May v Military Rehabilitation and Compensation Commission
[2015] FCAFC 93
•30 June 2015
FEDERAL COURT OF AUSTRALIA
May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93
Citation: May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 Appeal from: May v Military Rehabilitation and Compensation Commission [2014] FCA 406 Parties: BENJAMIN JAMES EDWARDS MAY v MILITARY REHABILITATION AND COMPENSATION COMMISSION
BENJAMIN JAMES EDWARDS MAY v MILITARY REHABILITATION AND COMPENSATION COMMISSION & ADMINISTRATIVE APPEALS TRIBUNAL
File numbers: NSD 485 of 2014
NSD 945 of 2014Judges: ALLSOP CJ, KENNY, BESANKO, ROBERTSON AND MORTIMER JJ Date of judgment: 30 June 2015 Catchwords: WORKERS COMPENSATION – whether the appellant suffered an “injury” within the definition of s 4(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the primary judge erred in failing to identify errors of law in the Administrative Appeals Tribunal’s (Tribunal) decision – whether the Tribunal erred in the construction of the word “injury” by giving meaning to the word only by reference to certain specific remarks made in Kennedy Cleaning Services Pty Ltd v Petkoska 200 CLR 286 at [35] – whether “injury” requires a specific finding of “sudden or identifiable physiological change” – whether the Tribunal erred in requiring proof of causal contribution of employment to the injury suffered temporally in the course of employment – whether the Tribunal erred in misdirecting itself as to evidence required for a finding of “injury”.
ADMINISTRATIVE LAW – whether grounds of appeal state a question of law – whether an appeal on a question of law encompasses a so-called question of mixed fact and law – whether appeal competent – whether pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) the Court may exercise its appellate jurisdiction dealing with a question of law that had not been previously raised before the primary judge – whether there is prejudice, issue estoppel or Anshun estoppel arising from hearing the further judicial review application under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), together with the appeal.
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 16
Compensation (Commonwealth Employees) Act 1971 (Cth) ss 5, 27 and 29
Commonwealth Employees’ Compensation Act 1930 (Cth) ss 4, 9 and 10
Commonwealth Employees’ Compensation Act 1948 (Cth) ss 4, 9 and 10
Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth)
Commonwealth Workmen’s Compensation Act 1912 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 20 and 24
Judiciary Act 1903 (Cth) s 39B
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4 and 14
Workmen’s Compensation Act 1897 (UK)
Workmen’s Compensation Act 1906 (UK) s 8
Workers’ Compensation Act 1916 (Qld) s 3
Workers Compensation Act 1926 (NSW) ss 6 and 7
Workers Compensation Act 1987 (NSW) s 9A
Workers’ Compensation Act 1951 (ACT) s 7Cases cited: Accident Compensation Commission v McIntosh [1991] 2 VR 253
Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538
Aktiebolaget Hässle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411
Allianz Australia Ltd v Sim [2012] NSWCA 68
Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36
Australian Iron and Steel Ltd v Connell [1959] HCA 54; 102 CLR 522
Australian Postal Corporation v Burch [1998] FCA 42
Australian Postal Corporation v Burch [1998] FCA 944; 85 FCR 264
Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290
Australian Telecommunications Commission v Barker [1990] FCA 489; 12 AAR 490
Australian Telecommunications Corporation v Lambroglou [1990] FCA 689; 12 AAR 515
Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503
Bell v Commissioner of Taxation [2013] FCAFC 32
Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321
Brintons Limited v Turvey [1905] AC 230
Canute v Comcare [2006] HCA 47; 226 CLR 535
Charter Reinsurance Co Ltd v Fagan [1997] AC 313
Clover, Clayton & Co Limited v Hughes [1910] AC 242
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280
Comcare v Etheridge [2006] FCAFC 27; 149 FCR 522
Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153; 207 FCR 247
Commonwealth v Hornsby [1960] HCA 27; 103 CLR 588
Commonwealth v Ockenden [1958] HCA 37; 99 CLR 215
Commonwealth v Whillock [1983] FCA 183; 48 ALR 433
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Darling Island Stevedoring and Lighterage Co Ltd v Hankinson [1967] HCA 10; 117 CLR 19
Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Evans v Queanbeyan City Council [2011] NSWCA 230
Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580
Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994
Fenton v J Thorley & Co, Limited [1903] AC 443
Fife Coal Co v Young [1940] AC 479
Haritos v Commissioner of Taxation [2015] FCAFC 92
HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; 149 FCR 291
Health Insurance Commission v Van Reesch [1996] FCA 1118; 45 ALD 302
Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; 62 CLR 317
Hockey v Yelland [1984] HCA 72; 157 CLR 124
Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1
Hume Steel Ltd v Peart [1947] HCA 34; 75 CLR 242
Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241
Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564
James Patrick & Co Proprietary Ltd v Sharpe [1955] AC 1
Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286
Life Insurance Company of Australia Ltd v Phillips [1925] HCA 18; 36 CLR 60
Major Engineering Pty Ltd v Timelink Pacific Pty Ltd (No 2) [2009] VSCA 83
Momcilovic v The Queen [2011] HCA 34; 245 CLR 1
Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; 84 NSWLR 697
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509
NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11; 250 CLR 490
O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310
O’Kane v Comcare [2014] FCA 341; 221 FCR 482
OV v Members of The Board of Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606
Petkoska v Kennedy Cleaning Pty Ltd [1998] FCA 1289; 87 FCR 526
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379
R v Kearney; Ex parte Attorney-General (Northern Territory) [1984] FCA 261; 3 FCR 534
Sea Shepherd Australia Ltd v Federal Commissioner of Taxation [2013] FCAFC 68; 212 FCR 252
Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521; 59 FCR 6
Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13
Tabet v Gett [2010] HCA 12; 240 CLR 537
Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 182; 49 FCR 409
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; 82 ALR 175
Tubemakers of Australia v Fernandez (1976) 50 ALJR 720; 10 ALR 303
Tuite v Administrative Appeals Tribunal [1993] FCA 71; 40 FCR 483
Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439
Walker v Bairds & Dalmellington Ltd 1935 SC (HL) 28
Webb v Repatriation Commission [1988] FCA 127
Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310Articles and Texts: Commonwealth, Parliamentary Debates, Representatives, 16 September 1948
Commonwealth, Parliamentary Debates, Senate, 24 May 1988
Hanks P, “Safety, Rehabilitation and Compensation Act Review, Report – February 2013” (Commonwealth of Australia 2013)
Jones O, Bennion on Statutory Interpretation (6th ed, Lexis Nexis UK, 2013)Date of hearing: 19 and 20 February 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 235 NSD 485 of 2014 Counsel for the Appellant: Mr P Menzies QC and Ms B K Nolan Solicitor for the Appellant: AW Simpson & Co Counsel for the Respondent: Mr G T Johnson SC and Mr B D Kaplan Solicitor for the Respondent: Moray & Agnew NSD 945 of 2014 Counsel for the Applicant: Mr P Menzies QC and Ms B K Nolan Solicitor for the Applicant: AW Simpson & Co Counsel for the First Respondent Mr G T Johnson SC and Mr B D Kaplan Solicitor for the First Respondent: Moray & Agnew
Counsel for the Second Respondent: The Second Respondent entered a submitting appearance, save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 485 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: BENJAMIN JAMES EDWARDS MAY
AppellantAND: MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
JUDGES:
ALLSOP CJ, KENNY, BESANKO, ROBERTSON AND MORTIMER JJ
DATE OF ORDER:
30 JUNE 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to the appellant to rely upon the amended notice of appeal filed on 15 October 2014.
2.The appeal be allowed.
3.The orders of the Court made on 30 April 2014 be set aside, and in lieu thereof order that:
(a)the decision of the Administrative Appeals Tribunal dated 14 December 2011 be set aside;
(b)the matter be remitted to the Tribunal for determination according to law; and
(c)the respondent pay the appellant’s costs.
4.The respondent pay the appellant’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 945 of 2014
BETWEEN: BENJAMIN JAMES EDWARD MAY
ApplicantAND: MILITARY REHABILITATION AND COMPENSATION COMMISSION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
ALLSOP CJ, KENNY, BESANKO, ROBERTSON AND MORTIMER JJ
DATE OF ORDER:
30 JUNE 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The time in which the applicant be permitted to file an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended to 15 October 2014.
2.The application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) be heard and determined by the Full Court of the Federal Court, together with the applicant’s appeal from the decision of the Court (Buchanan J) dated 30 April 2014.
3. The said application be dismissed, the first respondent to pay the applicant’s costs thereof.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 485 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: BENJAMIN JAMES EDWARD MAY
AppellantAND: MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 945 of 2014
BETWEEN BENJAMIN JAMES EDWARD MAY
ApplicantAND: MILITARY REHABILITATION AND COMPENSATION COMMISSION First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
ALLSOP CJ, KENNY, BESANKO, ROBERTSON AND MORTIMER JJ
DATE:
30 JUNE 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT
Introduction and summary
Shortly after joining the Royal Australian Air Force (RAAF), the appellant, Mr May, suffered from symptoms or a condition that the Administrative Appeals Tribunal said in its decision dealing with his claim for compensation, “cut short what might have been a very promising career as a pilot of the RAAF”. The Tribunal concluded, however, that Mr May (to whom we shall refer as the appellant, notwithstanding he is also an applicant before the Court) had not suffered an “injury” for the purposes of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and that the Military Rehabilitation and Compensation Commission (MRCC), the respondent, was not liable to pay him compensation under the SRC Act. It should be said at the outset that there was no issue about the truthfulness and reliability of the appellant’s claim as to his disability, in that he was (and became shortly after joining the RAAF) significantly disabled by what the Tribunal called vertigo.
