Section 14(3) of the SRCA provides:
14(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Note that S4(13) deems a client to have engaged in serious and wilful misconduct if he or she is under the influence of alcohol or a drug (other than a prescribed drug used in accordance with the prescription). This issue is separately discussed in the commentary on 'Under the influence of alcohol or a drug'.
The exclusion of liability under S14(3) does not apply if:
For this provision to apply, the misconduct of the member must:
In assessing whether misconduct is 'serious', consideration must be given to the level of risk involved, the potential seriousness of the consequences and the deliberate intention of the member to engage in the conduct.
Note: It is the misconduct which must be 'serious', not the injury which has resulted (Comcare v Calipari (2001)).
Misconduct which arises from negligence, carelessness or inattentiveness, or from a failure to appreciate the level of risk involved, could rarely be described as 'wilful'.
1.Adams and Australian Postal Corporation (1993): the Tribunal held that, in the circumstances, eavesdropping was not serious and wilful misconduct. The Tribunal held that, at least in cases relating to physical injuries, the conduct must be such as to give rise to an immediate risk of injury. It must be a deliberate act, and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk involved.
2.Vines and Comcare (1995): the employee was injured while playing soccer in the change room prior to bundying off from work. The employer had prohibited such activities by notices on several occasions, but not within the previous six to twelve months, and no disciplinary action had ever been taken apart from confiscating several soccer balls. In all the circumstances, the Tribunal found that the employer's attitude was 'equivalent to tacit approval' and that the employee was not precluded from compensation by S1 — 4(3).
For an injury to be 'caused' by serious and wilful misconduct, there must be more than an incidental or minor causal contribution. The misconduct must be the sole or principal cause of the injury.
1.A member rode an unregistered motorcycle without a licence. She was struck by a car reversing from a driveway. Serious and wilful misconduct is able to be proven in this case, but as the injury was not caused by that misconduct, rather by the action of the car reversing into the motorcycle, compensation would be payable.
Section 27(3) of the 1971 Act states:
If an injury to an employee is not intentionally self inflicted but is attributable to his serious and wilful misconduct, the Commonwealth is not liable...to pay compensation in respect of that injury unless the injury results in the death or serious and permanent disablement of the employee
This provision of the 1971 Act differs slightly from S14(3) of the SRCA in that S27(3) used the words 'attributable to' where the SRCA uses 'caused by' and it refers to 'disablement' rather than 'impairment'. However, for all practical purposes the provisions are the same.
Section 9(3) of the 1930 Act states:
If it is proved that the injury to any employee is attributable to his serious and wilful misconduct, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed.
Essentially this is the same provision that applies under the 1971 Act and the SRCA.
In summary, the discussions in this Handbook relating to exclusions for 'serious and wilful misconduct' under the SRCA also apply to similar occurrences under the 1971 and 1930 Acts. All cases should be treated the same, except in the case where the misconduct relates to alcohol consumption. In this respect, see the notes below.
Section 4(13) of the SRCA states:
4(13) For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) shall be taken to be guilty of serious and wilful misconduct.
Thus S4(13) deems a client to have engaged in serious and wilful misconduct if he or she is under the influence of alcohol or a drug (other than a prescribed drug used in accordance with the prescription).
If a person sustains an injury because of serious and wilful misconduct, S14(3) provides that compensation is not payable unless the injury results in death or serious and permanent impairment.
Whether a person is under the influence of alcohol or a drug is a question of fact which must be determined by consideration of all the available evidence. The mere fact that the member has imbibed alcohol or taken a drug is not sufficient to bring S4(13) into operation. There must be evidence that they were 'under the influence' of that substance.
The Concise Oxford Dictionary includes the following relevant definition:
under the influence colloq. affected by alcoholic drink.
Whether a person is 'under the influence' may, to some extent, be affected by the nature of the activity being undertaken. For example, a member's capacity to undertake a complex task, requiring a high level of precision and manual dexterity, may be affected by a much lesser level of alcohol consumption than would usually affect their normal daily activities.
Note, however, that there must be an effect or influence. It is not appropriate to invoke S4(13) simply because a member has breached an employment rule (e.g. no alcohol before undertaking flying duties). This is a disciplinary matter and would not have compensation implications unless the member is 'under the influence'.
The Safety, Rehabilitation and Compensation Commission has made a policy decision that, where an actual blood alcohol level reading is available, (most likely in motor vehicle accident claims), the level of 0.05 (0.05g of alcohol for each 100ml of blood) is a strong indicator of being 'under the influence ' and should be applied as the standard for determining whether the exclusion in S4(13) applies.
