ADMINISTRATIVE LAW – whether injury was contributed to or aggravated in a material degree by employment under s4(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth)– effect of word “material” upon definition of “disease” – requirements before remitting matter to Tribunal.
STATUTORY INTERPRETATION – resort to textual material – “material” intended to require something more than “a mere contributing factor”.
Macquarie Dictionary Second Reading Speech, House of Representatives, Debates, 27 April 1988, p 2191 Shorter Oxford Dictionary
COMCARE v SHAFFAAT ALI SAHU-KHAN
No SAD 110 of 2006
FINN J 19 JANUARY 2007 ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 110 OF 2006
BETWEEN:
COMCARE Applicant
AND:
SHAFFAAT ALI SAHU-KHAN Respondent
JUDGE:
FINN J
DATE OF ORDER:
19 JANUARY 2007
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 110 OF 2006
BETWEEN:
COMCARE Applicant
AND:
SHAFFAAT ALI SAHU-KHAN Respondent
JUDGE:
FINN J
DATE:
19 JANUARY 2007
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The short issue in this appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is what is meant by the phrase “in a material degree” in the definition of disease in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). That provision defines “disease” to mean any ailment or aggravation of any ailment suffered by an employee “that was contributed to in a material degree by the employee’s employment by the Commonwealth”.
BACKGROUND
Mr Sahu-Khan was employed by the Commonwealth Serum Laboratories as a medical sales representative from 1971 to his retirement in September 2000. His employment involved visiting doctors and pharmacists to advise them of new products and required him to carry a detailing case that weighed approximately 10 kg. He first experienced pain in his left shoulder in 1996/1997 and soon developed pain in the right shoulder. He sought medical assistance in 1998. He subsequently claimed he sustained his shoulder injuries as a result of the repetitive lifting of heavy weights focussing particularly on the daily lifting of the detailing case. A claim for compensation was lodged in December 1999.
It was common ground…
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.
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Details
AGLC
Comcare v Sahu-Khan [2007] FCA 15
Case
[2007] FCA 15
Decision Date
CaseChat Overview and Summary
In this case, the Full Federal Court of Australia was asked to review a decision made by the Administrative Appeals Tribunal (AAT) regarding the interpretation of the phrase "contributed to in a material degree" in the definition of "disease" in the Safety, Rehabilitation and Compensation Act 1988 (Cth). The applicant, Mr Sahu-Khan, sought to claim compensation for a shoulder condition he alleged was caused by the repetitive lifting of heavy weights required by his employment as a medical sales representative. The primary issue before the court was whether Mr Sahu-Khan's employment had materially contributed to the condition of his shoulders, which was accepted to be a disease.
The court examined the evidence presented to the AAT, particularly the medical evidence from Dr Michael Hayes, an orthopaedic surgeon, who testified on Mr Sahu-Khan’s behalf. Dr Hayes concluded that the repetitive lifting of the detailing case, weighing approximately 10 kg, was a significant contributing factor to Mr Sahu-Khan's shoulder injuries. The AAT had rejected the contrary view of a medical expert called by Comcare. The court also noted the Tribunal's rejection of the view that Mr Sahu-Khan's activities at work may have accelerated degenerative processes already in train, as expressed by a third medical expert.
In its reasoning, the court cited previous cases to clarify the meaning of "contributed to in a material degree". It held that the contribution did not need to be the sole or primary factor but had to be significant enough to establish a causal link on the balance of probabilities. The court found that the AAT had correctly applied this standard in concluding that Mr Sahu-Khan's employment had materially contributed to his shoulder condition. The court dismissed the appeal and ordered that Mr Sahu-Khan pay the respondent's costs of the application.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Background
Background to the litigation
The short issue in this appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is what is meant by the phrase “in a material degree” in the definition of disease in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). That provision defines “disease” to mean any ailment or aggravation of any ailment suffered by an employee “that was contributed to in a material degree by the employee’s employment by the Commonwealth”.BACKGROUND Mr Sahu-Khan was employed by the Commonwealth Serum Laboratories as a medical sales representative from 1971 to his retirement in September 2000. His employment involved visiting doctors and pharmacists to advise them of new products and required him to carry a detailing case that weighed approximately 10 kg. He first experienced pain in his left shoulder in 1996/1997 and soon developed pain in the right shoulder. He sought medical assistance in 1998. He subsequently claimed he sustained his shoulder injuries as a result of the repetitive lifting of heavy weights focussing particularly on the daily lifting of the detailing case. A claim for compensation was lodged in December 1999. It was common ground before the Tribunal that the injury from which the respondent suffered was a disease. What was in issue was whether the condition was contributed to or aggravated in a material degree by his employment. EVIDENCE BEFORE THE TRIBUNAL The Tribunal received evidence both from Mr Sahu-Khan and from three medical experts. For present purposes the only relevant medical evidence was that of Dr Michael Hayes, an orthopaedic surgeon, who gave evidence on Mr Sahu-Khan’s behalf. The Tribunal rejected the evidence of a medical expert called by Comcare who was of the view that the respondent’s condition was not work-related. The evidence of a third medical expert who was not called by Comcare was to the effect that the respondent’s activities at work may have accelerated degenerative processes already in train. He did not regard the employment as having been a significant aggravating factor. The Tribunal appears not to have given weight to this evidence. Dr Hayes first saw the respondent in July 2000 and provided two reports as to his medical condition. In his first report in July 2000, Dr Hayes expressed the view that Mr Sahu-Khan’s symptoms were related to his work requirements, a view confirmed in his second report in 2005. In his oral evidence to the Tribunal he considered other relevant matters to which regard should be had were the duration of the period of activities that may have caused the condition, as well as the genetic background. Dr Hayes accepted that there would be an element of natural degeneration for ageing in the respondent’s case. The Tribunal summarised Dr Hayes’ opinion as follows:“35.Dr Hayes expressed the view that carrying a heavy briefcase throughout your working life also causes stress on the shoulder that could lead to the type of rotator cuff injury that has occurred in this case.36.Dr Hayes was of the opinion that when people are regularly abducting their arm above a certain level they are at high risk of shoulder problems. He did not accept the position put by Dr Awerbuch [a rheumatologist called by Comcare] that a person necessarily had to work consistently above shoulder level to develop shoulder problems.37.When asked whether the subacromial spurs that were present in this case could have developed because of repetitive use rather than being a product of long-term degenerative arthritis, his response was “I think there is a combination of both plus a genetic predisposition. So it’s a multifactorial thing”.THE TRIBUNAL’S REASONS