The primary judge found the appellant had not identified any legal error in the Tribunal’s decision, and in particular, in its approach to the determination of whether the appellant suffered an “injury” as that term is to be construed in the SRC Act.
There is complexity in the documentation before this Court on appeal. In conjunction with an appeal from the primary judge’s decision, the appellant filed an application for judicial review pursuant to s 39B of the Judiciary Act1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). Also an amended application was filed, together with an amended notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). We will return to this thicket of documentation in due course.
In the appeal, the Court is concerned, first, with whether error has been shown in the decision of the primary judge and, if so, whether legal error has been shown to exist in the Tribunal’s decision. That legal error may be identified either through a question of law formulated in the appeal under s 44 of the AAT Act, or in grounds of review formulated to support a claim for relief under s 39B of the Judiciary Act or under ss 5 and 16 of the AD(JR) Act, if these latter two judicial review mechanisms are available in the circumstances.
The existence of a challenge to the lawfulness of the Tribunal’s decision under both the Judiciary Act and the AD(JR) Act might, on one view, render detailed consideration of the particular approach to s 44(1) unnecessary. However, a court of five members was constituted to consider that issue in particular; and we have determined the appeal on that basis.
On the issues concerning the nature and scope of an appeal under s 44 of the AAT Act, these reasons for judgment should be read in conjunction with our reasons for judgment in Haritos v Commissioner of Taxation [2015] FCAFC 92. We summarise the effect of our decision in Haritos in relation to s 44 of the AAT Act at [161] below.
We are satisfied the appellant has established error in the decision of the learned primary judge, and that certain questions of law identified by the appellant should be answered favourably to him.
Factual background
The appellant enlisted in the RAAF on 6 November 1998 and was discharged on 30 July 2004 at the rank of Officer Cadet. Between 10 November 1998 and 30 March 2000, the appellant received various vaccinations in the course of his employment in the RAAF.
The Tribunal’s factual findings on the sequence of events experienced by the appellant after the vaccinations were set out at [53] of the reasons:
Mr May has described the symptoms he experienced following the vaccinations he received on 10 November 1998. It is clear from the medical tests that Mr May underwent before he was accepted for entry into the RAAF as an officer cadet, that he was healthy and very fit. Mr May states that within 30 to 60 minutes of receiving the vaccinations, he began to experience symptoms and that these increased over the next few days. He says his tongue felt swollen, he felt dizzy and experienced nausea and diarrhoea. There are clinical notes on his reporting sick from 22 November 1998 and these notes appear to record the symptoms as described by Mr May at the time. The medical opinions recorded in the notes […] indicate that Mr May’s treating doctors thought that he was probably suffering from a viral illness and possibly bacterial gastroenteritis. Thereafter, he had a history of infections, particularly of the upper respiratory tract, which, on some occasions required hospital treatment.
The primary judge also referred to what occurred at [28] of his reasons:
… After the first set of vaccinations which occurred during his RAAF service he was diagnosed with a viral illness. The following year (1999), he was again diagnosed with a viral illness. In 2000 Mr May was found to need gammaglobulin treatment for persistent lymphopenia (low lymphocytes count). It was suggested then that the treatment would be lifelong but in 2001 the treatment was found to be no longer necessary. In the succeeding years Mr May underwent a series of investigatory procedures which produced no clear identification of the cause of his symptoms.
The appellant’s claim was summarised by the Tribunal at [2] of its reasons:
… On 29 November 2002, Mr May lodged a claim for rehabilitation and compensation dated 20 November 2002 in respect of “low immunity, fatigue, illnesses, dizziness” which he claimed was caused by vaccinations received in the course of his employment in the RAAF. On 11 March 2003, a MRCC delegate denied Mr May’s claim noting that specialists who had examined Mr May had been unable to diagnose any specific condition or determine a cause for his symptoms, and the delegate was therefore unable to connect the claimed condition with his RAAF service.
Following an application for review, on 22 April 2010, the MRCC reconsidered but affirmed the decision of 11 March 2003 denying the appellant’s claim.
Relevant legislative framework
Section 14 of the SRC Act provides:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
At the relevant time, the word “injury” was defined in s 4(1) of the SRC Act as follows:
injury means:
(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, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
At the relevant time, the word “disease”, was defined in s 4(1) as follows:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.At the relevant time, the word “ailment” was in turn separately defined under s 4(1) as follows:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Central issues in the appeal
It will be necessary to refer more fully to the terms of the appellant’s complaints about the Tribunal’s and primary judge’s approaches, but the central question and errors of law can be expressed tolerably simply as follows.
The central question in the appeal is whether the primary judge erred in failing to identify a relevant error of law made by the Tribunal in addressing the question as to whether the appellant suffered an injury arising in the course of his employment with the RAAF.
At least the following errors of law were said by the appellant on appeal to have been committed by the Tribunal:
(a)The Tribunal misconstrued the statutory definition of the word “injury” in s 4 of the SRC Act by giving meaning to the word only by reference to certain specific remarks of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 dealing with another piece of legislation, rather than by construing the Act as a whole and in its historical (including legal) context, with the assistance of cases such as Kennedy Cleaning.
(b)The Tribunal misconstrued or misapplied the phrase “injury arising in the course of employment” by effectively requiring proof of a causal contribution of employment to the injury suffered temporally in the course of employment.
(c)The Tribunal misdirected itself as to the evidence that could be sufficient in determining whether the appellant had suffered an “injury” and thereby failed to undertake its review function according to law.
The asserted errors in (b) and (c) were raised before the primary judge, but not that in (a), at least not in its particular terms.
For the reasons which follow, the errors asserted in (a), (b) and (c) are all made out.
The statutory and legal context of s 14 of the SCR Act and the meaning of “injury” therein
Before turning to the background to s 14 and the conceptions of “injury” and “disease” in the legislation, it is worthwhile noting the unusual nature of the circumstances and why great care needs to be exhibited in a precise understanding of the statute and of the concepts dealt with in it. If the appellant is to be accepted as truthful, as he apparently was, he has a “condition” that the Tribunal “loosely described” (see Tribunal [61]) as vertigo; it was preceded by various physiological changes at different times: a swollen tongue within 30 to 60 minutes of receiving some vaccinations, nausea with stomach discomfort, sore teeth, swollen glands, and a feeling of disequilibrium or dizziness. No doctor has been able to diagnose the true nature of the condition; no disease has been identified of which these physiological changes might be described as symptoms; no doctor has been able to identify an event (external or internal) that caused or explained these physiological changes.
In this context, it is crucial to understand the statute, and from it, to understand what the notion of “injury” is, how it relates to “disease” and the extent to which, if at all, an “injury” requires a specific event or cause that explains symptoms or a condition that can otherwise be said to be an identifiable physiological change to the body, or a disturbance of the normal physiological state, or something which involves a harmful effect on the body. To understand these issues and to explain why the Tribunal fell into error and the proper conception of “injury” in the SRC Act, it is necessary to understand the development of the provisions, and the meaning of the concepts in question, as explained and discussed in a number of authoritative and persuasive cases.
The structure and meaning of s 14 and the relevant definitions in s 4 of the SRC Act take their place after over a century of legislation dealing with the compensation of injured workers. Whilst it is not necessary to trace this history in exhaustive detail, it is instructive to note certain aspects of it in order to understand the legal context of the SRC Act and, in particular, the definitions of “injury” and “disease”.
The following discussion owes much to the full and authoritative consideration of the development of Australian workers’ compensation legislation, the concepts involved and the proper approach to construction of statutes, such as the SRC Act, that is to be found in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 and Kennedy Cleaning. Given, however, the uniqueness of the appellant’s position, we think it appropriate to deal with the legal context in a little detail.
The first Australian statutes were based on United Kingdom legislation: the Workmen’s Compensation Act 1897 (UK) (1897 Act) and the Workmen’s Compensation Act 1906 (UK) (1906 Act). Neither statute defined “injury” or “disease”. The central operative provision of both the 1897 Act and the 1906 Act linked compensation to “personal injury by accident arising out of and in the course of employment [being] caused to a workman”.
The authoritative interpretation of the compound expression “personal injury by accident” was given by the House of Lords in Fenton v J Thorley & Co, Limited [1903] AC 443 at 448 and 451 (Lord Macnaghten and Lord Shand, respectively), as follows:
Now the expression “injury by accident” seems to me to be a compound expression. The words “by accident” are, I think, introduced parenthetically as it were to qualify the word “injury”, confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design. Then comes the question, Do the words “arising out of and in the course of employment” qualify the word “accident”, or the word “injury”, or the compound expression “injury by accident”? I think the latter view is the correct one…I come, therefore, to the conclusion that the expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed: Lord Macnaghten at 448.