For an injury to be 'caused' by the client being under the influence of alcohol or a drug, there must be more than an incidental or minor causal contribution. The intoxication must be the sole or principal cause of the injury.
A member who was extremely intoxicated was injured while travelling on duty as a passenger in a motor vehicle. He is deemed to be guilty of serious and wilful misconduct by application of S4(13), however as this misconduct did not cause his injury compensation would still be payable.
In Re Grime and Telstra Corporation Limited (1994) an employee had an accident while driving 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, but it accepted without argument that he was still under the influence of alcohol and that this caused the accident. (i.e. the Tribunal found that because of the wording of 4(13) he was guilty of serious and wilful misconduct even though unaware of his drunken state, and was thereby excluded from compensation because that state was a factor in the accident.)
Neither the 1971 Act nor the 1930 Act contain a specific provision formally deeming accidents involving the influence of alcohol or a drug to be 'serious and wilful misconduct' in the terms of S4(13) of the SRCA.
However, it is expected that Delegates, faced with a pre-88 claim in which the causative element included the influence of alcohol, would nevertheless deny the claim except in extraordinary circumstances. In most cases, the grounds for such a dismissal would be 'serious and wilful misconduct'.
Note that Delegates have the discretion under all three Acts to form their own judgement as to what acts and circumstances constitute 'serious and wilful misconduct'. Although only the SRCA actively compels a Delegate to consider inebriation to be 'serious and wilful misconduct', Delegates would be justified in making a similar finding (on their own account) in relation to a pre-1988 injury.
In cases involving the use of illegal drugs such as marijuana, cocaine, amphetamines and heroin, Delegates should simply observe that use of those drugs (other than by means of a doctor's prescription) is illegal under Australian law. Use of these drugs without a lawful prescription, whether for alleged 'self medication' or otherwise, should always constitute 'serious and wilful misconduct'.
The exclusion of an injury from compensation because it arose from 'serious and wilful misconduct' is not absolute but has limits.
Section 14(3) of the SRCA provides:
14(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment
Section 27(3) of the 1971 Act and S9(3) of the 1930 Act make a virtually identical concession, except that in both cases, the degree of injury is expressed as:
...death or serious and permanent disablement of the employee...
The issue of whether the client has suffered death because of the misconduct, is usually a non-controversial issue, to be settled on the facts. However, whether an injury resulting from misconduct has resulted in serious and permanent impairment/disablement is a matter for determination.
The presence of a permanent impairment is a factual matter to be resolved on the basis of an expert medical opinion (though the issue of permanence may only resolve quite a long time after the accident, i.e. after treatment and healing have run their course).
Whether an impairment is "serious and permanent" for the purposes of s 14(3) of the SRC Act is a matter of fact and degree to be decided in the individual circumstances of each case. Two general observations may, however, be helpful:
S14(3) is directed to "impairment" and not to "incapacity for work". Assessors should ensure that the medical evidence addresses impairment and not incapacity for work;
the phrase "serious and permanent impairment" is conjunctive, ie. there must be both serious and permanent impairment. Accordingly, the exclusion under s 14(3) will continue to apply where the medical evidence clearly states that the impairment is expected to be temporary. Liability may have to be reviewed if the initial prognosis proves to be incorrect.
In order to determine whether an impairment is "serious", the assessor should undertake "a comparison with, and an assessment relative to, other possible impairments or losses of the body function in question. Elements of fact, degree and value judgement are involved" in reaching the appropriate decision: Fleming v Hutchinson (1991).
A serious impairment is one which is "very considerable when compared with the range of possible impairments, and more than marked or significant": Re Grime and Telstra Corporation Limited (1994). The Administrative Appeals Tribunal considered that a residual movement restriction of approximately 50% to the employee's right ankle - a whole person impairment of 10 - 15% - was not a serious impairment within the meaning of s 14(3).
While it is not appropriate to make this judgment solely on the basis of an impairment rating under the Approved Guide, the following general guidelines may be helpful:
an impairment rating of 40% or more in accordance with the Approved Guide would usually be "serious" for the purposes of s 14(3);
ratings in the range 20% - 40% may be "serious" in appropriate cases.
As an example, an impairment of 20% under Table 9.6 ("loss of more than half normal range of movement" may be regarded as "serious" for a manual labourer whose work requires lifting, bending, digging, etc, while it may not be "serious" for a person in a clerical position.
It is RCG policy that claims for alcoholism or other diseases arising out of the habitual consumption of alcohol or illicit drugs should not be entertained.
Habitual consumption of alcohol is not and never has been an ADF employment related factor. Excessive consumption of alcohol has no nexus with ADF employment. It is not something that the employer required the employee to do, nor is it reasonably incidental to such employment.