Evidence
Evidence Before The Court
It was common ground before the Tribunal that the injury from which the respondent suffered was a disease. What was in issue was whether the condition was contributed to or aggravated in a material degree by his employment. EVIDENCE BEFORE THE TRIBUNAL The Tribunal received evidence both from Mr Sahu-Khan and from three medical experts. For present purposes the only relevant medical evidence was that of Dr Michael Hayes, an orthopaedic surgeon, who gave evidence on Mr Sahu-Khan’s behalf. The Tribunal rejected the evidence of a medical expert called by Comcare who was of the view that the respondent’s condition was not work-related. The evidence of a third medical expert who was not called by Comcare was to the effect that the respondent’s activities at work may have accelerated degenerative processes already in train. He did not regard the employment as having been a significant aggravating factor. The Tribunal appears not to have given weight to this evidence. Dr Hayes first saw the respondent in July 2000 and provided two reports as to his medical condition. In his first report in July 2000, Dr Hayes expressed the view that Mr Sahu-Khan’s symptoms were related to his work requirements, a view confirmed in his second report in 2005. In his oral evidence to the Tribunal he considered other relevant matters to which regard should be had were the duration of the period of activities that may have caused the condition, as well as the genetic background. Dr Hayes accepted that there would be an element of natural degeneration for ageing in the respondent’s case. The Tribunal summarised Dr Hayes’ opinion as follows:“35.Dr Hayes expressed the view that carrying a heavy briefcase throughout your working life also causes stress on the shoulder that could lead to the type of rotator cuff injury that has occurred in this case.36.Dr Hayes was of the opinion that when people are regularly abducting their arm above a certain level they are at high risk of shoulder problems. He did not accept the position put by Dr Awerbuch [a rheumatologist called by Comcare] that a person necessarily had to work consistently above shoulder level to develop shoulder problems.37.When asked whether the subacromial spurs that were present in this case could have developed because of repetitive use rather than being a product of long-term degenerative arthritis, his response was “I think there is a combination of both plus a genetic predisposition. So it’s a multifactorial thing”.THE TRIBUNAL’S REASONS Given the issue in this application it is necessary to set out verbatim the Tribunal’s formulation of the issue before it, the approach it took and the conclusion it reached. “49.In this instance it is common ground that the injury from which the applicant suffers is a disease. The issue to determine under the 1988 Act is whether this condition was contributed to or aggravated in a material degree by his employment.50.To establish a nexus with employment the applicant must establish that the bilateral shoulder condition from which he suffers is either an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment. There has been considerable previous discussion as to what is meant by the concept of ‘contributed to in a material degree’.51.In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 [‘Treloar’] in discussing the use of the word ‘material’ for the purposes of the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act) the Full Federal Court said at 323:‘… the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the conditions complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once a link is established, however, it matters not that the contribution be large or small.’52.The approach in Treloar’s case has been expressly adopted in subsequent cases under the 1988 Act, for instance in Suters v Australian Postal Corporation (1992) 28 ALD 320 at 331 Ryan J commented:‘… Although it is true that Treloar’s case was expressly limited to a consideration of the 1971 Act, in which the word “material” did not appear, the case none the less contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it …’53.The concept of the employment ‘contributing’ has also been considered. The employment need not be the sole contributing factor and can be just one of several factors contributing to the contraction of the disease, its acceleration, aggravation or occurrence (Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 43). In Treloar the Full Federal Court commented at 323:‘… once it is established that an employee in the doing of his work was exposed to “a state of affairs to which he would otherwise not have been exposed” or to “some characteristic of or condition in which the work was to be performed” and that such exposure was in truth a “contributing” factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. … In all cases the question is whether there has been a “contribution”. …’54.It is the Tribunal’s view that by material contribution the 1988 Act looks to a contribution that is not de minimus, but the contribution need not be the sole or principle (sic) contributor to the disease or the aggravation of it.…56.After carefully weighing all medical evidence and taking into account the duties undertaken by the applicant over 30 years, the Tribunal is satisfied, on the balance of probabilities, that the duties of his employment contributed in a material degree to the shoulder condition or to an aggravation of the shoulder condition from which the applicant now suffers. The Tribunal was particularly mindful of the explanation given by Dr Hayes of the patho-physiology and the tenuous blood supply to the supraspinatus tendon of the musculo tendon function and the tendon insertion and how this blood supply could have been compromised by the natures of the duties undertaken by the applicant. 57.The Tribunal accepts that his age and underlying genetic factors are also likely to have been contributing factors. Nevertheless, all that is required is that there is a material contribution from the employment and that is found to exist in this case.”THE ISSUE ON APPEAL