[After agreeing with the speech of Lord Macnaghten] I shall only add that, concurring as I fully do in holding that the word “accident” in the statute is to be taken in its popular and ordinary sense, I think it denotes or includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence: Lord Shand at 451.
That disease could be personal injury by accident using those words in the ordinary sense was recognised in Brintons Limited v Turvey [1905] AC 230 at 233-234 (Earl of Halsbury LC), 234-235 (Lord Macnaghten) and 237- 238 (Lord Lindley). The use of the word “accident” was, as the Earl of Halsbury LC said in Brintons at 233, to exclude idiopathic disease. As we have just set out, in Fenton at 448, Lord Macnaghten said that the word “accident” was used in its ordinary sense as “denoting an unlooked-for mishap or an untoward event which is not expected or designed”. As Latham CJ later said in Hume Steel Ltd v Peart [1947] HCA 34; 75 CLR 242 at 252, if diseases were excluded from compensation that was so not because they were not injuries, but because they were not within the conception of the word “accident”. See also Kennedy Cleaning at 294 [21] per Gleeson CJ and Kirby J.
The 1906 Act introduced, in s 8, specific provision for diseases set out in the schedule to the Act if “the disease is due to the nature of any employment in which the workman is employed”.
Section 8(10) provided that nothing in s 8 (by its dealing with certain diseases):
shall affect the rights of a workman to recover compensation in respect of a disease to which this section does not apply, if the disease is a personal injury by accident within the meaning of this Act.
Thus, there was no doubt that a disease could be a personal injury, but it had to be “by accident”.
The relationship between disease and injury within the phrase “personal injury by accident” arose with the question as to whether the rupture of an aneurism (the aneurism being a manifestation of an idiopathic disease) could be “personal injury by accident”. The House of Lords held that it could be: Clover, Clayton & Co Limited v Hughes [1910] AC 242 where a workman suffering from a serious aneurism fell dead while employed straining and tightening a nut.
The distinction drawn in these cases, necessitated by the requirement of “accident” and the conjunctive “and”, was between the consequence of the progress of a disease (not personal injury by accident) and a consequence contributed to by an event that occurred in the course of employment (a personal injury by accident). That distinction, in some form, has (as the discussion of the authorities below reveals) permeated later statutory formulations: see also the comments of Brennan CJ and Dawson and Gaudron JJ in Zickar at 316.
The early legislation in all States and Territories adopted the definition of “injury” in the 1897 Act and the 1906 Act (“personal injury by accident arising out of and in the course of employment”). Some adopted the approach to disease in s 8 of the 1906 Act.
Commonwealth legislation was passed in 1912: Commonwealth Workmen’s Compensation Act 1912 (Cth) (1912 Cth Act), which likewise followed the model of the 1897 Act: a scheme where liability arose for personal injury by accident arising out of and in the course of employment, with no definition of “injury” or “disease”.
In 1930, the Commonwealth Employees’ Compensation Act 1930 (Cth) (1930 Cth Act) was passed, which adopted the 1906 Act model: an operative provision for personal injury by accident in the same terms as the 1897 Act and the 1912 Cth Act, with “disease” dealt with in a schedule. There was, however, no equivalent of s 8(10) of the 1906 Act.
In 1948, the 1930 Cth Act was amended by the Commonwealth Employees’ Compensation Act 1948 (Cth) (1948 Cth Amending Act) to include definitions of “injury” and “disease” in s 4:
‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;
…
‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;
The relevant operative provisions (s 9 as to “injury” and s 10 as to “disease”) were amended. Section 9 was repealed and replaced with a provision with subs (1) as follows:
If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.
(Emphasis added.)
The provision was similar to the 1897 Act and the 1906 Act structure with the important exception of the change from “and” to “or” in the phrase “arising out of
andor in the course of”. The requirement for “personal injury by accident” remained. By this time, 1948, such a more liberal provision (based on the disjunctive “or” not the conjunctive “and”) was found in equivalent legislation in a majority of States, and the words “by accident” had been removed in many States, though not in the 1930 Cth Act.Importantly, s 10 (the provision dealing with compensation for diseases) was amended by replacing the existing provision referring to a schedule of diseases (subs (1)) with a generally expressed provision in subs (1) as follows:
Where –
(a)an employee is suffering from a disease and is thereby incapacitated for work; or
(b) the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.The changes to s 10 marked a departure from the approach to liability for disease in the 1906 Act that identified particular occupational diseases which were compensable. This was the first time that the Commonwealth scheme sought to identify what constituted a disease in a general sense, rather than by simply relying on the ordinary meaning of the word or a schedule which listed diseases for the purposes of the Act. Furthermore, it provided for compensation for any “disease” which was “due to the nature of the employment in which the employee was engaged”.
In the Minister's second reading speech (Commonwealth, Parliamentary Debates, Representatives, 16 September 1948, 531-2 (Mr Dedman)) which otherwise emphasised that the general purpose of the Act was to increase the amounts payable to injured workers, the following observations were made about these amendments:
… [I]t is proposed to repeal the present second schedule to the Act which specifies the diseases on account of which compensation will be granted, and limits compensation to particular processes causing disease. Following the example of New South Wales, Victoria and Queensland, compensation will, under this proposal, be granted on account of incapacity for work caused by any disease provided that it is due to the nature of the employment.
…In total, therefore, the Act, if amended as proposed, will be thoroughly up to date, and will incorporate a wide and ample scheme of safeguards for those who serve the Commonwealth in their daily work. …
In Hume Steel 75 CLR 242, the High Court dealt with a journey claim under the Workers Compensation Act 1926 (NSW) (1926 NSW Act). The case concerned a man who died of a coronary occlusion riding his bicycle to work. It was said by the employer that there was no injury. The deceased’s aorta and coronary arteries were in an advanced state of atheroma; the artery was brittle; a piece of lining of the artery had loosened and blocked the artery. Journey claims were dealt with under s 7(1)(b) that commenced, “Where a worker has received injury …”. Section 6(1) defined “injury” in a manner to include disease “to which the employment was a contributing factor”. The section read:
‘Injury’ means personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor…
The Court found the definition of “injury” in s 6(1) was not applicable to the word “injury” in s 7(1)(b). Importantly, for later cases, and for this case, Latham CJ discussed the nature of, and relationship between, injury and disease in s 6. In passages in Hume Steel, parts of which were quoted and cited by Toohey, McHugh and Gummow JJ and by Kirby J in their two sets of reasons in Zickar 187 CLR at 332 and 340 and referred to and cited by Gleeson CJ and Kirby J, and Gaudron J in Kennedy Cleaning 200 CLR at 300 [39] and 303 [50], Latham CJ said 75 CLR at 252-253:
Many cases have been decided in English courts on the words “personal injury by accident”… Cases such as Fenton v. J. Thorley & Co. Ltd.; Clover, Clayton & Co.Ltd. v. Hughes and many other cases have dealt with the subject of accident, and have resulted in the establishment of the proposition which I quote from Fenton v. J. Thorley & Co. Ltd. That the “expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed,” that is, is not expected or designed by the worker… In many cases the relation of the conception of “accident” to that of disease has been discussed. But the word “accident” is not found in the New South Wales legislation and these authorities are in my opinion of no assistance in determining the question which arises in the present case.
The cases in which the question was whether the contraction or aggravation of a disease amounted to a personal injury by accident or whether a disease arose out of or in the course of the employment all assume that a disease is an injury. What are described as idiopathic diseases are outside the English Act (Brintons Ltd. v. Turvey). The plaintiff’s atheromatous condition, according to the findings of the Commission, was such a disease – it was a morbid condition of which the cause is unknown. But these diseases are excluded from the English Act, not because they are not injuries, but because the onset and development of such a disease cannot be brought within the conception of the word “accident” as defined in Fenton v. J. Thorley & Co. Ltd. Thus in England it has been held that if the death of a workman is attributable solely to disease, then it cannot be said to be due to accident. In such a case there is nothing unexpected. But the exclusion of such cases from the category of accidental injury does not show that they are to be excluded from the category of injury.
There is a distinction, according to the common use of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described. But it requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury. The death of the worker resulted from that injury.
(Emphasis added.)
Notwithstanding the fate of the approach in Hume Steel to the construction of the relevant statute brought about in later cases to which reference is made below, these passages are (by reason of their modern adoption in Zickar and Kennedy Cleaning) of continuing importance to understand the meaning of “injury” (in what might be called its ordinary meaning) and also to place in context what Gleeson CJ and Kirby J said in Kennedy Cleaning, and in particular to recognise that their use of words was not definitional in character, but by way of exemplification.
