Opinion:
No. 1385
Subject:
Defence
defence: meaning of ‘on duty’: participation in function arranged for American Fleet: mounted paper-chase: voluntary parade: implications of repercussions for non-participation: relevant considerations
Author:
LATHAM John Greig
Key Legislation:
Defence Act 1903 s 57
Date:
01 April 1926
Client:
The Minister for Defence
Related Opinion:
Opinion text:

The Minister for Defence has forwarded for advice the following letter:

  • I should very much appreciate it if you would be good enough to give me your advice on the following matter which is dealt with in the attached file. I am called upon to decide whether or not a Staff Corps officer is entitled to compensation under the Defence Act in respect of an injury which he sustained while taking part in a function arranged for the American Fleet. I am very sympathetic with the case but find it difficult to determine the legal aspect of the issue under the Act and Regulations.
  • Section 57 of the Act dealing with the case reads as follows:
  • When any member of the Military Forces is killed on war service or on duty, or dies, or becomes incapacitated from earning his living, from wounds or disease contracted on war service or on duty provision shall be made for his widow and family or for himself, as the case may be, out of the Consolidated Revenue Fund at the prescribed rates.

    and the meaning of this term ‘on duty’ has been given to the Forces in an Instruction reading as follows:

    18(4) The expression ‘on duty’ in this and the next following instruction means while doing any act in obedience to the command of a military superior or any act required to be done by the Act or the A.M.H. or by the Army Act when on war service, or by any standing or other order issued by a military superior or any act which according to the custom of the Service, it is a duty to perform.

  • The matter has been before the Crown Solicitor who has advised that the question is really a question of fact for the decision of the Department.
  • The military members of the Military Board are unanimous in their opinion that according to the custom of the Service Lieut. D., who was the officer injured at the function, in taking part in the ride, did so in the course of his duty as a staff officer of the Permanent Forces, and they base their conclusion on the fact that the function was an official welcome to officers of the American Fleet and that it is the recognised duty of Staff Corps officers to take every opportunity of practising themselves in riding especially in view of the few opportunities that are available to officers of the Permanent Forces.
  • On the other hand, the Finance Member does not consider that the occasion of the injury warrants it being regarded as sustained on duty.
  • The function took the form of a mounted paper-chase organised by the Staff Corps Mess in Sydney and formed part of the official welcome to the American Fleet, the officers attending in uniform and riding government horses supplied for the occasion; but similar rides have been held apart from the occasion of the visit of that Fleet. The circumstances of the ride and the injury are related in the proceedings of the court of inquiry and you will notice in the file the different views which have been expressed.

The expression ‘on duty’ in section 57 of the Defence Act 1903–1918 is not defined by the Act, and its meaning cannot, in my opinion, be defined by regulations made under the Act or by instructions issued by any Military Authority.

In my opinion, in each case where any question arises as to whether a member was or was not on duty, its determination is dependent on the facts of the case.

I think, however, that the duty which must be looked for is more than moral duty. That is to say, a member would not necessarily be on duty when taking part in any function, participation in which was voluntary, simply because he was expected to do so. Thus, although a member is expected to keep himself physically fit, it does not follow that he is on duty at all times when he is engaging in pursuits to that end.

The fact that participation in any function (including a sports meeting or game) was voluntary would not, however, in my opinion, apart from other circumstances, affect the question as to whether or not a member was on duty. A member attending a voluntary parade or school of instruction would, no doubt, be on duty.

In Lieut. D.’s case, the function at which the injury was received was a Mounted Paper Chase arranged by the Staff Corps Officers’ Mess, Sydney, for the entertainment of the United States Battle Fleet. The Paper Chase was held with the permission of the Commandant of the 2nd Military District, and Lieut. D. attended in uniform and, presumably with authority, used an army remount.

It may be, therefore, that the Paper Chase could be regarded as a voluntary parade.

In determining that question consideration should, I think, be given to the further questions of the extent to which officers participating in the paper chase were subject to military discipline while the chase was in progress, and what penalties (if any), would have followed disobedience to, or failure to comply with, orders given by those in authority, or arbitrary withdrawal from the chase after its commencement, but before its conclusion.

I do not think the fact that, if Lieut. D. had refrained from taking part in the Paper Chase, his action would have been regarded as unsoldierlike, can be deemed to affect the question, except that, the function being one so closely allied to the training required by such officers, it might lend support to the view that the function was in the nature of a voluntary parade.

Otherwise, as his refraining would only tend to jeopardise his advancement in the services, it could only affect him personally and would not, in my opinion, support the contention that he was on duty when taking part in the paper chase.

As mentioned above, however, the question as to whether or not Lieut. D. was on duty is one of fact which I am unable to decide, and the opinions which I have expressed can do no more than serve as a guide to the determination of the question.

[Vol. 22, p. 545]


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