Military Rehabilitation and Compensation Commission v May

[2016] HCATrans 45

[2016] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S243 of 2015

B e t w e e n -

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Appellant

and

BENJAMIN JAMES EDWARD MAY

Respondent

FRENCH CJ
KIEFEL J
GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 3 MARCH 2016, AT 9.59 AM

Copyright in the High Court of Australia

MR P.J. HANKS, QC:   Your Honours, I appear with MR P.G. WOULFE, for the appellant.  (instructed by Moray & Agnew Solicitors)

MR R.G. McHUGH, SC:   I appear with my learned friend MS B.K. NOLAN, for the respondent.  (instructed by Legal Minds)

FRENCH CJ:   Yes, Mr Hanks.

MR HANKS:   There are certain propositions which your Honours might find in front of you.   I have had to make one small hand correction, but that is on page 3 and your Honours will see that.  Homer was definitely nodding last night.

FRENCH CJ:   Perhaps you can just take a seat for a moment, Mr Hanks, and we will have a quick look at your outline.

GAGELER J:   Was the addition of red ink your innovation, Mr Hanks?

MR HANKS:   I will claim credit for that, yes, your Honour.

FRENCH CJ:   Yes, thank you, Mr Hanks.

MR HANKS:   The best place to begin is with the evidence before the Tribunal.  We refer to that evidence in paragraph 3 of the propositions.  If your Honours have the appeal book and go to page 13, at the bottom of the page, and continuing to page 17, paragraph 35, your Honours will see that the Tribunal there set out the evidence, some of it in the form of medical reports, some of it from Professor Loblay in the form of oral evidence given to the Tribunal about investigations carried out on the respondent.  Your Honours will see the evidence is there summarised and there is no dispute that the Tribunal got that right.  No one suggested that the summary was in any way inadequate.

Critically, we say, that none of the specialists could identify any pathological cause for the symptoms reported by the respondent.  None of them could find any evidence of abnormality in his body.  None of them could make what amounted to a diagnosis to explain those symptoms.  Dr Loblay, who is dealt with on pages 23 and 16 of the appeal book, expressed the opinion that the symptoms reported by the respondent could be characterised as a “functional somatic disorder”.  He also said that the symptoms reported by the respondent – and your Honours will see this on page 17 of the appeal book, in paragraph 35 – amounted to an illness, being a subjective description of his symptoms.

Dr Loblay and some of the other specialists who expressed opinions also addressed the separate question, namely, whether those symptoms had some causal connection to the vaccinations which were administered to the respondent at the beginning of his service in the air force and came to a negative conclusion on that.  But, as your Honours will understand, we say that that was a distinctly separate question.  The critical question for the Tribunal, a finder of fact, was whether the respondent had sustained an injury, in the sense in which that term is used in the SRC Act.

FRENCH CJ:   To the extent that the – you say to the extent that the Tribunal looked at the question of causal connection between vaccination and symptoms, that was an aspect of the determination of whether it was properly characterised ‑ essentially properly characterised as an injury?

MR HANKS:   No, I do not say that, your Honour.

FRENCH CJ:   No?

MR HANKS:   No, I say it is a separate question. The existence or otherwise of an injury – and I need to use the precise term used in the definition in the SRC Act – “an injury (other than a disease)”, with parentheses around the words “other than a disease” – the existence or otherwise of such an injury is a necessary step that must be undertaken by the fact finder before proceeding to the question whether there was a causal or perhaps a temporal connection between that injury and employment. That is because at the time the definition of injury in section 4(1) of the Act drew a very sharp distinction, we would say.

That is a distinction that has flowed through to the current Act. There has been a reorganisation of these definitions in the current Act, but at the time of a claim that was made by the respondent the definitions were in section 4(1). In the folder of authorities we have extracted the relevant provisions behind tab 19. If your Honours have that, your Honours will see in the extracted pages from that version, tab 19 – I am looking at page 6 of the print – and there is the definition of “injury”, reminding your Honours that the introductory words to subsection (1) are:

In this Act, unless the contrary intention appears –

and then we go to injury.  It means – and there are three alternatives separated by the conjunction “or”.  The first alternative ‑

a disease suffered by an employee; or –

second alternative –

an injury (other than a disease) suffered by an employee –

and then your Honours see the additional words, being –

a physical or mental injury –

and here is the connection with employment –

arising out of, or in the course of, the employee’s employment –

and the third alternative is aggravation.  Now, we need not go there, although the third alternative also continues the distinction, the sharp distinction between “disease” on the one hand and “injury (other than a disease)” on the other.  I should then draw your Honours’ attention to the previous page where “disease” is defined.  That is, if I can put it in its simplest terms:

an ailment suffered by an employee

. . . 

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a –

licensed corporation.  So, in our submission, it is necessary to bear in mind that the Act does draw a sharp distinction between “disease” on the one hand and “injury (other than a disease)” on the other hand.  Nothing could be clearer, we would say.

FRENCH CJ:   What I was really putting to you was I think what you say at 70 to 74 of your written submissions.  Perhaps I did not put it accurately.  That was that there was no error in the reference by the Tribunal to the absence of causal connection between vaccination and the symptoms.

MR HANKS:   No, that is so, your Honour, and I think I was – now that I understand what your Honour is putting to me, I was confirming that.  Thank you, your Honour.

FRENCH CJ:   That is good to know, thank you.

NETTLE J:   Mr Hanks, would a fully psychosomatic condition be a disease within the meaning of that definition?

MR HANKS:   Yes, we would say, yes, it could be.  It could be an ailment, your Honour.

GORDON J:   Ailment is defined.

MR HANKS:   Well, yes, it is defined and I can take your Honours there right away because that is back on page 2 of the print.  It is defined in a way that may not be particularly illuminating, your Honour.  It means:

any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

But to answer Justice Nettle’s question, we would think that the condition, or using the neutral term that you posited, would fit within that definition.  But the critical thing about an ailment ‑ which is essentially a disease – the critical thing is that according to the definition of “disease”, at the relevant time it must be one that was contributed to in a material degree by the employee’s employment.  So that there is a requirement – there was a requirement of a causal relationship between employment and the disease or the ailment, whereas if it is an injury other than a disease, the connection that is necessary may be either causal – arising out of – or temporal – arising in the course of.

One can readily see that in the case of what are sometimes called injuries simpliciter, perhaps an unfortunate attempt to reduce the number of words that one has to use, to paraphrase – but in the case of such a condition, an injury other than a disease, it will be enough that the injury is suffered during the period of employment, what is sometimes described in the cases as the protected period.  Now, that distinction, as we pointed out in our submissions, is continued in the current Act in separate sections which define “injury” and “disease”.