Hume Steel is also important for its place in the history of the construction and interpretation of provisions such as s 6(1) of the 1926 NSW Act which defined “injury” without the phrase “by accident” and with the disjunctive “or” and expressly included disease to which the employment was a contributing factor. In Hume Steel the Chief Justice and all the justices (Latham CJ at 252-253, Rich J at 254, Starke J at 254, Dixon J at 256-258 and McTiernan J at 259) refused to confine “injury” as including only diseases to which employment was a contributing factor. Exemplifying this unanimous view, Dixon J said at 258:
I am unable to agree in the argument that was advanced founded upon the express reference in the definition of “injury” to diseases contracted in the course of the employment to which the employment is a contributing factor. That argument was that the only disease or pathological state or change covered by s 7(1), whether under the head of “injury” or otherwise, is that described in the reference to disease contained in the definition of “injury.”
It must be remembered that the words in question were introduced to enlarge the scope of the definition. I think a restrictive inference of so drastic a kind cannot be based upon them.
This latter view as to the non-exclusive effect of including diseases so contributed to by employment (as well as the view that the s 6(1) definition of “injury” was not applicable to s 7(1)(b) journey claims) was rejected in 1951 by the Privy Council in a New South Wales workers compensation appeal in Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13. Lord Simonds said that the meaning of injury was narrowed by the exclusionary effect of the inclusion of disease contributed to by employment, saying at 19-20:
The Act, as is commonly conceded, makes a substantial departure from former legislation in this field, and in particular deals not, as had previous Acts, with “injury by accident” but with “injury” simpliciter, a change which made it necessary to define what had previously been undefined. The difficulty of such definition is shown in the several alterations which were made in Amending Acts between 1926 and 1947, and is, perhaps, further illustrated by the fact that in the end the definition still contains the word which is itself to be defined. But this at least is clear, that in the Act the word “injury” (unless the context or subject-matter otherwise indicates or requires) must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease.
Slazengers was followed in Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482 in a case under s 6(1) of the 1926 NSW Act concerning a watchman who collapsed and died from a coronary occlusion after suffering from progressive heart disease. Dixon CJ, Fullagar, Kitto and Windeyer JJ applied Slazengers. At 495-496, Dixon CJ made clear that the evidence only revealed the progression of the heart disease and not a “separate or distinct disease”; see also 505 (Fullagar J), 509 (Kitto J) and 518 (Windeyer J). There was no relevant employment contribution; so, the worker failed. Fullagar J observed at 500:
With regard to Kellaway's Case [Kellaway v Broken Hill South Ltd (1944) 44 SR (NSW) 210], it is important to note that Jordan CJ expressed the opinion that all cases of disease must, both under the Act of 1929 and the Act of 1942, be subsumed under the second part of the definition of “injury”, i.e. that part of the definition which deals specifically with diseases. A case of disease could no longer be regarded as a case of injury in the general sense of the first part of the definition. His Honour said: - “The portion of the definition of injury beginning with the words ‘and includes a disease’ was inserted to indicate that injury is no longer, in the Act, to be read, by a somewhat forced construction, in a non-colloquial sense wide enough to include disease generally, but is to include it only when it is ‘contracted’ in the conditions specified. … It follows that if a worker originally contracts a not immediately disabling disease from causes to which his employment does not contribute, and, for causes to which also the employment does not contribute, the disease, by its natural progress, grows worse until it reaches a point at which it disables him or causes his death, his employer incurs no liability to compensation”. So far I would agree with his Honour: indeed, I think it is clear that the view which he has expressed is correct. …
(Emphasis in bold added; emphasis in italics in original.)
Windeyer J also observed at 518 that the effect of the definition (in s 6(1)) and of the Privy Council’s decision was that the only compensable disease under the 1926 NSW Act was one which came within the definition (that is, a disease to which employment was a contributing factor).
The distinction between disease and injury of the kind dealt within the construction of s 6(1) of the 1926 NSW Act in Slazengers was brought to the 1930 Cth Act in three cases: Commonwealth v Ockenden [1958] HCA 37; 99 CLR 215, Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547, and Commonwealth v Hornsby [1960] HCA 27; 103 CLR 588. It is to be recalled that the 1930 Cth Act used the phrase “personal injury by accident”.
In Ockenden, a naval officer with a “rheumatic heart” claimed compensation under the 1930 Cth Act. Initially it was contended that he was suffering a “disease” within the meaning of s 4(1) but the Commissioner and the County Court Judge were both of the opinion that his condition was not in any way attributable to naval service. On the appeal to the County Court, he successfully argued that his condition constituted “personal injury by accident”. The Court (Dixon CJ, Fullagar and Taylor JJ) in concluding that the facts did not disclose any injury by accident held, in respect of cases falling within the statutory definition of “injury” rather than “disease” (at 223-224):
The acceptance in Sharpe’s Case [(1955)] AC 1] of the view that in Victoria it is now no longer necessary to find an external event of some kind associated with a sudden physiological change rested, essentially, of course, upon the special provisions of the amendment introduced into the Workers’ Compensation Acts of that State by the amending Act of 1946. But the decision does not justify acceptance of the same view in cases where it must be established that the so-called injury by accident arose in the course of the worker’s employment. In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment. Indeed to hold otherwise would be to strip the word “accident” of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease. Such changes, even if they can be called accidents, occur not in the course of the employment, but, it may, perhaps be said, in the course of the disease. Accordingly, for the purposes of the Commonwealth Employees' Compensation Act it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.
(Emphasis in bold added; emphasis in italics in original.)
The “traditional view” referred to by the Court in this passage in Ockenden is illuminated by a perusal of the advice of the Privy Council in James Patrick & Co Proprietary Ltd v Sharpe [1955] AC 1 (referred to in the above passage in Ockenden) delivered by Lord Reid, in particular at 13-15. After referring to Fenton v Thorley, Lord Reid noted Viscount Caldecote LC’s views in Fife Coal Co v Young [1940] AC 479 at 483 of a steady extension of the meaning (that is, width of application) of the phrase “personal injury by accident”. Lord Reid said (at 14) that this extension was “particularly notable in cases dealing with disease”. Lord Reid referred to Lord Tomlin’s review of the authorities in a Scottish appeal, Walker v Bairds & Dalmellington Ltd 1935 SC (HL) 28. The relevant considerations concerning accident can be understood from what Lord Tomlin then said at 1935 SC (HL) 32, cited by Lord Reid, what Viscount Caldecote said in Fife Coal at 484, also cited by Lord Reid, and from what Lord Reid himself said in discussing the cases:
… there may be personal injury by accident, even though the employee’s work has proceeded in the normal way, and even though the injury is due to the presence of a special condition in the employee’s body: Lord Tomlin in Walker 1935 SC (HL) at 32.
But death or disability which was merely the result of continuous process over a period, there being no particular change in the man’s condition at any one time, was never held to be due to injury by accident: Lord Reid in Sharpe at 14.
[After reference to various cases where recovery had been denied]. In all of them the facts were such as to make it impossible to identify any event which could, however loosely, be called an accident. In these cases the workmen failed, not because a disease was outside the purview of the Workmen’s Compensation Act altogether, but because the burden of proof that there had been an accident was not discharged. When the workman’s claim is in respect of a progressive disease the difficulty of pointing to a definite physiological change which took place on a particular day is, in general, likely to be almost insuperable, and in 1906 Parliament, in the case of certain diseases and later by an enlargement of the schedule of industrial diseases, relieved the workman in the specified cases of this obligation. But if the circumstances of any claim in respect of incapacity due to disease are such as to make it possible to discharge this burden, I see no reason for thinking that what is called a disease is different in principle from a ruptured aneurism as in Clover, Clayton & Co. Ld. v. Hughes or heart failure as in Falmouth Docks & Engineering Co. Ld. v. Treloar.”: Viscount Caldecote in Fife Coal at [1940] AC 484
In all cases in the United Kingdom and in Victoria before 1946 it was necessary to prove that some external event or some action of the deceased had caused the sudden physiological change to happen when it did. In the present case the worker’s death was due to a sudden physiological change which happened at a time deemed to be in the course of his employment, but there is no finding that any external event or any action of the deceased played any part in causing the fibrillation to happen when it did and their Lordships must deal with the case on the footing that the fibrillation was due solely to the onset or progress of some disease within the man’s body: Lord Reid in Sharpe at [1955] AC 15.
(Emphasis added.)
That the “incident” to which the Court referred in Ockenden need not be external was made clear in Kavanagh 103 CLR 547 where the High Court was asked to consider whether a ruptured oesophagus constituted an “injury by accident” within the meaning of s 4(1). Dixon CJ said at 553:
The first question is whether the rupture of the gullet in these circumstances is to be considered an injury by accident. In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection …
The Chief Justice distinguished Ockenden, saying at 555:
It would not appear to me to be correct in point of law to apply the passage to such a case as the present where you have what is clearly enough an injury by accident though not occasioned by any external force or agency. I say this because I do not think that it is consistent with s 9(1) as it now stands to deny that an event or state of affairs which in truth amounts to an injury by accident did not arise in the course of the employment because its occurrence cannot be attributed to or associated with the “employment”, including in that word the nature of the employment, its incidents and all that the employee may do or refrain from doing in pursuance or in consequence thereof.
Fullagar J concurred with this conclusion (at 558) as did Menzies J (at 569). Taylor J (at 562) and Windeyer J (at 578) also concurred in this respect, but dissented in the result on the question of “in the course of” employment.
