~~ i oe ae ONE rman aed ae at ome - i / JUDGMENT No, 2.8 y 1782 * e0000000b000NG0NUas O2D0ND0R00000 Repatriation - coapensation for injury claimed - Javal officer vosted - accommocation provided - moved pot plant prior to leasing home - received injury - whether accident "that would not have occurred ... but for the member being on defence service" Neaning of "but for" Repatriation Act 1320, ss.101, 10773, 107%, 107 — DAVID GUY HOLTHOUSE v REPATRIATION COMMISSION No. ACT G.47 of 1981 Coram : Davies, J Canberra 24 June 1982 Se ee oc! IN THE TEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G.47 of 1931 ) ) CENERAL DIVISION on appe Review Ww al From the Repatriation Tribunal Pp e BETWEEN : DAVID SUY HOLTHOUSE Appellant REPATRIATION COMUISSION Respondent ORDER JUDGL MAXING ORDER Davies, J DATC OF ORDER 24 June 1982 Canberra WHORE tiiDE THLE COURT ORDERS Tne appeal be dismissed with costs. o IM THE PEDERAL COURT OF AUSTRALIA \USTRALIXN CAPITAL TLRRITORY DISTRICT ReGISTPY Jo. ACT G.47 Of 1981 SENERAL DIVISION On apoecl from the Repatriation Review Tribunal BETWEEN : DAVID SUY HOLTHOUSE Apoelliant i] oo REPATRIATIID COMMISSION Respondent REASONS FOR JUDGMULNT 24 June 1932 DAVIES, J This is an eapoeal from a decision of the Repatriation Revigw Tribunal made on 16 November 1981 which affirmed a decision of the Repatriation Commission dated 21 October 1981 rejecting a claim of David Guy Hoithouse made under the Repatriation Act 1320. en ey FL Aree iS) The facts are not in disvoute. Mr. Holtnouse 1s a cragular serving officer in the Royal Australian Wavy and a regular serviceian for the purposes of division 190 Part Tit of the Repatriation Act (see ss.107J and 107%). in Februacy 1973, te. Holthouse was posted to @4aS 'ilrimba, a snore station at Quaker's fill, New South Wales, there to take up duty as Commanding Officer. lle was provided with sccommodation at HMAS Nirimba and 1t was either required or desirable that he, his wife and children snould move to thnat accommodation from their none in Longueville, Wew South wales. Accordingly, wir. doltnouse made arrangements for his Family's removal to HilAS Nirimba and for the letting of his nome at Longueville. The cost of removal was met by the Commonvealth of Australia but an ordinary tera of the renoval arrangements, set out in the Furniture Removals Guidance Hand Book, published by the Department of Administrative Services, was : "13. ...you are required to make all arrangements for and meet the cost of removal of items such as fowls and other livestock, plants, shrubs, trees, firewood, coal, coke etc. Often the removalist employed oy Transport and Storage will undertake the removal of these items by versonal arrangement with thc owner; however, 1t must be understood tnat quarantine regulations govern the transfer of certain plants, seeds etc. across State borders." At his home at Longueville, Mr. Holthouse had a large potted palm which he had placed under a verandah. As wr. tlolthouse proposed to let the house to a tenant, he decided to move the palm fron under the verandah so that 1t would receive moisture from the rain even if it were not adequately watered by the tenant. After moving the palm, Mr. Holthouse felt pain in his groin, left hip and back. Subsequent medical examination disclosed that Mr. Holthouse nad lunabar spondylosis and intervertebral disc lesions at L2/3 level. It 1S probable that the lesions resulted fron or were aggravated by the moving of the large potted palm, a heavy object. In his claim for a repatriation pension, mr. Holthouse relied upon s.l07e of the Revatriation ict, Of whicn sub-sections (1) — and (2) read : "107u.(1) Uson the incapacity or deatr of a nemper of the Forces whose incapacity or death has arisen out of, or 1S ateributaple to, nis defence Service, Australia is, subject to this Act, liable to vay to the menber, to tne dependants of the member or to ooth, as the case flay be, pensions in accordance with Division 1, as applied by section 107H. (2) For the purposes of sub-section (1) but without affecting the generality of that sub-section, the incapacity or death of a member snall be deemed to nave arisen out of his defence service if the incapacity or death was the result of - (a) an accident that haopened to tne nember wnile he was travelling to or from fis place of employment on defence service; or (b) an accident, a disease or an infection that would not heve occurred or been contracted, «s the case may be, but for - (i) the