Contents Bill Rolfe appointed Repatriation Commissioner 2

The Court’s reasons for judgment

[55] … I am … 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. …

[58] … 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.

[61] … to my mind, as I infer to the Senior Member’s, it is clear that s 6(1)(a) was intended to have a generous application where a Commonwealth employee is injured by a violent act. That is shown, apart from the very use of the wide test notoriously inherent in the expression ‘but for’, by the apparently exhaustive inclusion of the ways of conceiving what might be the original and crucial, employment-related circumstance: the ‘employee’s employment’, his/her performance of the ‘duties’, or the ‘functions’ of the employment. It remains true that the concept of ‘but for’ implies, indeed is synonymous with, some kind of causal connection.

[62] … It is to be inferred that, at least to some extent, it was in the interests of both the respondent and the military that she reside at the Base provided by the latter. The RAAF provided quarters there for young service men and women in close proximity. The Air Force provided living quarters for a female officer which could be entered, according to the filed material, by an intruder apparently simply removing a fly screen. It is certainly true that, ‘but for’ these and the other specific matters mentioned by the Tribunal, Ms Roberts would not have been injured. Some degree of causal connection exists. Moreover, I am unable to think that Parliament could not have intended that in such circumstances a female employee, sexually assaulted by a fellow employee, should be regarded as falling within the protection of s 6(1)(a). Parliament has clearly used language that could encompass that result. There is an evident generosity of approach towards employees injured by violent acts.

[63] If, which I doubt, it is necessary to distinguish the example given by the applicant of Ms Roberts’ circumstances, and an injury occurring then and there in the course of a private dispute, it is not, in my opinion, difficult to do so. The employer has no interest in an injured employee engaging in a private dispute. The employer who subsidises convenient accommodation does however, have an interest in the employee ordinarily utilising such accommodation and in being securely and comfortably accommodated there, from the enjoyment of which accommodation the employee will be suitably re-invigorated, to perform his or her actual duties. All Ms Roberts was doing was sleeping and enjoying the benefits of the accommodation which the employee had made it financially advantageous for her to use. She was doing what her employer envisaged and expected she would do. She was in no sense behaving in such a way that it would be anomalous to say that ensuing violence would not have recurred ‘but-for’ the employment.