Kavanagh also reinforced, unequivocally, the lack of employment causality in “arising…in the course of employment”: 103 CLR at 555-557 (Dixon CJ), 558-560 (Fullagar J) and 569-572 (Menzies J).
The need for a sudden or distinct physiological change to be associated with or attributable to an incident of employment (whether external or internal) derived principally from the notion of “injury by accident”. So, silicosis as a result of a continuous process was not injury by accident. In Ockenden, if there had been evidence of exertions causing a sudden and distinct physiological change, such as the day’s exertion contributing to the occlusion in Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; 62 CLR 317, an injury by accident may have been established.
On the same day Kavanagh was handed down, the Court delivered Hornsby 103 CLR 588. There the respondent suffered from a stroke due to a thrombus forming in a cerebral vessel. Dixon CJ (at 592-593) refused to give the same interpretation to s 9 as was given to provisions of the 1926 NSW Act by the Privy Council in Slazengers:
In the second place the view may be suggested that the Commonwealth Employees’ Compensation Act should receive the same interpretation with reference to the distinction between injury by accident and disease as was placed by the Privy Council upon the material provisions of the New South Wales Workers’ Compensation Act 1926-1951 in Slazengers (Australia) Pty. Ltd. v. Burnett: see Darling Island Stevedoring and Lighterage Co. Ltd. v Hussey. Section 9 and s. 10 are the two parallel provisions dealing respectively with injury by accident arising out of or in the course of the employment and incapacity through disease due to the nature of the employment. The structure of these provisions and of the material definitions is unlike that of the sections of the Act of New South Wales and in my opinion there is no sufficient ground for excluding from the operation of s. 9 what would otherwise be an injury by accident simply because it is the outcome or the attendant consequence of disease or of physiological degeneration or deterioration.
(Emphasis added.)
Fullagar J observed at 596-597 that:
Under Acts, such as the Commonwealth Act, which do not expressly equate death or incapacity resulting from disease to death or incapacity resulting from traumatic injury, it is generally true to say that a claimant, who proves that death or incapacity resulted from a disease or the development of a disease, does not thereby establish that he has suffered “personal injury by accident”. This statement, however, requires qualification, because the words “injury by accident” (apart from special statutory definition) have received an extended meaning in a large number of cases. The cases which require consideration in this connexion fall, I think, into three classes. In the first place, there are the cases in which a disease has been actually contracted through exposure to infection or other risk attendant on the conditions of employment. It has been said that the entry of a harmful bacillus constitutes an injury by accident. Examples are Brintons Ltd. v. Turvey [(1905) AC 230] (anthrax) and Miller v. J. W. Handley Pty. Ltd. [(1948) 2 WCD (Vic) 134] (tuberculosis), which was discussed in Nash v. Sunshine Porcelain Potteries Ltd. [(1959) 101 CLR 353, at 363, 364, 378 and 379]. Then there are, secondly, the cases where there is actual internal physical injury such as the rupture of an aneurism or of an oesophagus (Clover, Clayton & Co. Ltd. v. Hughes [(1910) AC 242], Kavanagh v. The Commonwealth [(1906) 103 CLR 547]). It has been said, naturally enough, that the breaking of an artery cannot be distinguished from the breaking of a leg. Then we have finally the class of case in which death or incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition. In these cases the final occurrence which results in death or incapacity is commonly referred to as a “sudden physiological change”. Examples are found in Hetherington’s Case (coronary occlusion) and Sharpe’s Case (auricular fibrillation). In the heart cases it is common to find that the morbid condition (usually arterial atheroma or sclerosis) has existed for a substantial number of years and would inevitably have caused early death or incapacity apart altogether from any employment in which the worker was engaged.
In all these cases it is to be remembered that the question whether there has been personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose out of or in the course of the relevant employment. The questions have not always been kept distinct, and I am not quite sure that we kept them distinct at all points in Ockenden’s Case.
Cases belonging to the second of the three classes mentioned above are not properly regarded as cases of disease at all. They are case of injury within the ordinary acceptation of that word, and, where the employer contested liability, it was usually on the ground that there was a pre-disposing physical condition and that it was not enough that some incident of the employment contributed to the death or disablement. To this the answer of the courts was, in effect, that the employer must take the worker as he finds him. This is now well settled.
Cases of the first and third classes are, of course, cases of disease.
The three classes of cases referred to by Fullagar J reflect the fact intensive nature of the judgment as to whether the circumstances reveal an injury or disease.
The High Court returned to the injury/disease issue under s 6(1) of the 1926 NSW Act in Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580. There the Court was dealing with a slightly amended definition as follows:
“Injury” means personal injury arising out of or in the course of employment, and includes –
(a)a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor.
Not without clear reservations in the judgment of Barwick CJ, the exclusion of “disease” from “injury” in the 1926 NSW Act was restated in the judgments of Barwick CJ, Stephen J and Mason J at 592, 593 and 596-597, respectively.
A decade later, in Hockey v Yelland [1984] HCA 72; 157 CLR 124, the Court gave the same construction to the equivalent definition in the relevant Queensland legislation as was given to the 1926 NSW Act in Favelle Mort. Section 3(1) of the Workers’ Compensation Act 1916 (Qld) contained the following definition of the word “injury”:
‘Injury’ means (without in any wise limiting the operation and scope of section nine of this Act) personal injury arising out of or in the course of employment includes –
(a) a disease which is contracted in the course of the employment, whether at or away from the place of employment, to which the employment was a contributing factor; and
(b)the aggravation or acceleration of any disease where the employment was a contributing factor to such aggravation or acceleration,
but does not include those diseases as specified in section 14B of this Act;
Gibbs CJ (with whom Mason and Brennan JJ agreed) observed at 136 – 137:
… [T]he definition of injury in s. 6(1) of the N.S.W. Act, which is indistinguishable for present purposes from that in s. 3(1) of the Queensland Act, includes a disease only if it falls within par. (a) or par (b), and so only if employment was a contributing factor. I see no reason to doubt the correctness of the construction placed upon the definition in …[Slazengers and Darling Island Stevedoring], but even if, contrary to my present view, a disease which is not autogenous, but is caused or exacerbated by an external stimulus, can come within the description of injury simpliciter and so within the opening words of the definition, it is clear that an autogenous disease which happens to manifest itself in the course of employment is only an “injury” if it comes within par. (a) or par. (b)
… On the one hand, if an autogenous disease naturally progresses until it results in incapacity, there is no injury within the opening words of the definition: if the incapacity is to be compensable it must fall within par. (a) or par. (b). On the other hand, a sudden identifiable physiological change may be an injury if it results from some external cause during the course of the employment.
In 1971, the Parliament passed the Compensation (Commonwealth Employees) Act 1971 (Cth) (1971 Cth Act). It retained in s 5(1) definitions of “injury” and “disease” as follows:
“disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;
“injury” means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease;
In the operative provision for compensation for “injury” (s 27), the requirement of “by accident” was removed. The operative provision for compensation for “disease” (s 29) required that employment be a “contributing factor”.
So, through the exclusion of disease from the definition of injury in s 5 (for the purposes of s 27) and the separate treatment of disease in s 29, injury and disease can be seen as separate concepts in the 1971 Cth Act.
The meaning of “injury” and “disease”, the relationship of the two concepts, and the operation of the relevant provisions of the 1971 Cth Act were considered by Full Courts of this Court in Commonwealth v Whillock [1983] FCA 183; 48 ALR 433 and Health Insurance Commission v Van Reesch [1996] FCA 1118; 45 ALD 302. Before Van Reesch was decided, the High Court in Zickar considered the correctness of Slazengers, Hussey, Favelle Mort and Hockey v Yelland in relation to the Workers Compensation Act 1987 (NSW) (1987 NSW Act).
In Whillock the deceased (a Chief Petty Officer in the Navy) died after he suffered a myocardial infarction on board ship caused by an occlusion of his right coronary artery by a thrombus of recent origin. The thrombus was caused by a reaction on his blood passing through degenerate blood vessels which were diseased. Smithers and St John JJ upheld the Commonwealth’s appeal from the award of compensation by the Workers Compensation Commission of New South Wales. The findings of the Commission were that there was a “pathological change to … a vital organ.” This was held by the Commissioner to be an “event” which constituted an injury.
Smithers J at 438 said the following:
Of course the thrombus, the occlusion and the myocardial necrosis were injuries in the sense that they caused harm. Also each was an incident of physical degeneration precedent to the myocardial necrosis which led to the ultimate death. So in a sense was the narrowing of the artery itself. To say that each of these was an injury does not assist. To support the reasoning of the Commissioner the injury or injuries he regarded as critical is not significant until it is decided that they were not the result of a disease.