member being on defence service; or (11) changes in the environment of the member consequent upon the member being on defence service." Sub-section (1) specifies the ordinary or standard test. The words ",..has arisen out of, or 18 attributable to, ..." require there to be a causal connection between the defence service and —<—== = the incapacity or death. The words require tnat the defence service contribute in a material way to the incapacity or death. The connection need not be the sole, dominant, direct or proximate cause and effect. It is sufficient if there be a contributory cause or connection (sce McNicol v Commonwealtn of Australia, (1959) 119 CLR 126 at 129; Iiunan v Cockatoo Docks & Engineering Co. Ltd., (13941) 41 SR NSW 119 at 124; W. v Minister of Pensions, (1946) 2 411 ER 501 at 502; Minister of Pensions v Chenneoll, (1946) 2 All ER 719 at 729-1; Marshall v Minister of Pensions, (1947) 2 111 ER 706 at 798; Revatriation Commission v Law (1981) 35 ALR 411. wnemenatree yy ~~ I> In working out the cnoin of causation leading to an inccinacity or death, difficulties will often arise when 1t cannot be said that tne defence service was the filrect, tne proximate or the substantial cause of the incadacity or death. 4s Denning J said in Cnennell's case at page 721 : "Much depends on the right aporoach, Tne best way 1S tO Start with the injury and inauire what are tne causes of it. Sometimes there nay be a single cause. More often there is a combination of causes. If the discharge of a missile or other event may be voroperly said to be a cause of the unjury, tnat 1s sufficient to entitle the claimant to an award of a vension, notwithstanding that there nay be other causes co-operating to produce 1t, whether they be antecedent, concurrent or intervening. It 1S not necessary that che discharge of the missile or other event snould be 'the' cause of the injury in the sense either of the sole cause or of the effective and predominant cause. In many cases where there 15 a conbination of causes, 1t 1S impossible to single out one cause as distinct from otners, and any attempt to acnieve that impossible task would lead to difficulties as the insurance cases amply snow." However, 1t 18s sufficient that there be a causal connection and that that causal connection has contributed in a material way to tne incapacity or death. The facts of the present case do not satisfy that test. As Denning J said in tiedderspocn v Minister of Pensions, (1947) 1 K3 562 at 563-4 : "Tne cases show that when the cause of the deatn or disablement lies an the man's own personal or domestic sphere, and the war service does no aore than provide the circumstances in which the cause operated, 1t 1S not attributable to war service." The cause of tix. HWolthouse''s incapacity was his moving the potted polm fron one place in his nome to another. Tnlis was a Matter which lay within the svohere of his personal life, The Defence Forces had no concern with whether Mr. Holthouse maintained a potted palm, whether he kept it under the verandah, whether he put 1t out into the oven or even whether he took it with him to HMAS Nirimba,. The Defence Forces were totally indifferent to tnese matters, a fact which 1s nade spundantly clear by clause 13 of the removal conditions whicn I have set out above, The cas 18 thus unlike Comnonveralth of \uscralia vv Pearson (Smitners, Fox and Sheppard JJ, j3elivored 23 February 1932), in whicn a surfic1rent causal connection was found for Commonwealth engloyees' compensation pursoses in a situation where th2 respondent was injured whilst sk1ring with the encouragement of Superior officers during tne course of training to be a member cf the Navy ski tear. A similar case was Commonwealth of Australia v Lyon, 24 ALR 300. By contrast, in ftlcDermott v Commonwealth of Australia (Fox J, delivered 13 Decenper 1931), the Court disnissed an appeal from a decision of the Administrative Appeals Tribunal which ncd held that an officer wno had attended an office barbecue on the shore of Lake Burley Griffin ard who vas injured when he went for a Swim was not entitled to compensetion. Although the function which he attended had ae sufficient connection with his enoloyment, n2S Swim waS an activity whicn was personal to him. The Tribunal had described the swimmers es being on a frolic of their own. In the present case, a Majority of the Repatriation Review fribunal found that the removal of the wot plant was not an event which arose out of, or