Furthermore, the ADF prohibits and penalises the consumption of alcohol in the workplace, actively discourages over-indulgence in alcohol and those programs of discouragement are of long standing.
However, where a person has a diagnosable addiction to alcohol or illicit drugs as a result of a service related incident (such as witnessing a traumatic event on service) or other service caused factor (including for example an accepted condition such as PTSD), that condition is a disease and provided the evidence meets the appropriate standard of proof may be accepted so long as it can be shown that the alcohol or drug consumption was not of the client's own free will. This would be a medical question. This would usually be determined as a sequela.
Addiction to alcohol or drugs as a condition may only be accepted if there is a definite causal link to service, for example, witnessing a traumatic event and there is evidence to show that the claimant did not exercise free will in the consumption of alcohol or illicit drug to the point of addiction. Addiction to alcohol or drugs purely as a result of consumption of alcohol or drugs during service alone will never result in a claim being accepted.
Where claims for alcoholism and related diseases are presented to Delegates, clients typically assert that a nexus with employment exists in that:
However, these assertions are not to be accepted as demonstrating any nexus between disease and employment.
Peer pressure, if present, is a social interaction between the client and his/her social group – i.e. a private matter – and does not involve the employer or the employment. In any case, and despite 'peer pressure' (if present) it is the client's free decision as to whether he/she was to drink or not, i.e. an act of free will.
The ADF strongly denies that it has ever encouraged the consumption of alcohol, (let alone the over-consumption) either by means of pricing policy in messes or otherwise.
Consumption of alcohol whilst on duty is prohibited and there are penalties where a transgression is detected. Note that the reasoning in the decision in Williams v Comcare (2003), which relates to the sale of tobacco in ADF canteens, can also be applied to the sale of alcohol. The Tribunal found that the employer's making a product available for sale did not make the actual purchase by the employee anything other than the employee's own choice. The act of consumption can not arise out of or in the course of employment.
Despite assertions of 'stress' or 'pain' – and even if these influences can actually be shown to be present – the decision to resort to alcohol should not be regarded as reasonable or inevitable or endorsed by the employer. RCG does not accept that it is reasonable to expect the Commonwealth to pay for the effects of such alleged 'self medication' when conventional forms of medical treatment were readily available to the employee.
The decision to drink alcohol is generally the client's own. However in some cases, where alcohol consumption has resulted in a disease state diagnosable as an addiction, the decision to drink may not be the client's own. As highlighted above, if for example a member witnesses a traumatic event and they turn to alcohol or drugs as a coping mechanism, depending on the evidence and medical opinion on the case, it may be determined that the claimant had no control over their resulting escalated use and addiction. In this instance the addiction may be accepted as a disease, provided there is a material or significant contribution of service. Further an addiction to alcohol/drug may arise say due to a psychological condition, for example PTSD. Again this depends on the medical evidence as to whether the drug/alcohol use was actually of the claimant's own choice or not. If the consumption of alcohol or drugs is the claimant's own choice then it is not as a result of service.
If the accepted medical condition (or a service related incident) makes it impossible for the claimant to exercise free will in the use or abstinence of alcohol, then there can be considered to be a reasonable connection from the claimant's service and/or primarily accepted condition to the condition(s).
Generally though, the decision to drink alcohol to excess i.e. regularly to the point of inebriation where it is the claimant's own free will, can be said to invoke the exclusion under S14(3) i.e. 'serious and wilful misconduct'.
Any injury or disease suffered by a member or ex-member of the ADF as a result of that member's consumption of alcohol or illicit drugs should in most cases be considered to be a result of a personal choice by the member. It follows that alcohol consumption can not be considered to have been reasonably required, expected or authorised by the ADF in order for the member to carry out his/her duties. Consequently, those claims generally are not to be accepted for compensation purposes. There are only two exceptions to this general policy:
Until 2005, smoking-related claims for compensation were denied on the basis that smoking (and associated disease or illness) was not reasonably incidental to a claimant's service in the ADF. Until the change, it was policy that the decision to smoke or not to smoke was ultimately a matter of personal choice for the member.
However, a change to the existing policy regarding smoking and its effects was necessary in view of the majority decision of the Full Federal Court in the matter of the Military Rehabilitation and Compensation Commission v Wall [25]([2005] FCAFC 127 (8 July 2005).
A further policy review, conducted in 2017, has led to a policy change in the ways in which smoking-related claims are assessed.