Smithers J then referred to Hume Steel, Slazengers and Hussey. He concluded that a step in the progress of a disease is a disease, not an injury. Smithers J referred to and adopted the following comment of Fullagar J in Hussey on Hume Steel (102 CLR at 505):
If it were permissible to ignore that part of the definition of ‘injury’ which deals with diseases, it would be permissible to say that the physiological event of the blocking of an artery, if some exertion on the part of the worker had contributed to it, was within an artificial but established meaning of the term ‘injury’. This is what was done in Peart’s Case…But since Slazengers’ Case…it is no longer permissible to reason in this way, and Peart’s Case must, in my opinion, be regarded as overruled. A case where the immediate cause of death is a coronary occlusion is unquestionably a death from disease.
Thus, Smithers J said 48 ALR at 441:
All this suggests that the attempt to link the death exclusively with any one of the events or combination of events following the atheroma, is unsound. And it is in this connection that the foregoing judicial comments are significant. They indicate that an event which is but a step in the progress of a disease is a disease. It is also an injury in the ordinary sense of that word, but if it is an injury which is a disease then it is only an injury for the purposes of s 27(1) of the Act if the employment contributed to it. Of course under the present definition of disease a work-contributed aggravation or acceleration of a disease is an injury within the meaning of s 27(1).
He continued at 443:
When, with respect to an event for example death, the question is posed whether that event resulted from a particular bodily occurrence, the question is not really answered by isolating one event in a chain of causation, albeit itself constituting an injury, and to say the event resulted from that injury. Really, it did not, if that injury was itself the result of a previous injury or the progress of an existing disease. In the sense relevant to the context in which the question is asked the only injury which resulted in the disability was that which transformed the employee’s body from a healthy body able to work to one in which, by reason of development of that initial injury or disease, the ultimate disability would or did result.
St John J reasoned shortly at 444-445:
The facts and the relevant parts of the Act are fully set out in the judgment of my brother Smithers. Except for s 29, the definition of “injury” draws a clear distinction between “injury” within the meaning of the Act, and the harm or detriment to the body or mind caused by disease. In its ordinary meaning “injury” is harm or detriment, however caused.
When the learned Commissioner described the formation of, and the consequences of, the thrombus as a “pathological injury”, he was expressing a contradiction in terms, having regard to the definition of “injury” in the Act. “Pathological” means pertaining to disease.
The matter should be remitted for consideration by the Commissioner of the respondent’s claim based upon s 29 of the Act.
Northrop J (in dissent) noted at 449 that in “its normal meaning the word ‘injury’ is apt to describe a discrete event occurring in the course of the progression of a disease.” He referred to Hume Steel and to the passages in Latham CJ’s judgment to which we have referred (and which Toohey, McHugh and Gummow JJ and Kirby J quoted in Zickar and which Gleeson CJ and Kirby J cited in Kennedy Cleaning), and to passages from the judgment of Dixon J in Hume Steel. Northrop J recognised the exclusionary effect of the definition of injury, but said there was a factual basis for the finding of injury, in the way reasoned by the Commissioner.
If Whillock stood unaffected by later authority, there would be a tolerably clear authority (at least for the 1971 Cth Act) for the propositions that injury and disease were distinct; that the latter could be within the former only if s 29 was satisfied; and that the somewhat fine distinctions involved in identifying separate events in the working out of diseases as injuries themselves, as was done in Hume Steel, should be rejected.
Then came the case of Van Reesch. After the argument, but before delivery of judgment, Zickar was handed down. Mrs Van Reesch had a back condition, which she did not disclose on being interviewed for employment. Her suffering that prevented her working was “a right S1 nerve root compression due to extended nucleus L5-S1”. The Tribunal dealt with her matter only by reference to disease and not injury. Treated thus, her non-disclosure was fatal to her claim because of a provision providing for the consequences of non-disclosure of pre-existing disease. Finn J, and then a Full Court (Northrop, Wilcox and RD Nicholson JJ), found error in the failure of the Tribunal to address the question of injury. (There was no disclosure provision about injury.) Wilcox J wrote the leading judgment. At 314, his Honour dealt with Whillock as follows:
There was a division in opinion among the members of the court in Whillock whether the myocardial infarction which killed the deceased was an injury or a disease. For present purposes, that difference does not matter. What is important is that it was accepted by all members of the court that the case had to be dealt with under s 27 if the evidence indicated that the death occurred as a result of a physical injury that was not part of a disease. The definition of “disease” was not read in such a way as to cover the field and exclude the notion of “injury” or the operation of s 27.
There is not a little difficulty, with respect, in reconciling the views in Whillock as Wilcox J did in Van Reesch 45 ALD at 314. It is unnecessary, however, to examine whether that expression of the matter adequately identifies the difference between the majority and Northrop J in Whillock. This is particularly so because of the decision in Zickar. At 315, Wilcox J noted:
Since the above reasons were written, the High Court has delivered judgment in Zickar …By majority, the court held that a rupture of a cerebral aneurism should be regarded as an injury rather than a disease. The actual result is in line with Northrop J’s dissenting view in Whillock but the decision is of limited assistance in relation to the interpretation of the 1971 Act. It turns on the definitions of “injury” in the Workers Compensation Act 1987 (NSW). However, the decision demonstrates once again that an “injury” may take the form of an event arising out of an autogenous disease. This was pointed out by Toohey, McHugh and Gummow JJ at 173:
But the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which the appellant relies. It may be accepted that the aneurism was an autogenous disease but the appellant’s claim to personal injury within para (a) is based on the rupture which occurred …If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon para …(b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.
Zickar, on one view, can be seen to be contrary to the views of Smithers J and St John J if they were expressing a view that one could not isolate an identifiable event (such as a rupture) connected with a disease (the aneurism), as an injury. A reading of the pellucid (if we may say so) discussion by Kirby J in Zickar 187 CLR at 340-344 of the course of authority from Hume Steel onwards makes this point clear, and undermines the explanation by Wilcox J in Van Reesch of the differences between the members of the Court in Whillock.
Northrop J in Van Reesch (of course, the dissentient in Whillock, but a member of the majority in Van Reesch) saw Zickar as crucial: 45 ALD at 307. At 305, Northrop J stated the following about ss 27 and 29 of the 1971 Cth Act:
As a result, a disease or its aggravation, acceleration or recurrence is deemed to be an injury if and only if there is the contributing factor between the employment and the disease or its aggravation, acceleration or recurrence. There is no similar limitation with respect to an injury. It follows that if an incident or event occurs to an employee which is not the inevitable consequence of a disease form which the employee is suffering, that incident or event may be a personal injury without any reliance on the definition of disease and of s 29.
At 307-308, he said the following about Mrs Van Reesch’s position:
From a consideration of the reasons for judgment in Zickar, it follows that the first matter that should have been determined by the tribunal in the present case was whether personal injury arising out of or in the course of her employment, was caused to Mrs Van Reesch. It may be accepted that there was evidence before the tribunal to support a finding that she suffered a disc prolapse described by the treating surgeon as a “right S1 nerve root compression due to extended nucleus L5-S1” arising out of or in the course of her employment with the commission during the week commencing 13 October 1986. To adapt the wording of Toohey, McHugh and Gummow JJ in Zickar, the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which Mrs Van Reesch relies. It may be accepted that her back condition was an autogenous disease but her claim to personal injury is based on the disc prolapse which occurred. There is evidence that the disc prolapse was not an inevitable consequence of the disease. The rupture, being the prolapse, has been treated. If there was no rupture there would be no event answering the description of personal injury and Mrs Van Reesch would be driven to rely upon the definition of disease and s 29 of the 1971 Act. But there was such an event and the presence of the disease does not preclude reliance upon that event as personal injury.
Zickar concerned the operation of the 1987 NSW Act and the definition of “injury” which was as follows:
In this Act –
“injury” –
(a) means personal injury arising out of or in the course of employment;
(b) includes –(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and
(c)does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
The minority plurality (Brennan CJ, Dawson and Gaudron JJ) examined the major authorities in England and Australia from Fenton v Thorley onwards, whilst recognising the importance of the words “by accident” in the early phrase “personal injury by accident”. Their Honours examined these authorities, especially Hussey, Ockenden, Kavanagh and Hornsby. They applied at 325 Hockey v Yelland, applying Favelle Mort and Slazengers. They made no reference to Hume Steel. They said at 326:
By judicial decision, the consequence of a progressive disease had been excluded from the cover of “injury by accident” if there were no cause of the consequence other than the progress of the disease. It did not matter that the consequence was gradual or was a sudden and distinct physiological change. If there were no underlying disease, however, a sudden and distinct physiological change could amount to “injury by accident” even though there were no external cause for the change. When liability was made to depend on a definition in the terms to be found in the 1926 Act – at least from the time of the insertion of the 1929 amendment – diseases and their consequences were removed from the category of “personal injury” in the opening words of the definition of “injury” and were covered exclusively by the forerunner or equivalent of the provisions now found in sub-pars (i) and (ii) of s 4(b) of the 1987 Act.
(Emphasis added.)
With respect to Wilcox J in Van Reesch at 314, the above statement of the minority plurality clearly reflects the approach of Smithers J and St John J in Whillock. See also Kirby J in Zickar in the passages to which we have already referred.
