Contents Bill Rolfe appointed Repatriation Commissioner 2

But for

The ‘but for’ provision was inserted into Repatriation legislation in 1943 for the purpose of clarifying eligibility in ‘doubtful’ cases. At least this was the view of the Attorney-General at the time, the Hon H V Evatt QC. He indicated that the ‘but for’ provision was probably no more generous than the ‘arisen out of or was attributable to’ test, but it served the purpose of making clearer the intention of the attributability test.¹⁵ This provision extends the circumstances under which a causal connection to service can be established.

The ‘but for‘ test is a causal test, requiring a connection between the incident giving rise to the injury or disease and circumstances of service. It is not sufficient if service was merely the environment in which the incident occurred.¹⁶

The causal connection in the ‘but for’ test is a more direct causal link than the ‘attributable to’ test. The ‘changes in environment’ referred to in the provision could refer to social and other attributes of the situation in which the person was placed during service.¹⁷

In Holthouse v Repatriation Commission,¹⁸ Davies J held that the ‘but for’ test does no more than remove any distinction between an immediate cause or last link in a chain of causation and some preceding link but for which the immediate cause would not have become operative. The test does not abrogate the ordinary principles of causality or dispense with the requirement that defence service be a contributing cause of the incapacity or death.

Travelling to or from duty

When considering a journey when travelling away from the person’s place of duty, it is necessary to determine whether the person left that place upon ceasing duty.

It is also necessary to identify the start and end points of the particular journey. A journey is not completed until its final destination is reached whether this be a few minutes after commencement or many days such as occurs for example, if a member drives interstate for leave.

Issues to be considered may include:

• 
  if the journey was to a place for the purpose of performing duty or away from a place upon having ceased to perform duty;
  
• 
  if the member did not delay commencing the journey for a considerable period after ceasing to perform duty;
  
• 
  if the nature of the risk of sustaining injury or contracting a disease was not substantially changed or the nature of the risk was not substantially increased by the delay;
  
• 
  if the journey was by a route that was reasonably direct;
  
• 
  if the nature of the risk of sustaining injury or contracting a disease was not substantially changed or the nature of the risk was not substantially increased by that route;
  
• 
  if there was no substantial interruption in the journey; and
  
• 
  if the nature of the risk of sustaining injury or contracting a disease was not substantially changed or the nature of the risk was not substantially increased by that interruption.
  

Substantially increased risk of injury in journeys

Substantial delay

If there is a substantial delay before commencing the journey during which the accident happened, it must be assessed whether there was a substantially increased risk due to the delay in commencing the journey. An example of this might be where the traffic conditions were substantially worse at the time the journey occurred than they would have been had the journey occurred immediately upon ceasing duty.

Route that is not reasonably direct

If the route that is taken is not reasonably direct, it is necessary to assess:

• 
  whether there was an increased risk of the injury, disease or death; and
  
• 
  the extent of that risk,
  

by comparing the direct route with the route that was actually taken or proposed to be taken (if it was not completed due to the accident). In making that assessment the overall risk of the entirety of each journey is to be considered rather than an average of the risk per kilometre. Any uncompleted portion of the proposed journey is also to be taken into account in the assessment.

Substantial interruption to the journey

If there is a substantial interruption to a journey the question to be asked is whether by reason of the interruption the nature of the risk of injury on the part of the journey remaining after the interruption was substantially changed and the extent of that risk was substantially increased. The assessment of the risk must be made at the conclusion of the interruption and before the resumption of the journey.

Exclusions apply to specific journeys

Under the VEA, the exclusions relating to travel apply only for the purpose of the specific journey provisions referred to in s 8(1)(c), s 9(1)(c), s 70(5)(b), and s 70(5A)(b)—that is, travelling to or from duty. These exclusions do not apply to any other journeys that might be related to service.

Under the MRCA, the exclusions relating to travel apply not only to the specific travelling provisions in s 27(e) and s 28(1)(f), which concern travelling to or from a place for the purpose of undertaking duty, but also to any other provision in sections 27, 28, or 30 that, in a particular case, raises a connection between a peacetime service-related journey and injury, disease or death. The Note to s 35(1) of the MRCA says:

This section applies if the injury, disease or death is a service injury, disease or death because of the application of any of sections 27, 28, and 30 (not only paragraphs 27(e) and 28(1)(f)).

These exclusions apply only to peacetime service. Neither the journey provisions nor the specific journey-related exclusions apply to warlike or non-warlike service under the MRCA.

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