was attributable to, ifr. Holthouse's defence service. This was a decision on the facts and probably involved no point of law susceptible of review oy way of appeal. Even 1f£ 1t did, I agree with the view taken by the Repatriation Review Tribunal. The removal of the pot plant was a matter which lay purely within the versonal life of Mr. Holthouse. Tne law recognises a distinction between matters which are of a purely personal or private nature and matters which have a connection with employment. Tne ambit of the former was considered in Lunney v Comnissioner of Taxation, (1958) 100 CLr 478 at 501, where Williams, Kitto and Taylor JJ, in rejecting a view that travel to and fron a place of employment provided a ye tee 8 - oF . deductible expense for income tax ourposes, said : "No doubt the legislative provisions which required consideration in tnese cases were not identical witn s.51, but tne process of reasoning by which tney were aecided consistently rejects the notion that expenditure incurred by 4 taxovayer in order to travel from his nome to nis place of business 1s, in any sense, a ousiness exoenditure or an expenditure incurred in, or in the course of, earning assessable incone, Indeed they go Curther and refuse assent to the proposition that such expenditure 1S, 1n any relevant sense, incurred for the purpose of earning assessable income and unanimously accept the view that 1t 1S properly Cnaracterised as a personal or living exvensc. Thls view agrees witn that which we, ourselves, entertain. Exvenditure of this character 1s not by any process of reasoning a business expense; indeed, 1t possesses no attribute wnatever capable of giving it the colour of a business expense." The viev taken there and elsewhere witn cespect to travel to and from a place of enployment has resulted in the provisions now appearing in the employees' compensation legislation and in s.10711(2)(a) of the Revatriation act, which now take ganerally compensable incapacity or death arising out of an accident occurring in the course of travel to and from the place of enployment. But, nevertheless, the general distinction between a person's personal life and his emvoloynent is a distinction which 1s inherent in nany areas of tne law, including s.107 of the Repatriation Act. It was submitted by dir. J. Purnell, counsel for iir. Holtnouse, that tne removal to the new home at d.iAS Nirimoa was required by the circumstances of Mr. Holthouse's defence service and that the moving of the potted vlant was a part of that removal. Sut 1t waS not a vart of the removal. It was done for the purpose of arranging the home at Longueville for the occupation by the tenant to wnom Mr. Holthouse had let 1t. The removing of the palm was an afiair of his personal life with which the Defence Forees had no concern. Thus, iir. Holthouse's claim 1S not Supported by s.1l07M(1). Hovever, tr. Purnell, in nis address, relied srincivally uson the 'provisions of paragraph (b)(1) of sub-section (2). He sald that an incapacity 1s deemed to erise out of defence service 1f 1t 15 the rasult of an accident that would not nave occurred but for the member being on Jefence service. tr. Purnell supmitte? that one had only to take the express words of the sub-section, tnat one should simply look to see whether the incadacity would have occurred but for service in the Defence Forces. Mr. Purnell submitted tnat the accident would not have occurred in February 1978 but for the fact that Mr. Holthouse had been ordered to move to HrliAS Nirimba. That was the occasion which gave rise to the incapacity. In my opinion, tr. Purnell's submission gives to parajraoh 197:1(2) (b) (1) a significance whicn is inconsistent with the placc which 1t holds in the structure of the Repatriation Act. If tir. Purnell's submission were correct, paragraph 107M(2)(0)(1) would be oredoninant among the provisions of s.107li. In my view, ss.101 and 107% of the Repatriation Act are nor to be given effect by a simplistic, literal application of their terms. Tne provisions are based upon well understood concepts of causation which have been dealt with in many fields of the law, articularly in relation to workers' compensation legislation. P is g In my opinion, paragraph 1974(2)(b){(1) was intended to nave and has the effect of extending the ordinary or standard test laid down in sub-section (1) ain that 1t does away with tne distinction, sometimes discussed in cases, between a causa causens and a causa sine qua non, In