High Court reinstates important distinction between injury and disease in compensation case
May 18, 2016
Introduction and background
On 11 May 2016, the High Court of Australia considered the meaning of “injury (other than a disease)” under s4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’).
Mr May’s claim arose following the onset of low immunity, fatigue, illnesses, and dizziness which he alleged arose as a consequence of vaccinations received shortly after he enlisted in the Royal Australian Air Force (‘RAAF’). He claimed compensation under the SRC Act.
The Military Rehabilitation and Compensation Commission (‘MRCC’) denied liability on the basis that there was insufficient evidence to establish that Mr May had suffered an injury. The Administrative Appeals Tribunal (‘Tribunal’) affirmed the decision of the MRCC. Mr May unsuccessfully appealed to Buchanan J of the Federal Court; however, successfully appealed to the Full Court of the Federal Court constituted of Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ.
French CJ, Kiefel, Gageler, Nettle, and Gordon JJ of the High Court unanimously upheld MRCC’s appeal.
At the time Mr May made his claim, an “injury” was defined in s4(1) of the SRC Act to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, that employment).
The application before the Tribunal
The Tribunal observed that in Kennedy Cleaning Services Pty Ltd v Petkoska (‘Kennedy Cleaning’) Gleeson CJ and Kirby J of the High Court recognised that previous Australian decisions held that an injury required a “sudden or identifiable physiological change”. The Tribunal accepted that an injury which occurred in the course of an employee’s employment was ordinarily compensable without proof of a specific causal connection with employment. Rather, the question for determination in the light of Mr May’s assertion that he suffered injury in the course of employment by the RAAF was assessed by the Tribunal to be whether the evidence established some sudden or identifiable physiological change. The Tribunal considered that, to establish injury, it was not sufficient to find that a person merely suffered symptoms in the course of his or her employment and that the person was not a malingerer, in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms, or a psychiatric disorder to account for them.
Having reviewed the expert evidence, the Tribunal found that:
(a) there was a temporal relationship between the vaccinations and symptoms (which allegedly included swelling of the tongue, dizziness, nausea and diarrhoea); however
(b) despite having been assessed by a significant number of specialists, there was no medical explanation for MrMay’s “subjective description of a collection of symptoms”.
The Tribunal found that there was no objective evidence of a swollen tongue or dizziness. While the Tribunal accepted that there was objective evidence of diarrhoea and upper respiratory infections (which were treated and subsequently resolved), the expert evidence did not establish a connection between those conditions and the vaccinations. Further, the Tribunal found that those conditions were not the cause of his current incapacity.
Although the Tribunal accepted that Mr May was significantly disabled from what it “loosely described” as “vertigo” it held that the medical evidence indicated a lack of pathology consistent with Mr May’s symptoms, resulting in an inability to make a diagnosis. Thus, it found that in the absence of objective evidence of “vertigo” developing in the period immediately following administration of the vaccinations and no objective evidence to explain and relate the symptoms which he had since experienced to employment, the Tribunal was not satisfied that Mr May had suffered a physical injury attributable to the vaccinations. The Tribunal accordingly found that there was insufficient evidence to establish that Mr May suffered such an injury as defined in s4(1) of the SRC Act in the course of his employment.
The Federal Court
Mr May appealed from the Tribunal’s decision to the Federal Court, but he was unsuccessful in that appeal. Buchanan J noted that Mr May’s “thesis” (that he suffered an injury as a result of the vaccinations), which explained his ongoing difficulties, was considered by the Tribunal but had very little support in the medical evidence and was contradicted by the Tribunal’s own evaluation of that medical evidence. Buchanan J concluded that there was no legal error arising from any wrongly decided questions of law or otherwise which vitiated the Tribunal’s decision.
Mr May successfully appealed to the Full Court of the Federal Court. The Full Court held that the Tribunal had erred in:
(a) applying the phrase “sudden or identifiable physiological change” to establish whether Mr May suffered an “injury” for the purposes of the SRC Act. The Full Court held that phrase, as used in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning, was not definitional and that the Tribunal had erred to the extent that it had sought to substitute the statutory concept of “injury” under the SRC Act with the phrase, which was not included in the Act, and by necessary implication to exclude Mr May’s “vertigo”, as well as the other physiological changes he reported;
(b) assessing on the basis that there was a requirement for “diagnosis or medically ascertained cause”, and that even if there was a need for “physiological evidence, pathology or a known diagnosis”, the Tribunal had misunderstood its statutory task; and
(c) erroneously requiring a causal link between Mr May’s vertigo and the vaccinations he received, when a temporal connection was all that was required.
The Full Court considered that the question posed by the statutory concept of “injury” was “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind”. In doing so, the Full Court merged the concepts of “disease” and “injury” in the definition. Accordingly, the Full Court set aside the judgment of the Federal Court and the decision of the Tribunal, and remitted the proceedings to the Tribunal for determination according to law.
