proves to be incorrect.

Section 33 [3] of the MRCA provides that liability for an injury or disease will not be accepted if the injury or disease resulted from:

• reasonable and appropriate counselling in relation to the person's performance as a member; or
• a failure to obtain a promotion, transfer or benefit in relation to the person's service as a member.

Section 34 [3] of the MRCA provides that liability for death, or for an injury sustained or a disease contracted will not be accepted if the person at any time:

• made a wilful and false representation that he or she had not previously suffered from the injury or disease that resulted in death; or
• made a wilful and false representation that he or she had not previously suffered from the claimed injury or disease; and
• the false representation was made in connection with his or her defence service, or proposed defence service.

This does not apply to a cadet under the age of 16 years at the time the wilful and false representation was made.

The Explanatory Memorandum to the MRCA indicates that the following circumstances may constitute a wilful and false representation:

• the denial of the prior existence of an injury or disease;
• a false assertion that an injury or disease existed before service;
• failure to advise the ADF of an injury sustained or a disease contracted while serving;
• a false claim of the existence of that injury or disease.

Under the VEA the exclusions relating to travel apply only for the purpose of specific journey provisions referred to in paragraphs 8(1)(c), 9(1)(c), 70(5)(b) and 70(5A)(b) – that is, travelling to or from duty.  These exclusions do not apply any other journeys that might be service related.  Under the MRCA, however, the exclusions relating to travel apply not only to the specific journey provisions in paragraphs 27(e) [3] and 28(1)(f) [3], but also to any other provision in sections 27 [3], 28 [3] and 30 [3].

These exclusions apply only to peacetime service.  Neither the journey provisions nor the specific journey-related exclusions apply to warlike or non-warlike service under the MRCA. Furthermore, the exclusions relating to travel do not apply to a cadet, who, at the time of the injury, disease, death, aggravation or material contribution was under 18 years or age and under the supervision of a parent of the cadet, or a responsible adult.

Under section 36 [3] of the MRCA liability cannot be accepted for:

• an injury sustained, or a disease contracted, by a person, or the death of a person; or
• an injury or a disease that has been aggravated, or materially contributed to; or
• an injury or disease, a sign or symptom of which has been aggravated, or materially contributed to;

if the injury, disease, death, aggravation or material contribution is related to defence service only because of the person's use of tobacco products.

Where an injury, disease or death is related to defence service only because of the person's use of tobacco products, section 36 [3] of the MRCA provides that liability will not be accepted.

If liability can be found on the basis of another factor which connects the injury, disease or death to defence service, Commission is not prevented from accepting liability.

Unlike some of the other exclusions, there are no exceptions to this exclusion.  That is, even if the person were to be seriously and permanently impaired as a result of his or her condition, the exclusion can still apply.