In order to consider liability for smoking related claims it is necessary to consider three important factors:
1. Was the applicant's smoking habit related to service?
Any smoking history of the member prior to and subsequent to commencing military service is an important consideration, as is the frequency of smoking.
The fact that a member smoked prior to service does not in itself preclude a potential liability for a smoking-related condition e.g. a condition or aggravation of a condition resaulting from a service-related increase in smoking.
To assist in assessing a claim, delegates may refer to CLIK 26.7.2 Investigating and determining claims [27].
2. What was the degree to which the applicant's military service impacted on their smoking habit?
In circumstances where the member was a regular smoker prior to commencing military service, close scrutiny should be given to the question of whether the member's military service had a significant effect on the member's smoking, such that the smoking habit can be said to have been caused or contributed to by that service.
Generally, the member's military service must have had a significant effect on the habituation of the member's smoking so that the member continued to smoke during and after service or for a sufficient number of years (irresepective of whether this smoking continued after service) for it to be considered that the service-related smoking habit had the required connection to the claimed injury or disease.
3. If the applicant's smoking habit was related to their service, did that service-related smoking habit cause or contribute to the disease or injury that is the subject of the claim?
There must be medical evidence which establishes the requisite connection between smoking and the disease or injury that is the subject of the claim, having regard to the required standard of proof and contribution under the DRCA or preceding legislation.
In assessing this connection, consideration may be given to the intensity and duration of smoking and, where smoking had ceased, the proximity of the smoking habit to the onset of the disease or injury.
In those cases where smoking is identified as a causal factor by the claimant when submitting their claim, or if medical evidence suggests that a history of smoking contributed to the development of the claimed condition, Delegates should request that claimants complete the “Cigarette Smoking Questionnaire” found at CLIK 26.7.5 [29] which has been approved for use specifically in the assessment of DRCA claims. The questionnaire is used to assist in determining the circumstances during which the claimant commenced smoking and whether the habitual nature of the smoking occurred during a period of ADF employment. It will also indicate whether the claimant ceased smoking upon completion of their service.
The questionnaire is slightly different to the one currently used to determine claims under the VEA, insofar as we are not seeking to obtain information about the number of cigarettes or quantity of other tobacco products regularly or previously smoked by the claimant.
Generally, the date of injury for disease claims is as per the provisions of subsection 7(4) of the DRCA. In the case of smoking related claims this will generally be the date when the disease manifested itself.
In addition, the DRCA requires military employment to have contributed in a material degree (where the date of injury is prior to 13 April 2007) or to a significant degree (where the date of injury is on or after 13 April 2007) to the disease.
Considerations where a smoking-related condition manifests during previous Acts
The superseded Acts are:
The Compensation (Commonwealth Government Employees) Act 1971 (i.e. the '1971 Act') which operated from 1 September 1971 to the commencement of the SRCA on 1 December 1988.
The Commonwealth Employees Compensation Act 1930 (i.e. the '1930 Act') which only applied to ADF employees after an amendment commencing 3 January 1949 and it ceased 1 September 1971.
Commonwealth Employees Compensation Act 1930 (the '1930 Act')
In cases where a disease manifested itself during the currency of the 1930 Act (that is prior to 1 September 1971) Section 10 of the 1930 Act required that a disease be “due to the nature of the employee’s employment” before there could be liability to pay compensation for that disease (see CLIK Ch 21.3.4 [30]). In effect, this meant that the disease had to be an occupational hazard of service in the ADF. Diseases due to the effects of smoking would not necessarily qualify as an “occupational disease” for ADF members.
Compensation (Commonwealth Government Employees) Act 1971 (the '1971 Act')
The 1971 Act requires military employment to have contributed to the disease (see CLIK Ch 21.3.3 [31])
Section 36 of the MRCA precludes the admission of liability under that Act for smoking-related diseases, in relation to periods of service on and after 1 July 2004. This does not preclude smoking-related conditions being accepted under the DRCA with a date of injury on or after 1 July 2004.
If the disease caused by the smoking has been contributed to in a material degree by employment occurring on or after 1 July 04 or before and on or after that date, SRCA does not apply and the MRCA exclusion will apply.