I do not need to take your Honours there, but section 5A defines “injury”.  Section 5B defines “disease”.  They can be found behind tab 20 in the folder of authorities.  As I say, I do not need to take your Honours there, but it is essentially the same fundamental distinction between “disease” on the one hand and “injury (other than a disease)” on the other, and there is also the distinction that in the case of “disease”, there must be a causal relationship, where in the case of “injury (other than a disease)”, it is enough that there is a temporal relationship in the alternative to a causal relationship.

GAGELER J:   Mr Hanks, this might be perhaps obvious but when we read the bracketed words in paragraph (b) of the definition of “injury” in the version of the Act with which we are concerned and see that it refers to “other than a disease”, the word “disease” there cannot pick up the entirety of the defined term, can it?  It must only be paragraph (a) of the definition of “disease” that gets picked up and read into that clause.

MR HANKS:   I feel that this is an important question and, therefore, I should try to understand your Honour’s proposition.  We are referring to paragraph (b) of the definition of “injury”.

GAGELER J:   I can restate it.  When paragraph (b) of the definition of “injury” refers to an “injury (other than a disease)” do we read it as simply meaning an injury (other than an ailment suffered by an employee)?

MR HANKS:   That is a shortcut.  I think that is right, your Honour, yes. 

GAGELER J:   Well, it is not just a shortcut.

MR HANKS:   No.

GAGELER J:   It is deliberately leaving out ‑ ‑ ‑

MR HANKS:   Yes.

GAGELER J:   ‑ ‑ ‑ paragraph (b) and the element of contribution referred to in the definition of “disease”.

MR HANKS:   We would not accept that, your Honour.

NETTLE J:   But if a man had a bad back and it were further injured in the course of, say, a tyre fitting, would that not be an aggravation of an ailment?

MR HANKS:   No, it might be, your Honour, but we would submit it would be more properly characterised as an injury itself.

NETTLE J:   It undoubtedly would be but why is it not also an aggravation of an ailment and, therefore, why is not Justice Gageler correct in saying that, in referring back to “disease”, one excludes paragraph (b)?

MR HANKS:   Can I put it this way, your Honour?  If it is an injury, you need go no further.  In substance, it is a distraction to then go down the path and ask whether we might also characterise it as an ailment.  It is clear that if it can be characterised as an injury, then its connection with employment is, in the alternative, either arising out of or arising in the course of – it is either causal or temporal.  The employment either contributes to the injury or employment is the setting in which the injury occurs.

NETTLE J:   So, what in the end is the discriminant?  An external cause, is it, rather than an endogenous cause?

MR HANKS:   In the example that your Honour has put to me, there would be an observable physiological change.

NETTLE J:   Yes.

MR HANKS:   In fact, you would have radiological evidence of the condition of the back prior to the incident.  You would have radiological evidence of the condition of the back ‑ ‑ ‑

NETTLE J:   So too, with diabetes.  There would be an observable physiological change but it does not mean it would be an injury.  It would just be an aggravation of the condition, would it not?

MR HANKS:   In our submission, your Honour, that would definitely be an injury. 

NETTLE J:   So, it is not enough just to find exacerbation or an instance of a physiological change.  It has got to be something else that divides it off from disease, does it not?

MR HANKS:   It must be something, that is true. 

NETTLE J:   As an external cause or something else, do you say?

MR HANKS:   No.  External cause is not the basis for drawing the distinction and that is what Kennedy Cleaning and before that Zickar tell us.  The cause can be internal.  But what one needs to have, according to those authorities – and these are the authorities that the Tribunal applied – is a sudden or observable physiological change in the normal functioning of a body or its organs.  Some of the formulations use those terms cumulatively but most of them use them in the alternative.

FRENCH CJ:   We are not just talking about an injury here, are we?  We are talking about an injury other than a disease.  In other words, we are carving out of the genus injury the subset, which is pretty substantial, disease.

MR HANKS:   Yes, we are.

FRENCH CJ:   If you take the ordinary meaning of, say, physical damage to the person or loss or harm to the person, the ordinary meaning of “injury” that will potentially encompass a wide range of things we would also characterise as diseases.

MR HANKS:   Yes, your Honour.  The Act requires us to carve that out.  I should have taken your Honours first, of course, to section 14 which is the liability provision.  Section 14 – here it refers to the liability of Comcare but there are other provisions that transfer that liability in certain circumstances to bodies such as our client, the Commission:

is liable to pay compensation . . . in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

So, that is the liability provision. It uses the term “injury”. You go back to section 4(1) for the definition of “injury” and that is where you get the separate components. We say, they are not only separate but they are intended to be distinct. Nothing, in our submission, could be clearer because the parenthetical words in paragraph (b) make it clear that you take out of the concept of injury, in this setting, in the definition, you take out of that the concept of disease. So, there must be a way of marking out what is a disease from what is an injury.

FRENCH CJ:   What is a disease from what is an injury other than a disease.

MR HANKS:   Thank you, your Honour, yes, or, to use the clichéd formulation, an injury simpliciter.  That is the distinction ‑ ‑ ‑

FRENCH CJ:   Not that simpliciter makes it any simpler.

MR HANKS:   That is the distinction that the Act requires, and if you go back to cases like Zickar and Kennedy Cleaning, looking at the compensation legislation that was in issue in those cases, one can see a similar distinction but not drawn as sharply as in this Act.  I will come to those cases shortly but the idea that there is a distinction between an injury on the one hand and a disease on the other, is reflected in those cases. 

As we have said, and indeed this is acknowledged by the Full Court in the present case, Chief Justice Latham said in Hume Steel v Peart that according to the ordinary use of language, there is a difference or a distinction between being hurt and becoming sick and, in our submission, that is very much the distinction that provides a foundation in the ordinary use of language for the definition that we see in section 4(1) of the concept of injury.

NETTLE J:   Well, that distinction sounds very much like the distinction between an exogenous and an endogenous cause, does it not? 

MR HANKS:   Yes, your Honour, yes.

NETTLE J:   Yet you resist the idea that in order to be an injury, it must be caused externally.

MR HANKS:   I must resist that because I am told by majority judgment in Zickar, majority judgments, four of the seven members of the Court, that it does it not matter that the cause is some underlying condition and all members of the Court in Kennedy Cleaning endorsed that proposition.  Your Honours will recall that in Zickar, which is behind tab 2 in the authorities, your Honours, all members of the Court accepted that ‑ for example, take the minority, that injury involved a sudden and distinct physiological change ‑ there, the point of departure from the majority in that case was that that change, if you go back to Justice Nettle’s question to me, necessarily would have to have an external cause.  You could not have a cause from inside the body whereas the majority Justices said, no, that is not right, it can be an internal cause.

A person who suffers a rupture of an organ in the body which is sudden is just as much injured as a person who breaks her or his arm and it matters not that the foundation for the rupture is some underlying disease that the person contracted years ago.  The fact that the rupture happens in the course of employment is sufficient to constitute an injury in the course of employment.