The High Court
MRCC obtained an order for special leave to appeal to the High Court on 13 November 2015 and the appeal was heard on 3 March 2016. The appeal considered the proper construction of the phrase “injury (other than a disease)” in paragraph (b) of the definition of “injury” in s4(1) of the SRC Act.
The High Court unanimously allowed MRCC’s appeal, reinstating the decision of the Tribunal. A joint judgment was delivered by French CJ, Kiefel, Nettle and Gordon JJ. A separate judgment was delivered by Gageler J who agreed with the orders proposed in the joint judgment.
What is an “injury (other than a disease)”?
The joint judges held that there was an important distinction between the two limbs of the definition of “injury”, which comprised “separate but related bases of liability”. The “injury (other than a disease)” limb of the definition was said to contain the following aspects:
(a) if an employee established that he or she suffered a “disease” within paragraph (a) of the definition, there is no need to consider “injury (other than a disease)” in paragraph (b);
(b) “injury (other than a disease)” suffered by an employee must be “a physical or mental injury arising out of, or in the course of, the employee’s employment”. That is, the physical or mental injury has to have a causal or temporal connection with the employee’s employment; and
(c) the need for a causal or temporal connection in respect of a “physical or mental injury” in paragraph (b) directly raises the question – what does “injury” mean in that paragraph?
In answer to that question, the joint judges adopted the explanation given by Gleeson CJ and Kirby J in Kennedy Cleaning that if “something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word”.
Thus, the joint judges held that:
(a) the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall and a lesion to the brain, are all examples of an “injury” in the primary sense;
(b) although a physiological change could be described in a number of ways, in that it might be “sudden and ascertainable” or “dramatic” or the employee’s condition might be a “disturbance of the normal physiological state”, it is the nature and incidents of that physiological change remains central to satisfying the definition.
Gageler J agreed that “injury” is used in paragraph (b) in its ordinary sense. His Honour ventured that, used in the workers compensation legislative context, injury is not confined to “getting hurt” but involves something more than “becoming sick”. Gageler J stated:
An injury, it has long been repeatedly explained, is some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not “sudden”, is at least “identifiable”.
What are the evidentiary requirements to establish an “injury (other than a disease)”?
The joint judges rejected any conclusion by the Full Court that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to establish the existence of a physical or mental “injury” in the primary sense of that word. The joint judges held that to establish an “injury (other than a disease)” necessarily required consideration of the “precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change”.
The joint judges explained:
[T]he proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the “injury (other than a disease)” limb of the definition of “injury”, unless that employee can satisfy the tribunal of fact that he or she has suffered an “injury” (in the primary sense of the word), s4 of the Act will not be engaged.
While acknowledging that the evidence would vary from case to case and, where appropriate, may take into account common sense inferences drawn from a sequence of events, the joint judges held that there must be more than an assertion by an employee that he or she feels unwell.
Applying that reasoning to Mr May’s circumstances, the joint judges concluded that, although Mr May asserted that he felt unwell, the Tribunal was correct in not being satisfied on the evidence (lay and medical) that there was an “injury” in the primary sense of that word. Gageler J also considered that “[a]t least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction” and that required a sudden or identifiable physiological change in the normal functioning of the body or its organs. It followed that the Tribunal displayed no error despite accepting that Mr May experienced debilitating dizziness, because it was, correctly in the light of the expert evidence, not satisfied that the required connection to employment was established.
The High Court has essentially endorsed the orthodox approach adopted by the Tribunal to determine whether Mr May suffered an “injury (other than a disease)”, or “injury” in the primary sense, and also the manner in which the Tribunal concluded, on the evidence and despite having accepted his complaint of disabling symptoms of dizziness, that Mr May had failed to establish his case.
To a large degree, the High Court has simply “restored the order” in terms of what was previously understood to be an “injury (other than a disease)” in paragraph (b) of the definition of “injury” in s4(1) of the SRC Act as historically applied by the Tribunal. Certainly, any confusion that arose following the Full Court’s decision has been resolved.
Also, the High Court’s decision reinstates the distinction between a “disease” and an “injury (other than a disease)” under the Act, which had been eroded by the Full Court’s decision and, in particular, would have robbed the “disease” limb of any utility.
What is also clear from the High Court’s decision is that mere complaint of physical symptoms, even if it is accepted that those symptoms are experienced by an employee, will not of itself be sufficient to establish an “injury (other than a disease)” under paragraph (b) of the definition of “injury” under s4(1) of the SRC Act. Rather, it is necessary to undertake a factual analysis of the circumstances to assess whether the condition is a “disease” or an “injury (other than a disease)” and whether it has the requisite connection to employment so as to be compensable under the SRC Act.
Authored by Brendan O’Brien, Partner and Emily Baggett, Senior Associate, Sydney.
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