Repatriation Commission v Law, cited above, at page 421, Aickin J, with wnom Gibbs CJ, Stephen and tiason JJ agreed, expressed the view thet an equivalent provision, s.101(1A4), "...vas plainly inserted to extend the area of compensation...". But has Honour did not proceed upon the footing that the sub-section provided a totally nev and different test. Indced, at page 423, his Honour said, "In so far as the claimant had to prove anything, she had to establisn two things, first that the ee eine a ee carcinoma from whicn her husband died was caused by smoking, and that was found by the Peview Tribunal; and second, tnat his smoking had erisen out of or was attributable to nis war service, including nis rmorisonment in Japanese prisoner-of-war camps. Section 191(1)(5) ana (14%) require no Nore ctnan that." Thus, his Wonour directed his attention to the ordinary test tnough 1t be extended by s.101(1A) and not to repiacement of that test by a novel and new test founded upon the words "but for". Tne rationale for s.l07H(2)(p) can be seen in the many early e cases in the area of employees' compensation and in other frelds of law which rejected claims whicn at the present day vould be allowed. Thus, in Craske v Wigen, (19939) 2 K3 625 at 6$33-), Cozens-Hardy MR said : "J think it would be dangerous to depart from that whicn, so far as I am aware, has been the invariable rule of the Court of Appeal since these Acts came into operation, namely, to hold thar it 1S not enough for the applicant to say 'Tne eccident would not have happened if I had not been engaged in thac employnent or 1f I had not been in that particular place.' He must go further and must say 'Tne accident arose because of something I was doing in the course of my employment or pecause I was exposed by tne nature of my emoloyment to some peculiar danger.' Unless something of that Kind 1S established the applicant must fail, because the accident 15 not one arising out of and zn tne course of the employment." The limited view which was taken in that case has not been followed (eg, Thon or Simpson v Sinclair (1917) 1¢ 127). Section 107%1(2)(b) makes 1t clear that such a limited view has no place in the operation of s.1lQ7M. On the other hand, s.107N(2)(b) does not in my view abbrogate the ordinary principles of causality or dispense with the requiremant that the defence service be a contributing cause of the incapacity or death. Although the effect of the provision is to eatend s.107N(1), it extends that provision by doing away with some of the past concepts which if applied would unduly limit the operation of that principal provision. more ences ow , -- - . e 9. I therefore turn to see whether 'ir. Holthouse's defence service was a cause which contributed to his incapacity. The cause was sc1id poy ir. Purneli to arise from tne fact tnat removal to HAAS ilirzaba was the occasion of the noving of the pot plant. Rut, tne posting to HMAS Nirinba vas not a cause of tne moving of tne pot plant, it simply explains why the pot plant was moved at that particular tiie. The noving of the pot plant was not pert of the removal to HMAS Nirimba. Mr. Holthouse's incapacity arose solely fron the fact that ne was 1oving the pot olant witn a view to letting his private hone to a tenant. As I have already said, whether he let his home to a tenant, whether he maintained the pot plant and where he kept the pot plant were all matters of no concern to the Defence Forces. They were matters purely within Mr. Holthouse's private life. In my oninion, tnerefore, s.107M(2)(b)(1) does not assist the claim. For these reasons, I agree with the decision of the Repatriation Review Tribunal. Mr. Purnell furtner challenged the decision of tne Repatriation Review Tribunal on the basis that tne reasons of the majority took into account irrelevant considerations. Tne Farst urrelevant consideration alleged appeared in the passage in the reasons, "On 28 January 1931 the Department of Veterans' Affairs received from the Department of Defence a letter which advised of the rejection of a claim by Captain Holthouse made under the Conpensation (Commonwealth Government Lmployees) Act 1971." That passage was immediately followed by the following : "The letter also had attached to it a copy of Captain Holthouse's claim as filed by him on 19 December 1979 for compensation purposes. This document whicn coincides date-wise with his apolication for benefits under the Act 1s also noted by us. In this regard we find