GAGELER J:   Did the legislation in that case contain the same distinction as in the present case?

MR HANKS:    Well, let us go back, if I could, your Honour, to – I am going back to Zickar, I am going to page 314 and to the definition that appeared in section 4 of the Workers Compensation Act (NSW):

‘injury’ –

(a)      means personal injury arising out of or in the course of employment;

(b)      includes –

so we have got a “means” and “includes” construction here –

(i)     a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor –

You have a distinction, it is perhaps less sharp than the distinction found in the SRC Act we would say, but a distinction between personal injury which can arise out of or in the course of employment, on the one hand, and disease contracted in the course of employment to which employment was a contributing factor.  So, there is a double requirement for disease, a cumulative requirement ‑ ‑ ‑

GAGELER J:   There it was “injury” means an injury excluding – including a disease, that was that Act.  Here, you have been at pains to tell us that “injury” means an injury excluding a disease.  The critical distinction that you are relying on in the present case was not present in Zickar.

MR HANKS:   Well, in our submission, the distinction – the critical distinction reinforces the argument that we put, namely, that under the SRC Act it is necessary to identify these distinct phenomena.  One is a disease and the other is an injury other than a disease.  The reason why it is necessary to do that is that the Act posits different connections with employment.  That is the reason, and I have already put our submission on that, but that is, we say, obvious from the language in the definitions of “injury” and “disease”.

FRENCH CJ:   What is the reason for those different connections?

MR HANKS:   Is your Honour asking me that question as a matter of policy?

FRENCH CJ:   Yes, what is the legislative – do we know the legislative purpose served by those different connections?

MR HANKS:   We know the result.

FRENCH CJ:   We know the result, yes.

MR HANKS:   Can we not assume that the result is deliberate?  Mr Woulfe reminds me of something that your Honour wrote with Justice Stone in the Full Court matter of Canute.  It actually explores a slightly different question but the case is behind tab 9 in the folder of authorities.  It goes under the name of Comcare v Canute.  It was paragraph 67 that we had in mind.  As I read that paragraph – Mr Woulfe has also drawn my attention to the preceding paragraph which sets out an extract from the second reading speech on the 1988 Bill.  So, your Honours can see at the beginning of the extract at about point 3 on page 249 there is at least what appears to be the policy explanation behind requiring this distinct causal relationship in the case of disease whereas a temporal relationship would be sufficient in the case of injury.

So the concern was that the Commonwealth was frequently being held liable to pay compensation for diseases which had little, if any, connection with employment.  So, the solution, the remedy, is articulated then in the balance of that extract from the second reading speech.  Then further down the page the second reading speech – I am sorry, I withdraw that, your Honour.

Further down the page in paragraph 67 your Honour the Chief Justice and Justice Stone described what the consequence of the particular requirement for a material contribution was in that setting.  So, we say simply it was intended to be and has operated as a limitation on the liability in section 14 of the Act where what can be diagnosed is not an injury other than a disease but only a disease.  Now, if we go back to the way the Tribunal dealt with this matter, and I am now going to proposition 5 in the sheet that I handed to your Honours.

GORDON J:   Before you do that, Mr Hanks, could you answer one question for me and that is this.  Where do we find either in the Tribunal’s reasons or in the subsequent decisions proper articulation and identification of what the actual injury was said to be?  I ask that for this reason; it seems to change.  At some point it is nauseous, gastroenteritis, at some point it is vertigo, what is the actual injury that we are being asked to determine by reference to this statutory test?

MR HANKS:   The nausea and the gastroenteritis resolved, your Honour.  As we understand it, the injury that the respondent asserted before the Tribunal was ‑ a currently incapacitating condition ‑ vertigo. 

GORDON J:   The reason why I ask is because in section 6A of the SRC Act there is a mechanism, is there not, where you can, in effect, have a delayed reaction or delayed injury arising out of or in the course of employment?

MR HANKS:   That is so, in the case of injury, yes, which in that context would include a disease. 

GORDON J:   Would include a disease because of the definition?

MR HANKS: Indeed. The term that is used in section 6A is injury so we go back immediately to section 4(1) to the definition of “injury” and the alternatives that are posited there and one of those alternatives is “disease”, the other one “injury (other than a disease)”. So, what one could do in that circumstance, using section 6A ‑ take the respondent’s case, he received medical treatment, and an unintended consequence of that treatment was that he suffered an injury, vertigo. Then, that injury is taken to have arisen out of or in the course of the employment.

Now, there are difficulties with this formulation, as your Honour can, I am sure, see, that the formulation assumes that one is talking of injury other than a disease, but the subsection uses the term “injury”.  But putting that difficulty on one side, what one needs for this to operate is the finding of a consequence, unintended consequence of the treatment that the person has suffered an injury.

The findings of fact made by the Tribunal here preclude such a finding.  The Tribunal accepted the medical evidence that the vertigo could not be attributed to, was not caused by, was not a consequence of the vaccinations.  Justice Gordon, have I answered your Honour’s question?

GORDON J:   I think so.

MR HANKS:   There was a stage at which ‑ one of the matters that was to be agitated in the Federal Court was section 6A but my understanding is that it did not proceed anywhere.  It fell away, possibly because of the distinct findings of fact made by the Tribunal as to the absence of any consequential effect of the vaccinations. 

GAGELER J:   I am sorry to go back to this, Mr Hanks, but do you say Zickar, decided under the 1987 NSW Act would be decided the same way under the 1988 Commonwealth Act?

MR HANKS:   To answer your Honour’s question we need just to drill down a little bit.  Zickar was decided in a way that established liability in the employer, unless I am mistaken.  Let us see.

GAGELER J:   I do not need to detain you, but perhaps you could just take it on notice.

MR HANKS:   I can answer it now.  The conclusion of the High Court was that the findings of fact that had been made were sufficient to establish liability.  As we understand it, that is because the exclusion of liability on the basis that the cerebral aneurysm was the product of an underlying disease –the attempt to exclude liability on that basis failed, for the majority.  For the minority, the Chief Justice and Justices Dawson and Gaudron, it would have succeeded.

So, coming to our situation, we think that ‑ to take another example or an illustration really ‑ if we were to look at the case of Australian Postal Corporation v Burch, which was decided under the SRC Act and which was a Full Federal Court judgment, it is remarkably succinct.  It runs to perhaps six pages and in a similar factual setting ‑ this is a person who suffered a stroke at work ‑ the Full Court found that there was an injury occurring in the workplace.  Your Honours, you have to be a little careful about the multitude of different authorities, set in different legislative contexts, but your Honours may recall that the judgment of Justice Murphy, speaking for the Full Court of the Supreme Court of Victoria in the case of McIntosh, was influential in that case of Burch, just as it has been influential in Kennedy Cleaning and Zickar.

NETTLE J:   The interesting thing about that was that it was an external cause that was relied upon as the discrimen of injury in Justice Murphy’s judgment.  Somewhere in Zickar it is extracted.  I forget where reference is made to it; you will know.