The majority plurality (Toohey, McHugh and Gummow JJ) did not consider that Hockey v Yelland or any previous authority prevented the appeal being successful. Crucially, however, at 330, in the context of the 1987 NSW Act and their view that its structure was different from the 1926 NSW Act, their Honours rejected the existence of the rule of construction that the Privy Council had applied in Slazengers. In that respect, they agreed with the strongly expressed doubts of Barwick CJ in Favelle Mort. Such rejection undermined the approach, not only of the Privy Council in Slazengers, but of the Court in Favelle Mort and Hockey v Yelland on the 1926 NSW Act and the equivalent Queensland provision. (Their Honours saw Hockey v Yelland as confined in its reach to the context of error on the face of the record: Zickar 187 CLR at 332-333.) Their Honours distinguished between the natural progression of a pre-existing morbid condition or autogenous disease and claims arising from injuries being identifiable “events” (at 334) such as the rupture of an aneurism or of an oesophagus, or the breaking of an artery. Importantly, their Honours (at 332) quoted the passage from the judgment of Latham CJ in Hume Steel set out in the last paragraph of the extract at [44] above, as well as (at 335) the following passage in the judgment of Murphy J (with whom Crockett and Cummins JJ agreed) in Accident Compensation Commission v McIntosh [1991] 2 VR 253 at 262:
If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur.
The majority plurality had earlier said at 334:
If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.
Kirby J (187 CLR at 345-351) squarely confronted Slazengers, Hussey, Favelle Mort and Yelland v Hockey and said they were wrong.
The utilisation by the majority plurality and Kirby J in Zickar of Hume Steel must be taken to negate any overruling of Hume Steel by Slazengers.
Further, not only was Hume Steel revived by Zickar, but also the majority plurality and Kirby J approved of McIntosh [1991] 2 VR 253, which itself was based in part on Hume Steel. There Murphy J said the following at 257:
It has always been accepted in Victoria that any ascertainable lesion or dramatic physiological change causing incapacity and occurring during a protected period is an “injury” within the meaning of the Works Compensation Act (Vic).
In Willis v Moulded Products Sholl J said, at p. 70: “I do not myself see why under the Victorian Act, a defined, separate, and observable step in the progress of a disease (occurring during a protected period) should not, if it produces incapacity or death, be compensatable.”
A little later (at 258) Murphy J referred to Darling Island Stevedoring and Lighterage Co Ltd v Hankinson [1967] HCA 10; 117 CLR 19 where the distinction was drawn between the suffering of a disease of the spine and a “dramatic event at work…through the collapse of [the] spinal vertebrae”.
Whilst we have not yet dealt with the SRC Act, the above makes clear, in different legislative frameworks, that the notion of injury, subject to specific statutory context, can be seen to include the kinds of considerations discussed by Latham CJ in Hume Steel, as well as events or physiological changes that have a relationship with disease, but cannot be said merely to be the natural progression of an autogenous disease.
It should be noted that the decision in Zickar prompted the New South Wales Parliament to introduce s 9A into the 1987 NSW Act, subs (1) of which read:
No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
For a discussion of s 9A see Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503. No such provision has been introduced into the SRC Act. For recent recommendations in this regard, see the report of Mr Hanks QC reviewing the SRC Act: “Safety, Rehabilitation and Compensation Act Review, Report – February 2013” (Commonwealth of Australia 2013) at 44-46 [5.66]-[5.83].
The SRC Act (as the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth)) repealed the 1971 Cth Act.
The Minister’s Second Reading Speech (Commonwealth, Parliamentary Debates, Senate, 24 May 1988, 2767-2770 (Senator Tate)) made it clear that one of the central purposes of the new Act was to establish “a more equitable and cost-effective compensation system, with particular emphasis on the rehabilitation of injured employees”. These remarks were made against the backdrop of the Minister decrying, in the second sentence of his speech, the more than 700% increase in the expenses associated with Commonwealth workers’ compensation over the 1976-1986 period. The Minister then went on to make specific observations about the disease provisions:
Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.
In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease. A disease which has been contributed to in a material degree by employment will be deemed to be an injury. Compensation will be payable if that injury results in the death, incapacity or impairment of the employee.
A number of misunderstandings and misdirections appear in this passage. First, on the authorities to which we have referred, and the proper construction of “injury” in s 4, there is no basis for the distinction made by the Tribunal between evidence of what it calls “symptoms” and the need for a “diagnosis”. As part of the statutory question, one asks 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. There is no warrant from the statute or the cases to require diagnosis or medically ascertained cause.
Secondly, even if there was – as the Tribunal put it – a need for “physiological evidence, pathology or a known diagnosis”, the Tribunal itself had made a finding (at [48] of its reasons) that the condition the appellant found “the most disabling” was vertigo. There is no other way to read [48] of the Tribunal’s reasons than that it accepted, as a matter of fact on the evidence and material before it, that the appellant suffered from vertigo at the time of its review. The Tribunal repeated the substance of that finding at [65] of its reasons where it stated that the appellant’s other conditions (gastroenteritis and upper respiratory tract infections)
…appear to have been transient and the current cause of his incapacity appears to be what we have described as vertigo, an illness the symptoms of which appear to be ongoing.
Given these findings by the Tribunal (and putting to one side their unnecessary characterisation by the Tribunal as “symptoms”) the question the Tribunal should have asked and answered was (in the light of the finding of the onset of vertigo and of all relevant material) whether the appellant suffered an injury, without seeing as essential preconditions a formal diagnosis or objective medical evidence corroborating the physiological changes reported by the appellant. The requirement for objective medical evidence and diagnosis misdirected the enquiry for substantiating material and tended to raise a requirement for an identifiable event or incident or cause that had a connection (of more than a temporal character) with employment.
Thirdly, neither the terms of s 4 of the SRC Act, nor the authorities, preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion. Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case. The error in the Tribunal’s reasoning process at [52] was to proceed on the basis that a claimant’s account could never suffice to establish an injury.
The error in seeing objective medical evidence as necessary before an “injury” within s 4(1) could be found was perpetuated by the Tribunal’s statement at [59] of its reasons that:
The Tribunal accepts that objective evidence of a swollen tongue or dizziness would be evidence of physiological change…However there is no objective evidence of Mr May’s swollen tongue or dizziness or pathology to support his account of his symptoms.
This passage does not indicate that the Tribunal did not believe the appellant. Reading its decision as a whole, it is clear it accepted him as an honest witness, and an accurate historian of the changes he experienced in his own physiological functions. Nor do these passages suggest, contrary to the respondent’s submissions, simply a weighing of evidence by the Tribunal. The Tribunal is, we consider, instructing itself that it cannot find an “injury” for the purposes of s 4 without corroborating understood pathology or medical opinion.
Again at [61], the same erroneous approach is taken, where the Tribunal states:
With regard to what we have loosely described as Mr May’s vertigo, which is the condition which is the principal cause of Mr May’s current disability, once again there is no objective evidence of him suffering from this condition in the period following his vaccinations and there is no substantial pathology to explain the symptoms which he now experiences, as discussed above.
This focus on the lack of pathology, aetiology or diagnosis which the Tribunal emphasises again at [62] and [66] of its reasons, illustrates the Tribunal’s misconception that it needed to be satisfied of an appropriate clinical diagnosis of the physiological disturbances the appellant reported before it could find he had suffered an “injury” within s 4(1).
This focus on the need for an appropriate clinical diagnosis reflects a tendency to elevate a requirement for one kind of proof (medical opinion) over reasonably founded lay common-sense inference that is not scientifically derived, but drawn from the plain sequence of events. In Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 Rich ACJ said the following at 563-564:
In my opinion the conclusion of the Full Court is correct. I am greatly impressed by the sequence of events. The deceased, who had arrived at an age when arterio-sclerosis and atheroma afflict mankind, was a stevedore's labourer. On the day of his death he climbed up the jib of the crane and lay prone on the crane with his arms outstretched, trying to replace a wire which had come off the gin. He failed to do so, returned to the deck and for some time, with his arms in a position raised over his head, helped in holding up a wire rope. Immediately after performing this task he collapsed. What weighs so much with me is the fact that he was brought to a standstill, as an ordinary lay observer would think, by the exertion he had undergone: cf. Partridge Jones and John Paton Ltd. v. James. I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences. The conclusion of the special magistrate may prove to be in advance of its time, but, as matters stand, I prefer that of the Full Court.
At 569 in the same case Dixon J said:
First, I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.
These statements have been often applied: in such cases as Tubemakers of Australia v Fernandez (1976) 50 ALJR 720; 10 ALR 303 at 307, 310-311, EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 241; Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 at 61-62 [69]; Tabet v Gett [2010] HCA 12; 240 CLR 537 at 588 [149]; Australian Iron and Steel Ltd v Connell [1959] HCA 54; 102 CLR 522 at 535-536 [6]; Allianz Australia Ltd v Sim [2012] NSWCA 68 at [48]; Evans v Queanbeyan City Council [2011] NSWCA 230; Webb v Repatriation Commission [1988] FCA 127 at [18]; Australian Telecommunications Commission v Barker [1990] FCA 489; 12 AAR 490 at 493-494; Major Engineering Pty Ltd v Timelink Pacific Pty Ltd (No 2) [2009] VSCA 83 at [19]. It is also the point made by Latham CJ in Hume Steel: 75 CLR 242 at 252.
