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VeRBosity
Journal of the Veterans' Review Board
�Selected Decisions of the
Administrative Appeals Tribunal
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Equipment borrowed for private purpose - whether injury arose out of service
Re G S Kilmaster and Repatriation Commission
McDonald, Gillham and Re
V98/213
15 October 1998
[Full Text]
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Mr Kilmaster lodged an application to the Tribunal for review of a decision that his back injury was not defence-caused under s 70(5) of the VE Act. The circumstances of his injury were that he had borrowed an Army generator for use on a camping trip while he was on leave. He was permitted to borrow equipment while on leave on condition that it was returned to store as soon as practicable. When returning the generator, he leant across the tray of his vehicle to lift the generator and sustained a lumbar sacral intervertebral prolapse.
The Repatriation Commission conceded that the member's injury satisfied the definition of "trauma" in the relevant Statement of Principles. The sole issue was whether his injury "arose out of or was attributable to [his] defence service". His commanding officer's evidence was that the Army regarded a member as returning to duty for the period of time it took to clean and secure the equipment. He also regarded the applicant as responding to his order to return the equipment as soon as practicable after the private use had finished.
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Submissions
The Repatriation Commission submitted that the borrowing and use of the generator was something which "lay within the sphere of the applicant's personal life and was not something with a causal connection with defence service". The advocate relied on comments made by Davies J in Holthouse v Repatriation Commission (1982) 1 RPD 287. In Holthouse, the applicant incurred a back injury while lifting a pot plant at his home as a result of being posted to a different location. The removal of the pot plant in those circumstances was determined to be a private activity.
Mr Kilmaster's counsel submitted that the Tribunal should take an inclusive view of the phrase "arose out of or was attributable to" in s 70(5) of the VE Act.
Tribunal's conclusion
In accepting that Mr Kilmaster's back injury was defence-caused, the Tribunal said:
"... Bearing in mind Major Bennett's evidence that the repair and securing of borrowed equipment is regarded as being part of a serviceman's service, then the Tribunal is unable to see how the applicant in the circumstances of this case was other than engaged in an activity 'arising out of his service'. He was engaged in unloading the generator from his vehicle in order to secure it. The Tribunal accepts that, if the applicant had been injured while using the generator at Yarrawonga, then that was an activity which would have arisen as part of his personal life, and would not be causally linked to his service. That situation is distinguishable from the activity that the applicant was engaged in, in returning and securing the equipment. Given that it was an accepted policy of the Defence Forces to allow personnel to borrow equipment, that there was, at least, a direction, if not an order, that the equipment be returned as soon as practicable and that it be repaired if the need arose and secured, the Tribunal is satisfied that in carrying out that latter function the applicant was engaged in defence service and, accordingly, qualifies under the provisions of s 70(5)(a) of the Act."
Formal decision
The Tribunal set aside the decision under review and determined that Mr Kilmaster's lumbar sacral intervertebral prolapse was defence-caused.