From September 2017, smoking policy has been updated. The changes are as follows:
Previous Policy | Revised Policy |
The member must have commenced smoking as a result of and during the time of their military service. | Any smoking history of the member both prior to and subsequent to commencing military service is an important consideration, as is the frequency of smoking. In circumstances where the member was a regular smoker prior to commencing military service, scrutiny should be given to the question of why it is claimed that the member’s service had any impact on their smoking. The fact a member smoked prior to service does not in itself preclude a potential liability for a smoking related condition eg. a condition or aggravation of a condition resulting from a service related increase in smoking. |
The member must have become so habituated to smoking during their service that the member continued to smoke during and after service | The member’s military service must have had a significant effect on the habituation of the member’s smoking so that the member continued to smoke during and after service or for a sufficient number of years (irrespective of whether this smoking continued after service) for it to be considered that the service related smoking habit had the required connection to the claimed injury or disease. |
The smoking was the direct cause of the illness that has been claimed. | There must be medical evidence which establishes the requisite connection between the claimed condition and smoking. |
Any claims where the member commenced smoking after 1973 should be denied. | Not included. A member’s commencement of smoking after 1973 ought not be a basis for rejecting liability. |
Liability for DRCA smoking-related diseases can only be considered where:
the applicant’s smoking habit can be related to service (caused by or contributed to by service); and
that service-related smoking caused or contributed to the disease or injury that is the subject of the claim; and
a disease manifested itself after 1 September 1971; and
the relevant period of service is between 3 January 1949 and 30 June 2004; and
the member did not continue to serve (and smoke while serving) on and after 1 July 2004.
Cigarette Smoking Questionnaire - SRCA
This form is in connection with your claim for pension and medical treatment and the information you supply will assist in deciding eligibility for benefits under the Safety, Rehabilitation and Compensation Act 1988 (SRCA). In the event of an appeal against a decision, this information may be provided to the Administrative Appeals Tribunal or to the Federal Court.
Claimant's Details
Surname |
Given Name(s) |
SRCA File Number |
||||||
Report Details
1.Have you ever smoked cigarettes on a regular basis?
?No - Please sign the form and return it to the Department
?Yes
2.When did you first start smoking cigarettes on a regular basis? (You may not know exactly when you started to smoke cigarettes regularly, but please be as precise as possible. Please state the day, month and year if known).
/ / |
3.Why did you start to smoke cigarettes on a regular basis?
4.Have you ever stopped smoking permanently?
?No
?Yes - When did you stop smoking permanently?
/ / |
You are reminded that:
The Declaration you signed on the claim form also covers the information you supply on this form.
f "Symbol" \s 7 \h — There are penalties for knowingly making false or misleading statements.
/ / |
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20158%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20091%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20128%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/20385%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=node/20255%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20172%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=node/20260%23comment-form
[8] https://clik.dva.gov.au/user/login?destination=node/20446%23comment-form
[9] https://clik.dva.gov.au/user/login?destination=node/20514%23comment-form
[10] https://clik.dva.gov.au/user/login?destination=node/20237%23comment-form
[11] https://clik.dva.gov.au/user/login?destination=node/20110%23comment-form
[12] https://clik.dva.gov.au/user/login?destination=node/20430%23comment-form
[13] https://clik.dva.gov.au/user/login?destination=node/20144%23comment-form
[14] https://clik.dva.gov.au/user/login?destination=node/20376%23comment-form
[15] https://clik.dva.gov.au/user/login?destination=node/20081%23comment-form
[16] https://clik.dva.gov.au/user/login?destination=node/20332%23comment-form
[17] https://clik.dva.gov.au/user/login?destination=node/20326%23comment-form
[18] https://clik.dva.gov.au/user/login?destination=node/20078%23comment-form
[19] https://clik.dva.gov.au/user/login?destination=node/20276%23comment-form
[20] https://clik.dva.gov.au/user/login?destination=node/20414%23comment-form
[21] https://clik.dva.gov.au/user/login?destination=node/20190%23comment-form
[22] https://clik.dva.gov.au/user/login?destination=node/20423%23comment-form
[23] https://clik.dva.gov.au/user/login?destination=node/20243%23comment-form
[24] https://clik.dva.gov.au/user/login?destination=node/20411%23comment-form
[25] http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2005/2005fcafc0127
[26] https://clik.dva.gov.au/user/login?destination=node/20246%23comment-form
[27] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-26-serious-and-wilful-misconduct/267-smoking/2672-investigating-and-determining-claims
[28] https://clik.dva.gov.au/user/login?destination=node/20107%23comment-form
[29] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-26-serious-and-wilful-misconduct/267-smoking/2675-smoking-questionnaire
[30] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-21-diseases-nexus-work/213-criteria-acceptance-liability-diseases/2134-1930-act
[31] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-21-diseases-nexus-work/213-criteria-acceptance-liability-diseases/2133-1971-act
[32] https://clik.dva.gov.au/user/login?destination=node/20264%23comment-form
[33] https://clik.dva.gov.au/user/login?destination=node/20185%23comment-form
[34] https://clik.dva.gov.au/user/login?destination=node/20164%23comment-form