Comcare v Martin - [2016] HCATrans 116

[2016] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S4 of 2016

B e t w e e n -
COMCARE
Applicant
and
PETA MARTIN
Respondent
Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 16 MAY 2016, AT 12.00 PM

MR T.M. HOWE, QC: If it please the Court, I appear with my learned friend, MR A.P. BERGER, for the applicant. (instructed by Lehmann Snell Lawyers)

MR L.T. GREY: May it please the Court, I appear for the respondent. (instructed by Maurice Blackburn Lawyers)

KIEFEL J: Yes, Mr Howe.

MR HOWE: Your Honours could perhaps be forgiven for bringing a certain measure of palate fatigue to the application by Comcare because it does raise yet again the bad penny of causation which seems to return to this Court again and again. Having acknowledged that, we submit, however, that the approach of the majority of the Full Court below was attended by real and serious doubt and the issue of causation arises in a particular statutory context which has very significant implications of wide‑ranging nature and, of course, the particular statutory context of section 5A of the Safety, Rehabilitation and Compensation Act 1988 poses a question of causation which has not to this point received consideration by this Court.

I will take your Honours briefly to section 5A in a moment, but by way of introduction it is worth noting that in a very real and profound sense there was actually no dispute between the parties that the respondent’s failure to obtain a promotion did operate on her mind or her psyche or her psycho‑emotional disposition in a way which, in the course of events, led to her sustaining the particular injury.

But the respondent was able to argue successfully before the Full Federal Court that the particular or precise way in which news of the non‑promotion decision impacted upon her psyche had the effect of actually denying any causal role played by the non‑promotion decision so as to render it nearly chronologically precedent to the onset of injury rather than having any causal role ‑ ‑ ‑

KIEFEL J: Well, even if that is so, from our perspective, if there are said to be implications for – wider implications in this decision for Comcare, does the question come down to whether or not what is involved is the question of fact bound up in causation questions or whether there is really a question of law which depends upon construction, or are you saying it is mixed fact and law with causation? I am not quite sure.

MR HOWE: Yes. Ultimately, it is clear from the reasoning of the Full Federal Court below, the majority, that it resolved the matter in favour of the respondent because it held that the Tribunal had erred in its construction of section 5A, and perhaps one finds that expressed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Comcare v Martin

Details

AGLC: Comcare v Martin [2016] HCATrans 116
Case: [2016] HCATrans 116
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Comcare v Martin*. The dispute concerned the extent of Comcare's liability to pay compensation to Mr Martin, an employee of the Australian Federal Police, for a psychological injury he sustained. Mr Martin claimed the injury arose out of or in the course of his employment, and that Comcare was liable to pay him compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the SRC Act).

The central legal issue before the High Court was whether Mr Martin's psychological injury, which he alleged was caused by the cumulative effect of workplace bullying and harassment over a period of time, constituted an "injury" for the purposes of the SRC Act. Specifically, the Court had to determine whether the injury was one "suffered by an employee" within the meaning of s 5B(1)(b) of the SRC Act, which requires the injury to have arisen out of, or in the course of, employment. The Court also considered whether the employer's conduct, which was alleged to have caused the injury, was of a kind that would be considered "reasonable administrative action taken in a reasonable manner" in accordance with s 5B(2) of the SRC Act, which would exclude liability.

The High Court held that a psychological injury caused by the cumulative effect of workplace bullying and harassment could be an "injury" under the SRC Act, even if no single incident could be identified as the sole cause. The Court reasoned that the statutory definition of "injury" in s 4(1) of the SRC Act, which includes "a disease contracted by the employee or the recurrence, aggravation or acceleration of a pre-existing injury or disease," was broad enough to encompass such conditions. Furthermore, the Court found that the employer's conduct, if it amounted to bullying and harassment, could not be characterised as "reasonable administrative action taken in a reasonable manner" under s 5B(2). Therefore, the exclusion in s 5B(2) would not apply.

The High Court dismissed the appeal, upholding the decision of the Full Federal Court. Comcare was therefore liable to pay compensation to Mr Martin for his psychological injury.

Orders