GORDON J:   I think it is on page 335 of Zickar, at the foot.  There was a general agreement that some external agency precipitates a rupture.

MR HANKS:   Of course, but that is only the beginning of a proposition from McIntosh.  McIntosh is behind tab 7.  If your Honours go to page 262, in the middle of the page:

Everyone appears to agree that if some external agency precipitates the rupture, it is a physical injury ‑ but by some line of reasoning –

and plainly this is not a line of reasoning that Justice Murphy has endorsed, but he says ‑

(obscure to me) it is suggested that, if the precipitating factor cannot be identified, or is not identified, or is found not to exist, the rupture ceases to be a physical injury.  How or why this is said to occur is not made clear.

And then further down the argument – I will go to the second sentence:

I have the utmost difficulty in accepting such a proposition –

he has just articulated –

If the rupture is due to blood pressure, arteriosclerosis . . . or any other congenital or diagnostic aetiology, it is nonetheless a rupture ‑ something quite distinct from the defect, disorder or morbid condition, which enable it to occur.

We would submit to your Honours that his Honour was clearly accepting that, if the cause is internal, it will nevertheless be an injury.

GAGELER J:   You accept what is there said as applicable to this legislation?

MR HANKS:   It is well established, your Honour, established in various settings under the Victorian legislation, under the New South Wales legislation, the ACT legislation:  I am referring to McIntosh, Zickar, Kennedy Cleaning.  And we put to your Honours that it is also established under the SRC Act that if you have an event of that kind, it constitutes an injury other than a disease and it is enough that it occurs in the course of employment.  There is a Bill currently, although it has been current for more than 18 months, I think, before the Federal Parliament to adjust something, to adjust this connection with employment but as the law currently stands, that is it.

NETTLE J:   Would an identifiable psychiatric injury suffice also, that is to say, a psychosis?

MR HANKS:   Maybe not, your Honour, it depends what brought it about.  It might.  It might be a sudden or identifiable physiological change or ‑ ‑ ‑

NETTLE J:   You say it must be a physiological change?

MR HANKS:   No, I think that is not critical.  The formulation that is used does accept that it may also be some psychological effect, so to take post‑traumatic stress disorder which is commonly identified as the consequence of the exposure of the individual to a particular event that is life threatening – I am putting it in crude terms – which then has certain clearly established symptoms, that they are all part of the diagnostic criteria, as your Honour may recall.  So, to take that as an example, that could well qualify as an injury.

NETTLE J:   Because it is recognised in DSM4 and DSM5, is that the reason?

MR HANKS:   No, because it is sudden or identifiable.  It is a change that affects – now, I am using the term “body” here in the sense that includes the brain.

NETTLE J:   Well, take this man; there has been a sudden identifiable change in his behaviour which is said to be psychosomatic, in other words, psychological.  You exclude it.  Why?  Because it is not recognised as a recognised psychological condition?

MR HANKS:   Because it is nothing more than the reporting of symptoms first and, secondly, because on the distinct finding of fact made by the Tribunal there was no material contribution from employers.

NETTLE J:   Well, you say it does not have to be a material contribution, we have gone down there.  It does not have to be externally caused you say in order to be an injury.  It has to be recognisable or sudden and recognisable in the sense you say that it is recognised by orthodox medicine as being a condition.

MR HANKS:   That is right.  Yes, indeed, your Honour, and that is a better answer.  That is our answer to your Honour’s question and we ‑ ‑ ‑

NETTLE J:   Well, it is recognised by orthodox medicine as being a psychosomatic condition.  Why does that not qualify? 

MR HANKS:   Can I put it another way?  Recognised by those medical experts who have examined the question in relation to this person, not as a matter of theory who have examined this person, as an observable consequence, an observable phenomenon, and here, as your Honour will have noted from the evidence that is set out by the Tribunal and I referred earlier to that evidence, none of the specialists ‑ 10 approximately ‑ who examined the respondent could make a diagnosis, could identify any pathology or could come up with any explanation for the symptoms that he experienced other than Dr Loblay’s proposition that it was a somatic disorder.

GORDON J:   A functional somatic disorder.

MR HANKS:   Functional somatic, I am grateful, your Honour, yes, and that is the important qualification.

GAGELER J:   You described it earlier as vertigo.  Is there a definition of “vertigo” somewhere in the evidence?

MR HANKS:   It is a dizziness and minor loss of balance, I think.  Those were the matters that were reported by the respondent.  Your Honours will see that he – at least according to the Tribunal – and we, again, necessarily assume that this was accurate – made a claim, on page 5 of the appeal book, and the conditions which he identified in the claim were:

low immunity, fatigue, illnesses, dizziness –

caused by the vaccination.  That was the terms in which he made the claim.

FRENCH CJ:   Does the term “functional somatic disorder” – that is consistent with something other than what one might call psychosomatic condition?

MR HANKS:   The adjective “functional” marks it out – yes, your Honour. 

NETTLE J:   Marks it as what - affecting functional operation?

MR HANKS:   No, your Honour.  As reported by the individual but something that cannot be identified by those who have examined the individual as having any basis.

FRENCH CJ:   Well, it is real in terms the symptoms are accepted as real.

MR HANKS:   Yes.

FRENCH CJ:   They are being experienced by the individual.

MR HANKS:   Yes.

FRENCH CJ:   What is unable to be demonstrated is a physical basis for those symptoms but that does not mean that one does not exist.

MR HANKS:   That is right, your Honour.  That is why – if I might put it as follows – that is why the Tribunal, as we understand it, accepted the evidence of Dr Loblay which is set out on page 17 of the appeal book in paragraph 35.  Your Honours see the full paragraph there and, in particular, his description in paragraph 35 of the:

condition as an “illness”, being a subjective description of his symptoms.

So, there are a number of propositions that came out of that evidence from Dr Loblay but that is a central proposition and, as becomes apparent ‑ ‑ ‑

GAGELER J:   Dr Loblay’s definition of “illness” is not the same as the statutory definition of “illness”, is it?

MR HANKS:   Well, that would not be surprising.  He is a medical specialist.

GAGELER J:   I am just wondering what we make of this evidence.

NETTLE J:   He establishes in spades it has no physiological cause but you say that is not required in order to be an injury - for example, PTSD you accept is an injury but that does not have a physiological cause either ordinarily.

MR HANKS:   No.

NETTLE J:   What is the difference, what is the discrimen between that sort of injury and what this man claims to be an injury?

MR HANKS:   It may be that PTSD is not quite as simple, your Honour.  It may be that – this is somewhat contested territory but it may be that there are changes in the brain which are observable.

NETTLE J:   It is still speculated about, is it not?  No one has yet established that? 

MR HANKS:   No, but in the case of PTSD there is a distinctively – there is an accepted ‑ ‑ ‑

NETTLE J:   External cause.

