Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115
Outcome: distinguished
The Tribunal Member held that the respondent's injury arose out of her employment. He relied on and sought to apply the decision of the High Court in Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115. The Member noted that in that case the fact that a serviceman's accident occurred on a military base after a social gathering was held to be a relevant matter as to whether the event arose out of Defence service. The Member considered that the High Court had adopted a broad interpretation of the words 'arose out of' in a particular section comparable to that to be considered under the Act, and that this broad interpretation was to be applied here. 13 On his application of the Roncevich principles, the Member said that the existence of several factors was sufficient to make the injury and the employment causally connected. They were: &#8226; the injury occurred at the RAAF Fairbairn site; &#8226; at the relevant time the respondent was living with the permission of her employer, which had been given pursuant to a policy issued by that employer; &#8226; in living at the base, the respondent was taking advantage of a financial benefit of her employment offered by her employer; and &#8226; the injury was occasioned by another RAAF employee living at RAAF Fairbairn at that time. 14 In reaching that finding, the Tribunal Member relied upon the 'ordinary meaning' of the words used in the definition of 'injury' in s 4 of the Act, namely 'arising out of ... the employee's employment'. Section 6(1)(a) of the Act provides an extended definition of 'arising out of' employment, but the Tribunal thought it not necessary to rely on that provision. Nevertheless, the Tribunal found that, had it been necessary to turn to that provision, it would have the effect that the respondent's injury 'arose out of' her employment. 15 The Tribunal Member also found that the respondent's injury occurred in a period between two discrete episodes of work, and therefore could not be said to have arisen 'in the course of' her employment. 24 The applicant pointed out that the expression 'arising out of' poses a test which is not satisfied by a merely temporal connection. Rather, a causal connection is necessary: Roncevich . So much was common ground. The applicant submitted that the Tribunal had failed to observe and apply this test, and that instead (and erroneously) the Tribunal had treated merely temporal factors as sufficient to establish causation. The applicant argued that no causal connection existed between the respondent's injury and her employment. Relying on March v Stramare [1991] HCA 12 ; (1991) 171 CLR 506, Carslogie Steamship Co Limited v Royal Norwegian Government [1951] UKHL 4 ; [1952] AC 292, and Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232, the applicant asserted that a causal connection between 'employment' and 'injury' can only exist when some aspect of the employment can properly be said to have increased the risk of the injury being sustained. Temporal factors which merely secure the presence of the claimant at the place where, or at the time when, he or she is injured are not enough to forge a causal connection with the injury without that increase in risk: March v Stramare per Mason CJ at 516.5. That doctrine, adopted for tortious liability also applies in workers' compensation cases: the test is the same. In Migge v Wormald Bros Industries Limited (1972) 2 NSWLR 29 at 44, in a judgment endorsed by the High Court on appeal, see Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236 per Barwick CJ, McTiernan, Menzies, Gibbs and Stephen JJ), Mason JA said: 'Moreover, the expression takes up the concept of causation as it is known to the law, without seeking to modify it. In Baker v Willoughby in an opinion which commanded the assent of a majority of the House Lord Reid said that causation in tort does not differ from causation under the workers' compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasized repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.' (References omitted.) I note that the question in Migge was one of whether an injured worker who decided to undergo an operation against medical advice had thereby introduced a novus actus interveniens so as to break a causal chain of claimed incapacity necessitated by the relevant statutory phrase: 'results from'. 25 In light of these authorities, the applicant argued that it was incumbent upon the Tribunal to ask itself, and answer, the following question: did any of the four factors identified by the Tribunal separately, or in combination, increase the risk of the respondent being injured? The Tribunal had not asked itself this question, as demonstrated by the absence of any reasoning directed to that topic in the 'Reasons for Decision'. Rather, the Tribunal identified temporal factors which merely secured the presence of the respondent at the place where, and at the time when, she was injured. The applicant argued that, however broad an interpretation is given to the words 'arising out of', they still pose a test of causation which is not satisfied by merely temporal connections (of time and place). 26 The applicant submitted that the four factors relied upon by the Tribunal were simply contextual factors which helped explain the time and place at which the respondent sustained her injury. Those factors would have been rendered wholly immaterial had the respondent decided to go away from the base for the time she was rostered off. While, in one sense, it may be true to say that, were it not for the respondent's employment she would probably never have met the assailant and would not have been living on the RAAF Fairbairn base etc, and so may never have sustained the particular injury in question, the 'but for' test has been decisively rejected as a reliable test of causation, in favour of common sense. Thus, while it was conceded that, but for the respondent's decision to stay on the RAAF Fairbairn base during her rostered time off, she would not have been injured at that time and place, as a matter of common sense causation, that decision could not be regarded as causally related to the employment nor to the injury itself. 27 Counsel argued that the true basis for the Tribunal's finding that the respondent's employment caused her injury arose from only two factors: first, that she and another employee were permitted to live on the RAAF Fairbairn base; and second, that the injury occurred on the base as a result of the actions of that other employee. Thus, although the Tribunal purportedly identified four relevant factors, all four related to 'living on Base'. 