Contents Bill Rolfe appointed Repatriation Commissioner 2
Death from an accepted disability
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- Unintended consequence of treatment
- Purpose of the transitional provisions
Death from an accepted disabilityIf a person dies from an injury or disease that has already been accepted under the VEA or MRCA, there is no need to link that death to service. The death will be deemed to be a service death. T A similar phrase, ‘incapacity from which he died’, appeared in s 24(2)(a) of the Repatriation Act 1920, and was examined in detail by the Federal Court in Repatriation Commission v Hayes.21 In that case, Keely J held that the Repatriation Review Tribunal had erred when it decided that the test was satisfied by finding that the incapacity ‘played some material part’ in the veteran’s death. Keely J held that it could be satisfied where ‘the ordinary answer of an ordinary man … would be that the death has “resulted” from incapacity’. This indicates that ‘from which the veteran died’ is a more direct causal test than ‘arose out of, or was attributable to’, and requires a reasonably proximate relationship between the accepted disability and the veteran’s death. It appears to be similar to the causation test the High Court said applies in negligence cases. In March v Stramare,22 Mason CJ said: The common law tradition is that what was the cause of a particular occurrence is a question of fact which must be determined by applying commonsense to the facts of each particular case. Liability for the death cannot be accepted under this provision if the injury or disease had been accepted on the basis of it being aggravated by service, and immediately before the death, that injury or disease was no longer aggravated or contributed to in a material degree. Unintended consequence of treatmentUnder s 29, liability can be accepted for an injury or disease that is the ‘unintended consequence’ of medical treatment obtained under the Defence Regulations. The reasonable satisfaction standard of proof applies to this connection for all types of service, not only peacetime service. C Section 29 also covers any injury or disease that was a consequence of treatment obtained under the MRCA, even if it was not ‘unintended’. Former members who have a Gold Card for treatment under the MRCA are entitled to be treated for any injury or disease, whether it is a service injury or disease or not. Section 29 does not apply to treatment for a non service injury or disease under the MRCA. Comcare v Houghton23 indicated that an ‘unintended consequence’ case involves a number of steps: Step 1 Identify the injury or disease that is said to have resulted from the treatment Step 2 Decide whether that injury or disease was caused by the treatment and was not merely associated with the treatment. Step 3 Decide whether the injury or disease was ‘unintended’. An ‘unintended consequence’ of medical treatment is a consequence of the treatment that is both:
It is not an unintended consequence if it was known to be an unavoidable outcome of the treatment even though not desired. ‘Treatment’ is defined in section 5 of the MRCA. The reasonable satisfaction standard of proof applies to the provision for all claims, not merely for peacetime service. Statements of Principles do not apply. Effects of s 9A and s 70A of the VEA When enacted in 1986, the VEA provided that eligibility for ‘defence service’ under the VEA would continue only until the establishment of a Military Compensation Scheme. In 1994, ADF-specific amendments were made to the SRCA to establish a Military Compensation Scheme. The Review of the Military Compensation Scheme (the Tanzer Review) was initiated after the Government had made interim adjustments to compensation benefits for ADF members as a result of the Black Hawk helicopter accident. The Tanzer Review recommended the introduction of a self-contained safety, compensation and rehabilitation scheme for the ADF based on the distinct nature and needs of military service. The new scheme is administered by the MRCC through DVA and is a military-specific compensation scheme. The MRCA provides rehabilitation, treatment, compensation and a range of other entitlements for members and former members of the ADF in respect of injury, disease or death related to service rendered on or after 1 July 2004. It also provides for their dependants and other eligible persons.
The purpose of the transitional provisions is to clarify which Act compensation can be paid under, and to provide for the smooth transition from eligibility under the VEA and SRCA to commencement of eligibility under the MRCA for injuries and diseases related to service on or after 1 July 2004. They address the possibility of anomalies where several injuries may be assessed under different schemes using different procedures and with different trigger points for additional payments. The transitional provisions do not have any effect for those people who have eligible service only under the VEA or have eligible service only under the MRCA. As part of the transitional provisions, s 9A and s 70A of the VEA (the ‘closing-off’ provisions) were enacted to close off liability under the VEA if the injury, disease or death is related to service rendered on or after 1 July 2004. Generally, the scheme applies to all military service and for all injuries occurring after 1 July 2004, with current arrangements continuing for those injured before that date. Generally entitlements are available under one Act and not two. Such things as travel allowance, aids and appliances, attendant care, funeral benefits and rehabilitation are payable only under one Act. Generally, under the MRCA only that aggravated portion due to service is compensated. This is important when dealing with the cessation of coverage under one Act and the transfer to the MRCA. Where relevant, claimants retain the right to pursue their claim under the VEA and not to claim under the MRCA.
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he kind of connection between the accepted injury or disease and the death must be a reasonably proximate and direct cause.20 
ertain members of the ADF are entitled to treatment for any injury or disease, whether a service