Once one appreciates the presence in the reasoning of the Tribunal of the need for objective clinical evidence (in effect a satisfactory medical diagnosis) apart from anything else, one can readily understand the refusal to draw the link from the vaccinations to the condition suffered. The appellant only identified and argued errors going to the analysis of injury arising in the course of employment. Those errors have been demonstrated. Thus, it is not appropriate to comment further on the Tribunal’s refusal to find a causal connection between the vaccinations and the condition, that is arising out of employment. As we discuss below, the matter must be remitted to the Tribunal. On that remitter, the whole question of what the evidence reveals (whether injury, and whether arising out of or in the course of employment) will need to be examined. A correct focus for the examination of all the evidence will be important, not being a focus requiring clinical diagnosis or known pathology as a pre-requisite to the finding of injury, or whether it arose out of or in the course of employment, as opposed to another focus (more in accordance with Forst) as to whether the medical evidence denied any inference that might be thrown up by the sequence of events.
Further error: the Tribunal looked unnecessarily for more than a temporal link
We have set out at [202] above the Tribunal’s statement of the issues at [5]-[7] of its reasons.
It can be seen from those paragraphs that when dealing with the appellant’s claim for injury arising in the course of employment the Tribunal’s reasons apprehended the need for a causal link to employment of some kind (beyond the temporal in “in the course of”). In [7] of its reasons it is apparent that the Tribunal was searching for a causal link between (at least, read in conjunction with its later findings) the appellant’s vertigo, and the vaccinations he was given after joining the RAAF.
That this was the task it considered it needed to undertake is made clear by the Tribunal’s statement at the start of the “Discussion” part of its reasons (at [48]-[49]) that:
…Yet, in the Tribunal’s view, there is no medical evidence to establish a connection between Mr May’s vertigo and the vaccinations he received while in the RAAF.
It is the causal connection between the vaccinations Mr May received and the reaction Mr May claims to have suffered following the vaccinations which is the critical issue in this case...
At this point in its reasoning process, it is apparent that the Tribunal’s reasoning is miscarrying. The authorities place beyond doubt the proposition that for injury to arise in the course of a person’s employment (as distinct from arising out of employment) there is no requirement for a causal link between the employment and the injury – beyond the temporal one: Kavanagh 103 CLR at 555-557, 558-560, and 569-572. There was no debate that the appellant was required to undergo the vaccinations as part of his employment with the RAAF, that he underwent them during his employment with the RAAF, and that the physical effects he described in his evidence (which was not questioned) arose during performance of his duties as a member of the RAAF, and indeed some of them within 30 minutes of the vaccinations.
For example, at [19]-[21] the Tribunal records the extensive clinical evidence about the way the appellant presented to various air force doctors (which the Tribunal appears to accept as having occurred), including the Chief Medical Officer, and in these paragraphs the Tribunal records how the appellant experienced the physical effects of which he complained while performing flying and other duties:
On 25 February 1999, an unidentified doctor found Mr May was fit for a combat survival course…. There are further notes on his condition which had significantly improved by mid-October 1999. On 8 November 1999, Mr May was recorded as fit to return to full flying duties. On 7 December 1999, Mr May is recorded as having experienced sinus pain on descending from 12,000 feet to 2,000 feet in four seconds, which continued for some days, and following which he had a sore throat and then headaches, diarrhoea, nausea and abdominal discomfort. There follow other similar records.
For the purpose of deciding whether the appellant had suffered an injury in the course of his employment the Tribunal did not need to be satisfied of any more than that he suffered an injury during the “protected period of work hours”, without any further contribution from the appellant’s employment: see Kennedy Cleaning at [28] per Gleeson CJ and Kirby J.
The Tribunal adopted an approach which looked for some kind of explanation from, or causal connection to, the appellant’s employment to decide whether he had suffered an injury in the course of employment. At [59], and in the part of its reasons headed “Did Mr May suffer an injury simpliciter…”, it stated:
The Tribunal accepts that objective evidence of a swollen tongue or dizziness would be evidence of physiological change. Similarly, objective evidence of diarrhoea and upper respiratory infections would be evidence of physiological change, albeit that these conditions would ordinarily be considered ‘ailments’ in the context of the SRC Act. However, there is no objective evidence of Mr May’s swollen tongue or dizziness, or pathology to support his account of his symptoms. The only contemporary evidence is his description of a swollen tongue and dizziness to the doctors who subsequently examined him and recorded his description in their clinical notes. The Tribunal accepts that there is objective evidence of Mr May suffering from diarrhoea and upper respiratory infections. Diagnoses were made in respect of these ailments which were treated and subsequently resolved. Nevertheless, even if we were to accept, which we do not, that these ailments should be treated as the product of an injury simpliciter, there appears to be no objective evidence connecting these conditions with the vaccinations. More particularly, as is discussed below, there is insufficient evidence to establish that the ailments were contributed to in a material way by Mr May’s employment.
(Emphasis added.)
This passage is affected by the other errors of law we have discussed above. However, in the emphasised passage the Tribunal also erroneously looks for (as a requirement) contribution from the appellant’s employment.
Error by the primary judge
At [48] of his reasons, the learned primary judge described one of two elements in the AAT’s reasoning which he considered fatal to the appellant’s case.
First, the AAT was unable to find, to its own satisfaction, that Mr May in fact suffered from an injury within the meaning of s 14 of the SRC Act. His reported symptoms did not establish that fact to the satisfaction of the AAT.
With respect to the primary judge, for the reasons we have set out above, the Tribunal did make a finding about a condition the appellant suffered from: namely, vertigo. What it was required to do, but did not do, was to determine whether there was an injury, in the overall sense we have explained at [201]-[220] above. This aspect of the primary judge’s reasoning fails to identify the error in the Tribunal’s approach.
It is also not correct, in our respectful opinion, to characterise (as the primary judge did at [53]) what occurred in the Tribunal’s reasoning on the question of injury, as factual conclusions. Rather, the Tribunal proceeded on a misconstruction of “injury” in s 4, then applied that misconstruction to the facts as found by it which led it, erroneously, to decide that the appellant’s own evidence could not be sufficient. That misconstruction also led the Tribunal to impose restrictions and limitations not present in the statutory concept of injury: namely that there must be a clinical diagnosis, and supporting medical evidence. Further, these erroneous approaches also led the Tribunal to look for a causal link of a kind not required by the phrase “in the course of employment”.
The primary judge’s conclusions (at [76]) that “there was no legal error, arising from any wrongly decided questions of law or otherwise, which vitiates those findings of fact” cannot, in our respectful opinion, be accepted.
CONCLUSION
This was, as the Tribunal observed, a difficult case. It is appropriate in our opinion for another Tribunal, differently constituted, to consider again whether the appellant has suffered an injury within the meaning of s 4 of the SRC Act and whether the injury arose out of or in the course of his employment. It is not appropriate to remit other than the whole dispute for reconsideration. Given the Tribunal’s findings about the appellant’s vertigo, this matter comes close to a case where there may only be one answer. However, we accept that a differently constituted Tribunal, properly instructed about what needs to be established to come within the concept of “injury”, may take a different approach to significant aspects of the evidence, including the appellant’s accounts of what he experienced. Accordingly, we consider it more appropriate for a new Tribunal, rather than this Court under s 44(7) of the AAT Act, to determine the question.
Our conclusion on the appeal from the learned primary judge means that no consideration need be given to substantive orders under s 16 of the AD(JR) Act, or s 39B of the Judiciary Act. If we had dismissed the s 44 appeal on substantive grounds, then given the view we take about the overlap between s 44 of the AAT Act and jurisdictional, and non jurisdictional error, it may have been unlikely that the appellant would have succeeded on judicial review, even putting to one side issue and Anshun estoppel. Nevertheless there were costs associated with the further judicial review application that were necessitated by the position taken by the respondent. The application should be dismissed as unnecessary, but the appellant should have his costs of propounding the application.
Orders
We would make the following orders:
In the appeal (NSD 485 of 2014):
1.Leave be granted to the appellant to rely upon the amended notice of appeal filed on 15 October 2014.
2. The appeal be allowed.
3. The orders of the Court made on 30 April 2014 be set aside, and in lieu thereof order that:
(a) the decision of the Administrative Appeals Tribunal dated 14 December 2011 be set aside;
(b) the matter be remitted to the Tribunal for determination according to law; and
(c) the respondent pay the appellant’s costs.
4. The respondent pay the appellant’s costs of and incidental to the appeal.
In the further judicial review application (NSD 945 of 2014):
1. The time in which the applicant be permitted to file an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended to 15 October 2014.
2. The application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) be heard and determined by the Full Court of the Federal Court, together with the applicant’s appeal from the decision of the Court (Buchanan J) dated 30 April 2014.
3. The said application be dismissed, the first respondent to pay the applicant’s costs thereof.
I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop, Justice Kenny, Justice Besanko, Justice Robertson and Justice Mortimer. Associate:
Dated: 29 June 2015
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