28 The applicant also distinguished Roncevich. The army base where the accident occurred in Roncevich was also the veteran's place of work, RAAF Fairbairn was not the respondent's place of work. The social function the respondent attended was not work-related, whereas in Roncevich it was. Unlike Roncevich , the respondent consumed no alcohol supplied or subsidised by the RAAF at that social function. Similarly, in the present case, there was no expectation on the part of the RAAF that the respondent consume alcohol at that social function, let alone to the point of intoxication such an expectation existed in Roncevich . Finally, in the present case, and unlike the circumstances in Roncevich , the respondent's injury did not occur in the course of a momentary break in attending to work-related matters. Rather, she had not worked the day before and she was not rostered for duty the next day. 29 The applicant argued that in Roncevich , the High Court had in fact, though sub silentio , considered that various work-related factors could properly be regarded as having increased the risk of injury particularly Mr Roncevich's work-induced intoxication. Those employment factors were not mere ingredients in the context (or scene-setting) of the serviceman's injury. So much could be seen from the following : &#8226; the High Court emphasised that to satisfy the 'arising out of the ... employment' test connection between employment and injury must be a causal one; &#8226; in context, the Court used the word 'temporal' of or denoting time or time and space'; &#8226; the Court had really considered that it was open to conclude that Mr Roncevich's injury 'arose out of or was attributable' to defence service because such service materially increased the risk of injury by entailing that Mr Roncevich had to iron his uniform for the next day; and &#8226; Roncevich is consistent with the causal factors being confined to work-related factors which increased the risk of injury. 30 In the alternative, the applicant submitted that, if the Court should take the view that the Tribunal had not conflated temporal and causative factors, the Tribunal had failed to give any reasons as to why the four factors which it relied upon were regarded as having increased the risk of injury to the respondent. 44 This overlap was said to be significant in light of the High Court's decision in Roncevich , Hatzimanolis and Danvers . However, the latter two cases are both akin to 'camping out' cases. They turned on the application of the 'in the course of the employment' test. No question arises before me as to that conception in the present case. 45 Here, the respondent was entitled to apply to live on base as a term and condition of her employment, and it was financially beneficial for her to do so. The respondent argued that, by this financial inducement to her, the RAAF thereby 'invited' or 'encouraged' her to take up the option, such that her case was not materially distinguishable from Danvers where a peripatetic railway worker was free, but it was not practicable, for him to reside other than in the railway van provided. 46 The respondent asserted that whilst living on base she was 'no doubt' subject to military discipline. This element and the fact that the injury occurred on the base, were factors identified by the High Court in Roncevich as relevant to the finding of a causal nexus. The significance of these matters must, I think, be conceded as tending against the applicant's asserted 'increased risks' requirement. I note that there was, however, no finding about military discipline here, nor was there any exploration of the military instruments which might, as a matter of law, have settled the matter. 47 The respondent relied on Tuite as authority that there is no need for a claimant to show that the incidents of service life materially increased the risk of the particular injury. Davies J said at 542: 'If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury ..., it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere ... . The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease'. However, in Tuite the Court acknowledged that there is a distinction between the operative cause of an injury and the mere provision of a setting for it. 54 It is a question of law whether there is any evidence sufficient to find that a statutory test of the kind here in question has been complied with. This is not a case of ordinary words with a plain meaning but of a compound statutory concept employing what have become terms of legal art, or something close to them: Roncevich at 123. The revised questions of law are adequate to engage the Court's jurisdiction. Had my conclusion been different, I would have reformulated them a little before answering them. 55 Counsel for the applicant ably made a respectable argument as to the meaning of the phrase 'injury ... arising out of ... the employee's employment'. In the view I take it is neither necessary nor desirable that I resolve that question to finality. I am however inclined, on a tentative basis, to think that the requirement asserted by the applicant that the employee must show some elevation of the risk of the injury sustained, which elevation must result from the employment, is mistaken and that it is enough that there can be shown, as a matter of common sense, some substantial link or connection with the employment which is causal and not merely temporal. Among other things, some of the matters regarded by the High Court in Roncevich as relevant to the 'arising out of ... test' were not, it would seem, of any notable relevance to a restricted view of causation, such as that urged by the applicant, but were relevant to the less restrictive view I am inclined to favour. Questions might, however, possibly arise as to whether the test so stated could, as a matter of law, be satisfied by the matters to which the Senior Member referred. 56 Roncevich is, as the applicants argued, clearly distinguishable on the facts of the present case. The 'in the course of the employment' test was not available in that case. It might be thought that its facts would readily fit within such a conception. Such a factor may well assist to provide evidence also of a causal, as well as a temporal link. 57 It must be acknowledged that, on the scant known facts, this case would, if it fits at all within the meaning of 'arising out of ....', without its s 6(1)(a) extension, sit at the very margins of the concept. 58 It is unnecessary to proceed further down that track because, in my view, for the reasons I give below, s 6(1)(a) compels the rejection of the applicant's case. It is undesirable to do so because many potentially relevant facts appear not to have been elucidated, for example: How long was Ms Roberts' posting in Canberra? To what extent was there any real advantage to the military in having her quartered where she was? What was the extent of any encouragement by the RAAF for her to live on the Base as distinct from elsewhere? Had her assailant become drunk at the Base 'Club'? Was the 'Club' organised by the Air Force? Were personnel smiled on, as in Roncevich, for drinking heartily or even more than that? Was the assailant, on that account, affected by liquor? Did disinhibition by liquor account for his behaviour? Was the respondent, on account of a RAAF-tolerated drinking culture, so affected? If so, did the influence of alcohol lead to any lack of care by her as to providing, unwittingly, the opportunity for her assailant to intrude upon her by leaving her window open on a May night in Canberra? Was she, at the time, subject to military discipline? Why was the matter solely investigated in a military context without calling in the civilian police? The answers to questions like these may have assisted one party or the other notwithstanding that, apparently, they were not forensically elucidated by either party for the Tribunal's benefit. 59 It is unnecessary to deal with the applicant's major submission because, in my opinion, the Senior Member's alternative basis for his conclusion, namely reliance on s 6(1)(a), is not shown to be affected by any error of law.