MR HANKS:   External cause but obviously the fact that it is an external cause does not disqualify it.  It makes it relatively clear.

NETTLE J:   A fortiori, you would say.

MR HANKS:   We would, yes, it makes it relatively clearer but there is that observable event which is supported by reputable medical opinion as the initiation of the disorder which is consequential upon that event.  So that there is a distinct change.  It has to be described as a distinct change to the brain rather than another part of the body.  What do we have here?  That is the question.  We have a series of investigations that can find no such change, can find no pathology, can make no diagnosis.  We have a suggestion from Dr Loblay that there are a set of symptoms.

NETTLE J:   Which it is found he is not putting on.  He is actually experiencing them.

MR HANKS:   Quite so, he genuinely believes he has those symptoms.  That is on the findings of fact made by the Tribunal.  He is not malingering.

NETTLE J:   Does that not mean his brain is not somehow malfunctioning, otherwise why would he experience them?

MR HANKS J:   Let us assume that that be so.  The next question is how do we characterise it and do we characterise that as an ailment or do we characterise it as an injury other than a disease?  It is clear that the Tribunal came to the conclusion that it did not fall into the second category.  The next question is whether in coming to that conclusion the Tribunal asked itself the right question or the wrong question.  We can put it as simply as that. 

What the Tribunal did ask itself, well, in a sense it was a double question, applying Zickar and Kennedy Cleaning, the Tribunal looked to see whether there was a sudden or identifiable physiological change in the normal function of the body.  Then, it asked itself what does the medical opinion given in this case, the unopposed medical opinion tell us as the Tribunal about this phenomenon? 

The Tribunal relied, we say, on those two factors.  It could find no evidence of the change in the normal function of the body, an observable or sudden change and then overlapping with that, because in the sense this was one of the reasons for that conclusion, the Tribunal referred to and relied on the medical evidence that there was no such change.  There was no pathology, no diagnosis, no abnormality, according to the barrage of tests that were administered to the respondent.

KIEFEL J:   But was there not a sudden physiological change when he reported that vertigo started on the day after being vaccinated?  That appears at paragraph 27 of the Tribunal’s decision.

MR HANKS:   That is what he reported, your Honour, but the question is whether that was real.  I mean, did that exist, did that physiological change exist?  The Tribunal, in our submission, was entitled to have regard to the medical evidence placed before it when it answered that question of fact.  The medical evidence did not support such a change.

KIEFEL J:   Well, is that exactly correct?  The medical evidence or medical science such as it is today cannot attribute a cause to it but neither the doctors nor the Tribunal denied the fact of the symptom, though, did they – the fact of the condition?

MR HANKS:   No, they did not deny his reports of experiencing vertigo.  That is true.

KIEFEL J:   Therefore, he had vertigo – for which no cause ‑ but that does not stop it being a sudden onset following upon the vaccinations.  They might not attribute it to the vaccinations but there is a sudden onset involving his body in a physiological change. 

MR HANKS:   Can we go back to what it is the Tribunal must do, what its responsibility is?  The Tribunal is the fact finder.  It has before it the evidence given by the respondent.  It has also the evidence in the form of the many medical reports and the oral evidence given by Dr Loblay.  It has all of that and on the basis of all of that evidence it has to make a finding of fact. 

Now, that finding of fact which is required by the Act is, has this man sustained or contracted a disease, an ailment, or has this man suffered an injury other than a disease?  The Tribunal then said in making that decision of fact we will proceed on the basis that an injury other than a disease has particular characteristics, which we take from Zickar and Kennedy Cleaning.  We do not find, we cannot find the change of that kind, a phenomenon of that kind in the evidence before us.

KIEFEL J:   But the question for the Tribunal is not, is it, whether medical science can attribute a cause to a condition?  It is whether it qualifies as a hurt?

MR HANKS:   An injury other than a disease, that is the question.  That is the fork in the road, if I can put it that way.  If you take that fork, then it will be enough that it manifests during a period of employment.  That would be sufficient.  If you cannot take that fork, if you cannot characterise it as an injury other than a disease then you need to find the material contribution ‑ ‑ ‑

GAGELER J:   Do we characterise the Tribunal’s decision as having accepted as a primary fact that Mr May experienced dizziness at a relevant time?

MR HANKS:   We do.  As a primary fact, the Tribunal accepted his evidence that he experienced dizziness. 

GAGELER J:   Accepting evidence is not a primary fact but it accepted as the fact that he became dizzy.

MR HANKS:   I agree.  I was not trying to evade your Honour’s question.

GAGELER J:   Not just that he thought that he was dizzy but that he was dizzy. 

MR HANKS:   I think it is very difficult to separate those two, to be honest.

FRENCH CJ:   Or he experienced dizziness.

MR HANKS:   Very difficult.  The difficulty is that it is the report of the symptoms that supports any finding and nothing else.  So, in a sense, he genuinely thought he was sick, yes.

FRENCH CJ:   Well, the experience of the symptoms is a fact that is locked in because of the constraints of section 44 and so forth.

MR HANKS:   Yes.

FRENCH CJ:   We are working on that basis.

MR HANKS:   Quite.  So of course we say that that is not the only thing that is locked in.

FRENCH CJ:   No, I appreciate that.

MR HANKS:   But I appreciate what your Honour says.  So, yes, experienced the symptoms.  The Tribunal goes to the next question - can we describe the experiencing of those symptoms as an injury other than a disease on the basis of the formulation in Kennedy Cleaning?  No.  That, in large part, that conclusion in large part is informed by the medical opinion that various specialists cannot find any explanation.  They cannot find anything that is observable.

FRENCH CJ:   That is an absence of evidence of explanation, is it not?  There is a range of tests.  There is no suggestion, is there, that those tests are exhaustive of all possibilities?  For example, there is a reference to vestibular disease.  That is to do with the inner ear.  But as Justice Nettle might have suggested to you earlier on, one could readily imagine a situation that this is, as it were, a kind of software problem, the way the brain is interpreting signals from outside, and relevant to things like balance and position and so forth.  One cannot imagine that all possible tests have been conducted to enable one to say this is an uncaused event.

MR HANKS:   Can we perhaps rephrase what your Honour has put to me?  The Tribunal has before it a battery of results of tests conducted.  It has that.  Now, let us accept, as your Honour put to me, that there might be another three tests out there that could show a different result.

FRENCH CJ:   Or something which is not susceptible to current medical technology.

MR HANKS:   Yes, indeed, let us assume that too.  But the Tribunal must deal with the evidence that is before it and the evidence, in our submission, was a sufficient basis for the Tribunal to say this man has been tested.  Nothing has been found.  We cannot identify a physiological change and therefore we are at liberty to conclude that there is no injury.  That really is ‑ ‑ ‑

KIEFEL J:   Why is not the vertigo or the giddiness itself the change?  There is a before and after.  Before, no imbalance; then there is imbalance.

