Introduction
The current Act recognises that there needs to be a relationship between Service and disablement or death to warrant eligibility for entitlements. Prior to 1974, disablements or death attributable to what we now refer to as “non-operational service” were covered by the 1954 Act, although the reverse onus principle did not apply as it did to ‘war or emergency’ service. After the introduction of ACC in 1974, Service personnel who developed impairments due to non-operational service were excluded from coverage under the War Pensions Act. The intent was that these people would be covered under the new ACC legislation. However, ACC only covers accidental injuries and certain types of disease and gradual process, consequently removing coverage for Service personnel who die or develop disablements on non-operations that are not covered by ACC legislation. This potentially includes a number of diseases and psychological conditions.
The issues around proving linkage of impairment with non-operational service can be addressed through better record keeping and information sharing between VANZ and the other elements of the NZDF, such as Personnel Risk Management and Medical.
NZDF recommendation
The NZDF recommends that the development new Act examine the appropriateness of providing coverage to an ACC standard for Service personnel who die or develop disablements that are aggravated by or attributable to non-operational service, which are not covered by ACC legislation. The reverse onus for qualifying operations should be maintained. The possible limits of this are where military discipline has been breached without operational justification, though it must be acknowledged that ACC compensation is denied only when “repugnant to justice”.
Question 15
What are your views on the interpretation of “attributable to service” by the Court in Nixon?
In the case of Nixon v War Pensions Appeal Board, McGechan J held that the issue of whether a disablement is attributable to service must be approached in a broad and commonsense way, sympathetic to the spirit and the benevolent purposes of the legislation. This means that attributable to service in the current legislation includes disablement not only from conduct forming a matter of actual military duty under orders, but also (at least) optional activity which the Army encouraged or at least facilitated, as a perceived useful adjunct to military service. The Crown did not appeal the decision and has (of course) regarded the decision as binding in respect of other cases of essentially the same or similar nature. NZDF would not expect that new legislation would reverse the effect this decision unless it was decided by Government that a stricter or more prescriptive definition of attributable service be included in the new Act. The particular circumstances of Nixon (i.e. smoking cigarettes under the tacit encouragement of the Army) needs to be considered carefully. NZDF now applies policies directed toward maintaining the health and safety of Service members that were unheard of in World War II.
Question 16
Do you think that all injuries occurring while a person is overseas on appropriate service should be covered, irrespective of whether that injury is related to the service or not?
The answer to this question must be determined at a Government level. If the Act is intended to recognise that qualifying operational service is different and deserving of special entitlement then the reverse onus approach to determining which injuries could have cover should be retained.
While the NZDF realises that there must be a balance between fairness to the Service member and fairness to the tax-payer, we also acknowledge that the criteria put out in response to question 10 will be applicable in determining qualifying service, whether in New Zealand or abroad.
Question 16 Personnel Feedback
Focus Groups overwhelmingly felt that everything occurring on operations should be covered, with the possible inclusion of Pre-Deployment Training (PDT). The ‘gray area’ is around self-inflicted injuries and the debate on whether they can be attributed to the psychological stress of the operational environment or not.
Question 17
What about injuries or disease arising from activities that are not part of service duties?
NZDF supports retention of the beneficial nature of the 1954 legislation and the preservation of the reverse onus of proof for qualifying operational service. As was illustrated by the Nixon case, this may include activities which are not immediately regarded as being part of service duty.
Question 17 Personnel Feedback
Focus Groups agreed that all impairments suffered on qualifying operational service should be covered. As explained during one focus group, “If you roll your ankle on the sports field, it’s not any different than when you roll your ankle on patrol, you’re still away and you’ve still be sent there by the government”.
Question 18
Should there be any statutory exclusions, for example injuries or disease attributable to or aggravated by sporting activities or alcohol consumption while away on service?
Sporting injuries and injuries attributable to drug or alcohol abuse engage different considerations. Since sport is regarded as a fundamental Service activity which contributes to effectiveness through the building of unit cohesion and fitness, NZDF considers that there are sound arguments for such injuries and illnesses to be included, provided other applicable criteria are met. Injuries resulting from substance abuse, on the other hand, arise from activities which are not related to duty or efficient service. It may be conceivable, however, that injustice could arise from an overly strict exclusion policy and NZDF therefore considers that some degree of flexibility may be appropriate. Other areas of compensation law in New Zealand may provide useful guidance, such as the test set out in the Injury Prevention, Rehabilitation, and Compensation Act 2001, namely that compensation should be payable unless in the circumstances it would be “repugnant to justice” to do so.
Question 18 Personnel Feedback
Focus Groups As above, the majority of participants felt that any impairment suffered on qualifying operations should be eligible for coverage due to the difficulty of discerning between injuries caused by irresponsibility and injuries motivated by psychological stress. One participant summed it up by saying, “I think that fundamentally, it makes no difference if it’s an alcohol-related offence, or another type of injury because we’ve sent someone overseas and we want them for their mental health and well-being so we want them to take some rest and relaxation, it makes no difference if they get injured in a sport which they consider relaxation or an incident in a bar, and it should make no difference in the support we give them down the line because we need them to rest so that they can continue the hard work we expect of them three months down the track”.
Question 19
Should injury sustained during travel to and from a qualifying deployment be covered?
Yes, as it is a required component of supporting and participating in a qualifying operation.
Question 19 Personnel Feedback
Focus Groups explained that travel to and from an area of operation is as much a part of the deployment as any other aspect of the deployment, and should therefore be equally covered. Some Service members argued that coverage should begin from the initiation of Pre-Deployment Training.
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