Case: Roncevich v Repatriation Commission [2005] HCA 40
Outcome: followed
The applicant further submits that the Tribunal did not apply the correct interpretation of ' performance of duties ' as referred to in s 7 of the 1971 Act. The applicant states that the correct test was that enunciated by the High Court in Roncevich v Repatriation Commission [2005] HCA 40 at [23] (set out at [24] below). 22 The courts have recognised that employment can extend beyond the mere fulfilment of daily duties: see Favelle Mort Ltd v Murray; Henderson v The Commissioner of Railways (Western Australia) [1937] HCA 67 ; (1937) 58 CLR 281 ; Commonwealth v Oliver [1962] HCA 38 ; (1962) 107 CLR 353; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 ; (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley [1951] HCA 75 ; (1951) 84 CLR 126. Particularly with respect to employment in the armed forces, the courts have recognised that employment entails more than simply those duties which are the subject of commands and orders, and includes matters ancillary or incidental to those duties: see Comcare v Mather and Anor (1995) 37 ALD 463; Roncevich ; Commonwealth of Australia v Carter . 24 The High Court in Roncevich considered the question of the activities which constituted employment in the defence force. In Roncevich the applicant had become intoxicated whilst at a military function and had subsequently fallen and injured himself. There was evidence that attendance at the function had been expected but not compulsory. In deciding that the injury arose from the applicant's employment, McHugh, Gummow, Callinan and Heydon JJ said at [23]: '... whether an event arises in the course of an activity, or as here, out of "an activity", depends upon such matters as the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. ' [original emphasis] 26 A definition of employment which rests solely on a temporal distinction between periods on-duty and periods off-duty is likely to be inconsistent with the authorities outlined above. As was the case in Roncevich , there may be periods when a person is officially off-duty and yet is engaged in activities which, as a matter of practicality, form part of their employment. In Wall the Court also accepted that employment in the military may contribute to an injury if it places a person in circumstances which lead to an injury, even where the injurious activity is not specifically required or expected by the employment. I note that in the passage of Roncevich quoted above, the High Court referred to the need to take into consideration the circumstances in which employment is undertaken. This is consistent with previous authority to the effect that matters ancillary or incidental to employment form part of employment: see [22] above. 27 Following the above authorities, I consider that the appropriate approach is to consider the nature of the activity being undertaken at the time the injury is received or the disease is contracted, and the circumstances in which that activity is being undertaken. If the activity is the cause of the injury or disease, and that activity is something which is required or expected as part of the person's duties, then clearly the employment contributes to the injury or disease: see Roncevich . 28 However, even where the specific activity which leads to injury or disease is not itself required or expected as part of the person's duties, where the injury or disease flows from the circumstances in which that activity is undertaken, and those circumstances result from the employment, it may be concluded that the injury or disease was contributed to by the employment: for example, where an injury results from drinking contaminated water from a tap at barracks. Similarly, when the activity is undertaken solely or party because of the circumstances of the employment (as was the case in Wall ), the employment may be found to have contributed to the injury or disease. 29 As the Full Court noted in Wall , causation is a question of fact, and it may be difficult to establish that an injurious activity was engaged in as a result of the circumstances in which a person was placed by their employment: see Wall at [35]. In summary, I consider that an injury or disease may be contributed to by a person's employment if caused by an activity which forms part of that employment or if caused by the circumstances in which the employment is undertaken. 31 The Tribunal's findings with respect to the limits of the applicant's employment were set out relatively briefly although it is clear that the Tribunal had considered the decision of Roncevich when making its findings. The Tribunal adopted the correct approach, except for one aspect. It appears to me that in defining the scope of employment to be applied, the Tribunal may have excluded from its consideration the circumstances in which the employment was undertaken as a contributing factor to the development of injury or disease. However, for the reasons which follow, I do not consider that it was material in this case. 32 The principle that emerges from the above analysis is that in order to demonstrate that employment has contributed to an injury or disease, an applicant must be able to indicate, at least in a general sense, some activity which gave rise to the injury or disease. However in the present case, the applicant has been unable to identify the activity or circumstance which was the cause or likely cause of the infection which led to his reactive arthritis. The medical evidence demonstrates that there are two broad types of infection which might cause reactive arthritis: a gastro-enteric infection or a sexually transmitted disease. Which one of these in fact caused the arthritis is a material factor in determining whether it was more likely that the applicant contracted the infection as a result of his employment or as a result of an extraneous cause. 33 Whilst it is true that his infection may have been contributed to his employment, the Tribunal had no evidence to support the applicant's claim that this was the case. The fact that the applicant spent more time in employment than not in the four months leading up to the arthritis does not establish that the employment contributed to the infection. Whether it was more likely for the applicant to have contracted the infection while working depends entirely on the source of the infection. In the absence of any evidence relating to this issue, the Tribunal was right to reject the time-based probabilistic analysis urged by the applicant. 34 This finding does not mean that a person claiming compensation would always need to demonstrate the exact event which caused an illness to occur, or be able to show with certainty which activity was the cause. If, for example, the applicant in this case had demonstrated that an epidemic of gastro-enteric infections had been experienced at the barracks during the four-month period preceding the onset of his symptoms, the Tribunal may have been able to conclude that it was most likely to have been a gastro-enteric infection contracted in the course of employment which was the cause of his reactive arthritis. However, there is no evidence in the present case which allows the Tribunal to determine that the infection was most likely to have arisen from the applicant's employment. 35 I agree with the Tribunal's finding that the applicant's claim is speculative. There is simply no factual evidence enabling the Court to find that the employment by the respondent contributed to the applicant's disease. The fact that the respondent cannot disprove that the infection was contracted as a result of employment is not a reason to accept that the infection was contracted during employment. Accordingly, I consider the appeal must fail. 36 The delegate of the respondent who originally made the decision in this matter determined that the applicant had suffered a sprain of his left sacro-iliac joint in September 2004, but that the Commonwealth was not liable to pay compensation on and from 31 October 1972 as the condition had resolved within a month. The parties agreed before the Tribunal that this finding should be overturned, and an alternative finding should be made that liability was accepted, but that the applicant suffered no ongoing incapacity from his injury, as the delegate did not have the power to make an original decision in such terms. 37 In affirming the decision under review, the Tribunal failed to overturn the finding of the delegate as sought by both parties, presumably by oversight. The applicant therefore sought an order in this Court overturning that part of the Tribunal's decision which affirmed the delegate's finding with respect to that injury. The respondent has consented to this course before this Court. 38 The applicant says that until receipt of the respondent's submissions in this application, he was not aware that the respondent consented to the applicant's order in respect of the sacro-iliac joint. The applicant therefore claims costs of preparing its case concerning this issue in this Court. 39 I am not satisfied that the applicant should be entitled to its costs on this issue. The applicant was aware that the respondent had not objected to this course before the Tribunal, and therefore was likely to agree to the order sought. Although it may have been helpful for the respondent to have contacted the applicant at an earlier stage, in the absence of such contact the applicant could have sought clarification of the respondent's position before any costs were incurred. There is no evidence that the applicant sought clarification from the respondent at any time before the hearing.