MR HANKS:   Well, I think our answer to that is the Tribunal has found on the basis of that medical evidence, which is set out in detail in the Tribunal’s reasons from probably paragraph 22 through to paragraph 35 – it has found on the basis of that evidence that there is no physiological change and, in our submission, that is a finding that the evidence which we have referred to ‑ ‑ ‑

KIEFEL J:   Where does the Tribunal actually say – make a finding that there is positively no physiological change?

MR HANKS:   Could I ask your Honour to go to page 24 in the appeal book and to the bottom of that page, paragraph 61 through to the end of paragraph 63?

KIEFEL J:   What does it mean, “no objective evidence of him suffering from this condition in the period following his vaccinations”?

MR HANKS:   What the Tribunal is referring to there is the lack of any record in the – I will start again – the lack of any entry in the medical records maintained by the Air Force of ‑ ‑ ‑

KIEFEL J:   Except of Dr Tonkin’s report referred to in paragraph 27, you say there is a distinction between medical records and – I see, what Mr May told him later – for the purposes of an interview later on.  But does that mean – this is why I am getting a little confused.  Does that mean that the Tribunal is not accepting that there was the onset following the vaccinations, or is it just observing ‑ ‑ ‑

MR HANKS:   I think what the Tribunal says here is that, although Mr May reported the symptoms at that time, or dating from that time, more accurately, there are two points that are made in this paragraph - no objective evidence other than his report, and no substantial pathology to explain the symptoms which he now experiences.  Now, those are two separate propositions and, in our submission, it is the second of those that is the critical one - the absence of any pathology to explain the current symptoms.  If I could put it this way, that is what provides the foundation for the ultimate conclusion in paragraph 63.  In fact, there are two conclusions in 63.

FRENCH CJ:   No substantial pathology – the stream cannot rise higher than its source.  This is founded on the evidence to which the Tribunal had regard.  Has the Tribunal in any place said that that evidence is exhaustive of all possibilities?

MR HANKS:   No, it has not, your Honour.

FRENCH CJ:   No.

KIEFEL J:   And the question that the Tribunal is addressing in paragraph ‑ ‑ ‑

MR HANKS:   I have a better answer for that.

KIEFEL J:   I am sorry.  The question that the Tribunal appears to be answering for itself – the question it has posed for itself to answer in paragraph 63 ‑ is what can be attributed to the vaccinations.  That is not ‑ ‑ ‑

MR HANKS:   Not entirely, your Honour.

KIEFEL J:   Well, they go on to say:

There is insufficient evidence to establish that he suffered such an injury in the course of his employment.

MR HANKS:   That is right.  So, that is why I say, not entirely.  There are two conclusions expressed in 63:

[no] sudden or identifiable physiological change in the normal functioning of the body or its organs that can be attributed to the vaccinations ‑

So that deals with the “arising out of” concept.

KIEFEL J:   Yes.

MR HANKS:   But then the Tribunal goes on to say:

There is insufficient evidence to establish that he suffered such an injury –

that is, an identifiable physiological change in the normal functioning of the body.

KIEFEL J:   Yet, the vertigo onset during the course of his employment.

MR HANKS:   Suffered.  Well, that might be, your Honour – I am sure your Honour will not think this is disrespectful, but a different person looking at the evidence might come to a different factual conclusion.

KIEFEL J:   I am aware of that.

MR HANKS:   Yes.  My task is to defend the factual conclusion to which the Tribunal came.

GAGELER J:   So, you want us to read the first sentence of paragraph 63 as a conclusion that, on the facts, there was no sudden or identifiable physiological change in the normal functioning of the body or its organs.

MR HANKS:   Full stop.

GAGELER J:   Full stop.

MR HANKS:   Followed by ‑ ‑ ‑

GAGELER J:   But, full stop.

MR HANKS:   Yes, indeed. 

KIEFEL J:   But, Mr Hanks, we are trying to understand just what the reasoning of the Tribunal was.

MR HANKS:   Yes, I appreciate ‑ ‑ ‑

KIEFEL J:   It is not really a question of you defending it so much as assisting us to understand it.

MR HANKS:   I do not think there is a real difference but ‑ ‑ ‑

FRENCH CJ:   Well, the facts are there, it is just what are they?

MR HANKS:   Yes, indeed.

KIEFEL J:   Yes.

MR HANKS:   There is no doubt that the Tribunal understood that the connection between an injury, other than a disease, and employment could be either causal or temporal.  There are many points in its reasons where it articulates that as part of the question that it had to resolve.  When we come to paragraph 63 ‑ ‑ ‑

KIEFEL J:   Does the Tribunal actually make a finding as to when the condition of vertigo onset or when it was first reported, one of the two?

MR HANKS:   My memory, your Honour – I will have to check this – but ‑ ‑ ‑

GORDON J:   This is the point I raised with you at the outset, Mr Hanks, and I think the problem is, you say, at 61 there is a finding that says:

there is no objective evidence of him suffering from –

vertigo, which is the current disability –

in the period following his vaccinations –

I do not actually know at which point the vertigo arises as a matter of finding.  There is a lot of discussion about the earlier conditions which have resolved and the treatment that he gets for those earlier conditions.

MR HANKS:   Can I take your Honour back to page 9 of the appeal book?  This is an account of the evidence given by the respondent, in paragraphs 11 and 12 particularly.  So there is a report in paragraph 11 of symptoms of a particular kind after receiving the vaccination.  Then, paragraph 12:

over the next few months . . . he experienced a feeling of disequilibrium –

Then he –

dates his vestibular problems from this time.  As he feels less well, he feels dizzier.

The Tribunal did accept, as we understand it, that the feelings of vertigo, the reports of vertigo, the experience reported by the respondent of vertigo dated from around that time and has persisted.

NETTLE J:   Mr Hanks, would it be open to draw a distinction on the authorities between physiological damage and purely psychological in this sense?  Whilst it has got to be recognised, in view of what has been said already, that a sudden or recognisable physiological change need not be externally caused in order to qualify as injury other than disease, in the case of something which is purely psychosomatic it would not be regarded as being within the concept of injury other than a disease according to ordinary acceptation unless it were externally caused?

MR HANKS:   Certainly not if it were a somatic condition, one that depended exclusively on the individual’s perception of reaction.

NETTLE J:   There would be nothing in previous authorities which would prevent such a distinction between physiological and psychosomatic disorders being drawn?

MR HANKS:   I believe not, your Honour; I believe not.  Going back to paragraph 63, and I think the earlier paragraph of 61, I again ask some questions about those paragraphs.  Obviously one needs to set them in the context of the Tribunal’s reasons as a whole and perhaps go back to paragraph 52 where two questions are posed by the Tribunal.  Those are rhetorical questions and your Honours can see them:

in order to establish an injury simpliciter, is it sufficient to find that a person suffers symptoms in the course of his or her employment and that the person is not a malingerer, in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms, or a psychiatric disorder to account for them?