that in this latter claim the member therein stated he suffered we eee eee ae meee 19. an injury described as 'back pain - cause not yet positively Giagnosed' whicn occurred while : "Shifting a heavy weight during preparation of own house for tenancy necessitated by depertaentel reaoval on posting' ." a There 1S no paragraph between tne two passages. Tn my view, the passaje the supject of the submission was simvly oart of a recitation of the history of the matter and played no part in the decision save in so far as the Tribunal accented that the clain made for employecs' compensetion suoported the facts alleged by Mr. Holthouse in his claim for a repatriation pension. Therefore, although the passage complained of could have been omitted, 1t did not affect the decision, Of the next four matters whicn were said to be irrelevant considerations, 1t 1s sufficient that I set out as an examole the passege in the reasons reading : "The Applicant might have taken a variety of actions in relation to the letting of his house and, indeed, had a whole range of alternatives available to him in regard to and dealing with that letting including the dete1ll of preservation of the pot plant." In one sense it was irrelevant to consider what the applicant might heve done in nis personal life, the relevant question being to wnat extent the defence service contributed to the accident. However, I think that the members of the Tribunal were simply putting in thelr own words the substance of the views whicn [I have expressed in these reasons, I do not find in tneir reasons any matter which was entirely irrelevant or wrong. clr. Purnell made = nunber of attacks upon the law stated by the Najority of the Tribunal. These submissions were, however, based in essence upon the view of the words "but for" which ir. Purnell put to me and which I do not accept. The majority of the Repatriation Review Tribunal adopted the correct test with respect to s.1l07H(1). As to s.197M(2), the najority of the Tribunal said : "Pull consideration of tne foregoirg and other like axamoles has led us to a conclusion toat in tno enactment of Section 107M(2) che Parliament J1d not intend to extend the Meaning of 'arising out of' defence service to personal orf donestic actions that sre quite renote Fron tne defence sarvice of cone member." In conclusion, the majority said : "de find that the causal connection, if any, between tha circumstances from which the Applicant's incapacity arose and nis defence service 1s, because of the personal nature of the incident, too tenuous to constitute the causation amplicit in the wording of Section 107% of the Act either 'arising out of' or 'attributable to' or as a 'but for' cause." The views tnere exoressSed are in substance tnose which I have sougnt to express in these reasons. Finally, Hr. Purnell submitted that the Revatriation Revisy Tribunal applied an incorrect onus of proof, that, "...1t required the Applicant to prove causation of the anoving of tune pot plant in his garden with his defence service..." and "The evidence was such that the Tribuneal properly directing itself as to relevant matters of law could not have reacned the conclusion that 21t waS Satisfied beyond reasonable doubt that there were insufficzrent grounds for granting the claim." In my opinion, however, the determination of Mr. Holthcuse's clzim did not turn upon any matter of onus of proof, but rather upon the conclusion to be drawn from facts which were not in dispute. Mr. Purnell submitted that, having regard to tne onus of proof, the Repatriation Review Tribunal snould have accepted that there was a reasonable vossibility that tir. flolthouse would not nave moved the pot plant either when he did or at any other time but for his posting to HMAS MNurimba. However, even 1£ this be accepted, the Tribunal's decision nevertheless waS correct, for the reasons which the majority of the Tribunal gave. Even accepting tnis possibility, the defence service was not a cause weer aetentenneenenaa - 12. a ; E 2 a neapacity of itr. Holthouse's incagacity for the causes of that 1 ° y lay solely within the circumstances of his personal life. For these reasons, tne appeal will be dismissed vith costs. a et ri eerrntaran ema caer ween | CERTIFY THAT THIS AND THE Facrhve | PRECEDING PAGES ARE A TRUE fOr OF THE SVUDGC PENT BG PTE A Tt BECHiGiks ND REASONS FOR BE Brest HEREIN OF THE COCRT or Me Horrouy De uation Marnesea Signed K d <F4 Dated 3/ 6 {[¥2, hAember/Assoc /Clerk