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Are Legal Remedies Available After an ADF Member Suicide?

Military Compensation Lawyer Tim White outlines the remedies that are available to those left behind when a current or former ADF member takes their own life as a result of PTSD or another psychological condition induced by their military service.


Having represented a large number of ADF members as a lawyer I am acutely aware of the tragically high number of ADF members that take their own lives every year and the devastating impact this has on families. This is a very difficult, confronting and complex topic, but for those surviving family members it is important to know that there are legal remedies available. The following blog will briefly outline these remedies, for further assistance or information do not hesitate to contact my military compensation team directly for a free initial interview.

There are an increasing number of defence force members and veterans who are being diagnosed with post traumatic stress disorder (PTSD), adjustment disorders, depression, anxiety and other psychological conditions. Correlated with this rise is the growing number of suicides reported amongst current and former serving defence members as a consequence of suffering from significant psychological conditions.

For the majority of these individuals the primary cause of their psychological condition or conditions is the traumatic experience or experiences  they have endured whilst serving their country either abroad or within Australia.  Despite the medical assistance and treatment these members may receive, it does not seem to be reducing the suicide numbers of defence members.

What are some of the reported statistics?

ADF member suicide has become such a prevalent issue that a number of registries have been established to try and more accurately document the frequency with which suicides are occurring.

– The Facebook page of Australian Veterans Suicide Register estimates that since 1986 approximately 200 ex-servicemen and veterans have taken their own life.

– The Australian Defence Force (ADF) has indicated it is compiling its own database to record suicide figures among serving and former serving personnel, dating as far back as the Vietnam War.

– A Senate inquiry into veteran’s mental health issues occurred in late 2015, as a result of a motion put forward by the Tasmanian Senator Peter Whish-Wilson in 2015.

If an ADF member or former member commits suicide can the surviving spouse or family member claim compensation?

The short answer is yes, but it will depend on the members individual circumstances.

This is a complex question and depends on a number of factors.

– When the defence force member served in the military;

– Where that service occurred;

– What event or events they were exposed to whilst serving; and

– If they had been diagnosed with any psychological condition prior to their death.

These are complex factual considerations and need to be looked at in detail before any assessment can be made about the likelihood of any compensation being paid by the Department of Veteran Affairs (DVA). A further critical factor that must exist for compensation to be paid in these circumstances is that the spouse or family member must have been financially dependent (totally or in part) on the deceased.

What is the relevant legislation?

There are a number of Acts that could potentially apply in determining whether or not compensation is payable. They include the Veterans’ Entitlement Act (1986) (VEA), the Safety, Rehabilitation and Compensation Act (1988) (SRCA) and the Military Rehabilitation Compensation Act (2004) (MRCA).  Each family or person’s circumstances will differ, however, the requirements to be considered in order to determine whether or not compensation is payable is contained within these Acts and they must be closely considered when submitting a claim. Your lawyer will be able to simplify this and know which laws are directly relevant.

What are the requirements under the SRCA 1988?

This Act applies to military members that have served from or after December 1988 until the end of June 2004.  Essentially, the traumatic event or events that gave rise to the psychological condition affecting the defence member need to have occurred during this period (i.e.; broadly 1988 to 2004) for this Act to apply.

Section 17 of the SRCA specifically provides that, “this section applies where an injury to an employee results in death.”  Clearly this section of the Act contemplates compensation being paid in circumstances where an employee or a defence force member is killed during the course of their employment or as a consequence of their employment.

Section 17 (2) is also relevant as it stipulates compensation is not payable unless the employee dies leaving a dependant or dependants. A dependant is defined as a spouse, father, mother, and son, daughter who is economically reliant on the deceased prior to his or her death.  Accordingly, in order to make a claim you must be in this dependant class of persons.

A further important section of SRCA is Section 14(2).  It provides that, “compensation is not payable in respect of an injury that is intentionally self-inflicted.” This section has been subject to a number of cases where the criteria for “intentionally self-inflicted” has been closely considered and interpreted. This has obvious application to a claim for compensation arising from a person committing suicide.

It has been argued previously by the Department for Veteran Affairs (DVA) that suicide is an intentionally self-inflicted act and as a consequence of Section 14 (2) no compensation is payable to a surviving spouse or dependant.  However, this argument is not insurmountable and a very close examination of the specific circumstances of the individual involved must be undertaken. This involves considering a broad range of matters, especially the medical evidence that exists.

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Recent cases considering whether compensation is payable following suicide of a Commonwealth employee

A recent Administrative Appeals Tribunal (AAT) decision of Sadlo v  Comcare [2005] AATA 1006, decided that the spouse of a Commonwealth employee who committed suicide was entitled to a dependency payment.  The facts of that case involved a Commonwealth employee whose employment had aggravated his underlying depression condition, but he had made no work related claim for compensation prior to his death. Comcare, which was the insurer that was handling the claim, accepted that the deceased’s employment had aggravated his psychological condition.