Can I just stop there for a moment?  There was psychiatric evidence before the Tribunal and that is set out at the top of page 16 of the appeal book, the reference to Dr Marilyn Moore.  She is the psychiatrist by whom the respondent was assessed, as one can see from the previous page.  So, coming back to paragraph 52, that is the first rhetorical question, and the second one is:

is subjective evidence of symptoms . . . sufficient to establish a non‑disease injury?

That is an awkward way of saying, an injury other than a disease and the Tribunal says no to both of those, and those are critical aspects of the case ‑ the critical aspects of the evidence and the critical aspects of the Tribunal’s findings of fact and they lie behind, we submit, the conclusions which are expressed in paragraph 61 and paragraph 63.

KIEFEL J:   What does the Tribunal mean, Mr Hanks ‑ what is it referring to when it says, “the absence of any physiological evidence”?  What evidence is it saying was necessary to assist in it qualifying as an injury that was not there?  I ask you that for this reason, obviously, because otherwise the Tribunal is directing itself to pathology or diagnosis in the question it is putting for itself in paragraph 52.  So, it is not clear to me what physiological evidence it regards as missing as distinct from the diagnosis or pathological evidence.

MR HANKS:   It must be evidence based on examinations carried out by qualified specialists to see if the vertigo can be identified, its extent can be measured and some physiological basis for it can be found, so, for example, some vestibular dysfunction.  What we have ‑ just to take one example, if you go back to page 15 of the appeal book and to paragraph 28, Professor Fagan’s 2004 report:

I cannot find any evidence of any vestibular or central nervous system abnormality and indeed, the whole matter is very puzzling.

That is part of the absence of physiological evidence.  If I might, without detaining your Honours too long, that theme is repeated in the other reports noted by the Tribunal on that page and the following page.

Now, I want to, if I might, just have a moment to calculate how far we are from the end.  There will be a reward here, I hope.  Now, I am looking at the various propositions that appear on the three‑pager that we handed up.  I should say something briefly about the Full Court’s conclusion that this notion that an injury other than a disease was constituted by a sudden or identifiable change in the normal function of a person’s physiology.  The Full Court criticised that formulation as adding to the language that one finds in the SRC Act, partly.  Then, a second criticism was advanced that it was a formulation derived from cases dealing with legislation where what was compensable was injury by accident.

As to the second of those criticisms, it is very clear that those additional two words, “by accident”, were not part of the legislation considered by the High Court in Zickar or in Kennedy Cleaning and that the formulation that the Court offered in those two cases ‑ and we articulated this, I think, we trust, clearly in our written submissions ‑ the formulation offered by the High Court in those two cases was intended to be a clear description of what was required to establish an injury as distinct from a disease in the context of compensational legislation.

The real difficulty that is present here, and it is one that the Full Court has not grappled with, we submit, is that the SRC Act does draw a sharp distinction between the two concepts.  There must be some way of distinguishing what is a disease or an ailment from what is an injury other than a disease.  It is not enough to say that there has been a departure from the normal functioning of the body.  That is not a sufficient description of an injury because it will also capture many diseases.  So, if I have hypertension, for example, elevated blood pressure, there is a departure from the normal function of the body.  That is not an injury other than a disease; that is plainly a disease, it is an ailment, a disorder.

FRENCH CJ:   So the sudden onset of a set of symptoms does not discharge the onus of what you have to show in order to support characterisation of them or their underlying causes and injury?

MR HANKS:   That is right.  Those symptoms could well be symptoms of a disease rather than symptoms of an injury other than a disease.  In our submission, that is how the Tribunal reasoned here and that is how it came to its conclusion.

May I say something briefly about the third error that was identified by the Full Court?  It arose out of the Tribunal’s reliance on the medical

evidence.  As we understand it, the Full Court took the view that it was an error for the Tribunal to require a diagnosis or a medically ascertained cause and to rely on the medical evidence because it excluded those two.

In our submission, that is not what the Tribunal did; rather, there was medical evidence which did operate to displace, first of all, the thesis that the respondent advanced before the Tribunal, namely, “I got a vaccination and therefore I suffered vertigo.”  But the evidence went beyond that.  It discounted the existence of a distinct physiological change and it was open to the Tribunal to rely on that evidence.  Of course, a fact finder can, in many cases, in the absence of medical evidence do what many of the authorities tell us is permissible post hoc propter hoc.

So there is a sequence of events so, as a matter of common sense, event number one causes event number two, putting aside the potential logical fallacy.  In many cases it will be open to the fact finder to do that and that is what the various cases tell us.  But relying on that inference because of the sequence of events, when the medical evidence denies what is said to be the consequence, the result, of the vaccinations or finds the existence of some diagnosable pathology impossible to locate, it is entirely within the range of permissible fact findings for the Tribunal to say “we are not persuaded.”  That is really the point that we make in paragraphs 20 and 21 of our reply.  If your Honours please, those are the submissions for the appellant.

FRENCH CJ:   Thank you, Mr Hanks.  Yes, Mr McHugh.

MR McHUGH:   May it please the Court? 

FRENCH CJ:   Yes, thank you, Mr McHugh. 

MR McHUGH:   Your Honours, I was proposing to work quite closely from the outline.  Might I take your Honours, first, in the appeal book to page 141 in the notice of appeal, just to point out the issue raised in the first paragraph in the skeleton, which is all three of these grounds will fail if the Full Court was correct in saying the Tribunal erred in requiring a sudden or identifiable physiological change. 

The first one which says there was no error below must fail.  The second one which deals specifically with the issue I just identified must fail.  The third one must also fail because your Honours see it is premised on a standard, namely, that the evidence would be evidence of a sudden or identifiable physiological change.  So, I will focus on that issue.

I want to start with the basic meaning of the word “injury” as it appears in the words “injury other than a disease”.  I will come back shortly to the issue your Honour Justice Gageler raised about how that relates to disease because there may have been a misapprehension, I will be submitting, in the way in which that discussion proceeded.

If I can start with the word “injury”.  I want to take your Honours, first, to Hume Steel because this is the decision behind tab 5 of the joint bundle.  This is the decision which was so important in Zickar and Kennedy Cleaning – the substance of which was effectively reinvigorated in those cases. So I might take your Honours to 75 CLR 242 in the reasons of the Chief Justice on page 252.

What his Honour was dealing with here was the New South Wales Act in which – that is the Act of 1926 – in which there had been a very significant change.  Formerly, the legislation had required that the injury occur “in the course of and arising out of” – or, the other way around – “arising out of and in the course of”.  This Act had made the change from “and” to “or”.  That disjunctive base has opened up the possibility that it was no longer required to establish any kind of causal connection at all.  What Sir John Latham is dealing with in the paragraph in the middle of page 252 is what had been the issue under the earlier cases where there had also been a requirement to show accident.  What his Honour says there is:

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 in the course of the employment all assume that a disease is an injury. 

