Where an ADF member submits to an abnormal risk of injury, it also must be established that he/she 'voluntarily and unreasonably' submitted to that risk. – i.e. both conditions must apply.
'Voluntary' is defined in the Concise Oxford Dictionary as:
voluntary 1. done, acting, or able to act of one's own free will; not constrained or compulsory, intentional...
In the context of S6(3), it also connotes that the member was aware of the 'abnormal risk' and undertook the activity anyway. In Taylor v Stapely (1954) the High Court considered that the employee may not have foreseen the extent of the risk and therefore his submission to it could not have been voluntary. The fact that an employee has put himself or herself in a position of exposure to abnormal risk of injury could not be considered voluntary if the employee could not, or actually did not, foresee the extent of the risk.
This is well illustrated by the decision of the Administrative Appeals Tribunal in Re Grime and Telstra Corporation Limited (1994) where an employee drove 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, and that therefore it could not be said that he voluntarily submitted to an abnormal risk of injury. The Tribunal considered 'that 'voluntarily, for the purpose of S6(3), requires something more than an act being done without compulsion, and that it does require the free consent of the injured employee, this necessarily encompassing that the employee fully appreciate the risk which is being undertaken'.
Nevertheless, it was, however, agreed between the parties that the employee had been guilty of 'serious and wilful misconduct' in terms of S4(13).
'Unreasonable' and 'reasonable' are defined in the Concise Oxford Dictionary:
unreasonable 1. going beyond the limits of what is reasonable or equitable. 2. Not guided by or listening to reason.
reasonable 1. having sound judgement; moderate; ready to listen to reason 2. In accordance with reason; not absurd. .
Whether a member was unreasonable in his or her submission to the abnormal risk of injury must be decided on the facts of the particular case. Issues which would need to be considered in that context would be the member's capabilities and knowledge about the activity, precautions taken, etc.
If a member's ADF duties include exposure to activities which bear an inherent risk
(e.g. diving or parachuting), submission to that risk would always be considered 'reasonable' unless the member was in breach of discipline in undertaking the activity. Some Defence Force members may necessarily be required to undertake activities which have a high degree of inherent risk. While such activities may involve an abnormal risk, it is important to note that the exclusion also requires a 'voluntary and unreasonable' submission to the abnormal risk. As discussed below, actions in the course of ADF duty would not be 'unreasonable' in such circumstances, and thus the exclusion would not apply.
In relation to sporting activities, the nature of the member's ordinary duties, any pre-existing injuries, the use of suitable safety equipment (e.g. gym mats) and the availability of appropriate supervision and training could be relevant factors.
Note also in this regard, the comments made at part 19.5 of this Handbook in relation to ADF sponsored 'adventurous training' and other approved off-duty activities.
It is clear that where an employee and his friends indulged in motor cycle racing through the staff car park during his lunch hour, any injury received during this inherently risky behaviour would be excluded by S6(3), even if the employee claimed not to be aware of excessive danger.
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