However, Comcare sought to rely upon Section 14 (2) to argue that the spouse was not entitled to any compensation as a result of the death of the employee. Comcare argued that as the injury or death was intentionally self-inflicted, in accordance with Section 14 (2), there was no compensation payable to the surviving spouse (the dependant).

The medical evidence from a number of psychiatrists was very important in considering whether or not the act of the employee killing himself was an intentional one. In this case the employee took his own life by self-inflicted carbon monoxide poising.

The Tribunal considered a similar section contained in the legislation in New South Wales, which applies to work injuries, namely Section 14 (3) of the Workers Compensation Act 1987.  In the New South Wales Act it specifically provides that compensation is not payable in respect of death of a worker by an intentional self-inflicted injury.  The Tribunal here made specific reference to the fact that Section 14 (2) of the SRCA makes no reference to death of a worker being intentionally self-inflicted, rather it refers only to an injury.

The Tribunal concluded that it was not the intention to exclude compensation to a dependant of a deceased worker who voluntarily took his or her own life.  The Tribunal ordered that compensation was payable to the surviving spouse, as it was satisfied that the aggravation of the depression suffered by the employee caused his death. The Tribunal reached that view even though it accepted that he took his life voluntarily and intentionally.  The Tribunal found that the proximate cause of his death was the aggravation of his depression, which was caused by his work.  It was found that there was no break in the chain of causation between his work related injury (i.e. the aggravation of his depression) and his death.  In this case the spouse was awarded compensation.

There are a number of other similar cases that have considered whether or not compensation is payable to a surviving spouse, where the Commonwealth employee has taken their own life; and in particular I refer to:

1. Re Pamela McLaren & Comcare [1992] AATA 2002;

2. Pearce & Comcare [1998] AATA 1036.

Is compensation payable under Military Rehabilitation and Compensation Act (MRCA)?

As indicated above, the legislation which applies to an individual’s circumstances is determined by number of critical factors.  In short, if a member has been exposed to a traumatic event, that results in a psychological condition, on or after July 2004, it is most likely that the MRCA will apply to their circumstances.

The criteria under the MRCA differ slightly from that contained in the SRCA.

The relevant sections of the MRCA are particularly Section 31 and Section 32.

Section 32 has a similar exclusion to the SRCA, namely that compensation is not payable if the injury or disease was intentionally self-inflicted.  This is very similar wording to that which is contained in Section 14 (2) of the SRCA.

I am not currently aware of any matters that have gone to Trial at the AAT that have considered the application of Section 32 of the MRCA. However, given the wording is very similar to that contained in the SRCA, you would expect it to be applied in a manner similar to that which has occurred in the decision of Sadlo (discussed above).

There is however a further complicating factor with the MRCA, namely that a member must also fulfil the requirements set out in the Statement of Principles (SOP), relevant to the diagnosed psychological medical condition.  A SOP is in effect part of the legislation, and is established by the Repatriation Medical Authority (RMA). For any relevant medical condition the applicable SOP must also be fulfilled in order for that medical condition to be deemed to be caused by military service.

Incredibly there is an applicable SOP for Suicide and Attempted Suicide.  It has been most recently modified in March 2010 and can be accessed here.

In short, in order to fulfill the SOP dealing with suicide a member is likely to need to have been exposed to a severe stressor within two years prior to his or her death or is suffering a specified psychiatric disorder prior to his or her death or having a medical illness which resulted in a severe level of disability at the time of his or her death.

This is not an exhaustive list of the type of factors that must be fulfilled in the SOP but it gives some indication of the requirements that need to be met for a suicide or attempted suicide to be found to be service caused. A critical aspect in fulfilling the SOP is obtaining precise medical evidence dealing with these considerations from a well qualified psychiatrist or psychologist. Again, the individual circumstances of the serving member and what he or she experienced during operational duties or whilst serving in Australia must be examined carefully as do the medical records of the member.

Similarly to the SRCA, there is a restriction on who can make a claim for compensation and again it is limited to individuals deemed to be dependant such as a spouse or child.

Conclusion

Sadly the rate of reported suicides by current serving and former serving defence force members is on the rise. Of course there is never adequate compensation payable to a spouse or a family member when such a tragic incident occurs, but there are avenues of compensation available to surviving dependant family members.

As outlined above, there is a very detailed and strict criteria that needs to be fulfilled before any compensation is payable. The process involves complex legal issues and concepts that are still developing. Seeking legal advice is not often the first thought following such a tragic event, however, being aware that considerable compensation may be available is important.

It is important to remember that the suicide does not necessarily need to have occurred whilst the member was still employed by the ADF and nor does it have to of occurred whilst the member was ‘at work’. I have assisted many spouses and family members with dependency claims, and am well aware of all relevant issues involved. First and foremost I am aware of the stress and devastation these type of tragic events entail and accordingly my focus is on trying to reach a quick resolution for the family with the DVA. Please contact the TGB Military Compensation team in order to better understand whether we are able to assist you.

For further information or assistance contact Tim for a free initial interview regarding your Military Compensation claim.

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