Section 6(1)(a) of the SRCA states:
6(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment
The Delegate must therefore establish whether the act of violence would not have occurred but for the client's employment or the performance of duties or functions of employment.
Even if an act of violence does not fall within S6(1)(a), an injury sustained from an act of violence may nevertheless be compensable under S6(1)(b) or more generally if it arose out of, or in the course of, the client's employment. This is because S6 (1)(a) is essentially a restatement of settled law in relation to “arising out of employment”. Therefore the act of violence may thus result from the nature of the member's employment or from the performance of the work duties or functions.
An 'act of violence' does not include just any sort of violent occurrence, i.e. a vehicle crash or an accidental explosion of a gas main. In the context of S6(1)(a), its meaning is confined to a deliberate act of a violent nature, i.e. primarily an assault.
1.What constitutes an 'act of violence' for the purposes of S6(1)(a) is well illustrated by the decision of the Tribunal in Mulligan and Comcare (1995). The Tribunal held that a motor vehicle accident was not an 'act of violence', commenting:
It can not be said that any physical accident can be properly described as an act of violence. What is required is something in the nature of an assault. The fact that the word 'act' is used indicates the requirement of volition, and an element of deliberateness.
2.An assault on an MP in a revenge attack by a disgruntled soldier would clearly be an 'act of violence'. Clearly, the MP would have a claim. However caution should be exercised should a claim be lodged by the disgruntled employee for any injuries inflicted by the retaliating MP!
Where an act of violence or abuse is involved, there must be a clear link between the medical condition suffered and the act of violenceor abuse, and furthermore, a clear link between the act of violence or abuse and the employment.
However, S6(1)(a) does NOT require a temporal link between the employment and the act of violence or abuse. Accordingly, a corporal or sergeant etc. on leave who was assaulted by a private soldier as a 'pay back' for perceived mistreatment would be covered by S6(1)(a) even though he or she was not in the course of employment at the time of the assault.
In Kennedy v Telstra Corporation Limited (1995), the applicant was assaulted at night while returning to the hotel where he was staying in the course of his employment. He contended that he would not have been injured but for his employment. The Federal Court rejected this proposition, discussing the required causal link in the following terms:
I do not think that the requirement of this provision has been met in the present circumstances. On a common sense and practical application of the 'but for' test, there is no causal nexus between the employment or the performance by the employee of the duties or functions of his employment and the assault. The assault arose from the confrontation of two groups late at night which was not related in any way to the performance by the applicant of the duties or functions in his employment.
However, liability was accepted on another basis because he was in the course of employment at the time of the assault.
Claims related to sexual and physical abuse
For policy on claims relating to sexual and physical abuse, see 3.4.7 Claims related to sexual and physical abuse [7].
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20082%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20429%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20472%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/20230%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=node/20392%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20335%23comment-form
[7] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-3-liability/34-investigating-claim/347-claims-related-sexual-and-physical-abuse