That is very important to the understanding that comes later.

What are described as idiopathic diseases are outside the English Act . . . The plaintiff’s atheromatous 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 concept of the word “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 excluded from the category of injury.

The point is, as a matter of ordinary language – and this is what happens in the next paragraph - injury relevantly includes disease.

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. 

Just stopping there, my friend’s submissions make quite a bit of that distinction but the very content of the passage here shows that Sir John Latham was saying, for the purposes of this legislation, disease is injury in any event, that is, it is a subset of injury:

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.

“Physiological”, of course, is the adjective from physiology which is the study of the normal or healthy function of the body and functioning is important in what we come to later.  Those words at the top of page 253, I submit, are as far as the Court can or should go in trying to define “injury”.  They are, effectively, as far as the Court has gone.  Courts have been loath to try to straightjacket this concept because it is a basic concept and it has application in many, many different ways, in many, many different areas, and, very importantly, the Act is not predicated on an assumption that medical science is perfect.  There can be all kinds of harms that occur in the course of the workplace for which medical science is unable to give an explanation.

Your Honours would understand there was both a temporal case and a causal case here.  Mr May presented his case in person, and as apparent from the number of authorities cited to the Tribunal and so on, he did quite a good job of it.  But he presented his own case and he ran two limbs, one “in the course of” and one “arising out of”.  The “arising out of” was that there was a cause, being the vaccinations.  In this Court I am only pressing the temporal one; that is all I need to press. 

The problem of what happened in the AAT is that the AAT seems to have required even in the temporal case that there be a causal connection, and the word used was “connection” and sometimes the word used was “attributable”.  I do want to summarise what that case was for your Honours.  Your Honours have already been taken to it but I should just point out the connections because there was an issue earlier about when it was that his injury was suffered.  If your Honours go back to page 9 of the appeal book, which was paragraphs 11 and 12.  So, paragraph 11 is that there is some kind of physiological reaction 30 to 60 minutes later which is:

the roof of his mouth and his tongue began to feel strange and his tongue felt bigger and swollen . . . Over the next few days, he felt nausea and stomach discomfort –

and nausea seems to be an incident of the vertigo that we see later on.  He said –

even though he was still passing the fitness tests because –

he was still very fit.  And then in paragraph 12 ‑

over the next few months . . . he experienced a feeling of disequilibrium . . . As he feels less well, he feels dizzier.

Then, if your Honours come forward to 27 there is the evidence to which, I think, your Honour Justice Kiefel might have been referred about the “vertigo starting on the day after being vaccinated”.  So, that was what his account was in the notes that he had given back in 2003, while he was still employed within the defence force at that stage.  I think that is right – no, he might have left in 2002.  No, I think I have to withdraw that.  So, there is the vertigo starting on the day after vaccination.  Then, if your Honours go to 41, this is a summary of his injury:

he had no pre‑existing medical condition prior to receiving vaccinations . . . He “went from healthy to handicapped, from pilot to disabled” after being vaccinated.

Now, one point to make about these days that he is spending in the period we are dealing with ‑ because he first goes to a doctor on 22 November, so 12 days after the vaccination ‑ one point is he is on the base the whole time.  He is at his place of employment throughout this entire period, they are not allowed to leave.  I cannot point to that in the Tribunal reasoning because no one has referred to it in the Tribunal reasoning but it is just a fact.  He is at the base the whole time.  So everything that happens to him in that period happens in the course of his employment.  So that is the reality of the situation that he is dealing with.

FRENCH CJ:   I think the chronology indicates he was discharged in July 2004.

MR McHUGH:   In July; I am grateful to your Honour.  So that is his case, that he had been healthy and then he was unwell.  And then if your Honours go to 53, that is, paragraph 53, you will see the reference to the symptoms and in the second line of that paragraph:

It is clear from the medical tests that Mr May underwent before he was accepted for entry . . . 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 said 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 ‑

So that is now a 12 –day period and these symptoms, including the dizziness, are reported in that period.  So, my submission is that evidence was accepted plainly by the Tribunal, that he was an honest person.  He was not a malingerer.  The Tribunal was completely satisfied that he was seriously disabled, and if your Honours go back to paragraph 48 in the reasons:

There appears to be no dispute that Mr May is significantly disabled by his condition.

So there is no doubt that it is a serious matter and that was his case.  Then if your Honours come forward to paragraph 58:

Having reviewed the medical evidence, the Tribunal is satisfied that there is a temporal relationship between the vaccinations and the symptoms described by Mr May . . . there is, however, no medical explanation –

for them.  And this seems to have been part of the problem.  The word “explanation” has wrapped up in it an explanation of the cause and that is where the causal link is required.  Then if we go to 59 at the start, there is this very strange sentence at the beginning:

The Tribunal accepts that objective evidence of a swollen tongue or dizziness would be evidence of physiological change.

So, having accepted that Mr May is giving honest evidence of these things and that there is a temporal connection, the Tribunal required some different kind of evidence, and that appears to have been – it is not clear whether this arises under the third ground of appeal or perhaps the first ground of appeal, but the problem there is to the extent that what was being required was a causal connection, then it was just an error.  If your Honours go back to paragraph 48, again at the end of paragraph 48:

there is no medical evidence to establish a connection ‑

That comes immediately after the sentence ‑

The evidence before us indicates that it is this condition that Mr May currently finds most disabling.

So the condition is the injury, and yet immediately – and the word “yet” shows what the problem is here – the Tribunal went into requiring a causal connection even in relation to whether or not there was an injury at all.  I have given your Honours the references in paragraph 11 – I do not need to take your Honours through them but I will certainly invite your Honours to consider them closely, because they really do show that there was that causal requirement.  At the end of 59 that we were at a moment ago:

no objective evidence connecting these conditions with the vaccinations.

So paragraph 59 was dealing with whether or not there was physiological change ‑ that is, the injury ‑ and yet the problem at the end is no evidence connecting them with the vaccinations, which is a causal concept.  So, your Honours, the Full Court was again correct to identify that as an error in this case and that is another reason why round one at least in the appeal must fail.

What we come to finally is ground 3, or what remains of ground 3.  My submission in paragraph 13 of the outline is that the premise of ground 3 is gone, which is that what was necessary was to show a sudden or identifiable physiological change.  Those words are in ground 3 and it is said that there was no evidence meeting that standard.  Now, the ground has got to be wrong to the extent that it requires that standard to be met, if I am right on the argument that I have developed earlier, that is, that sudden or identifiable physiological change is not a requirement of injury, and your Honours do not really need to look into the evidence at all.

But if your Honours are against me on that or were interested in looking at the balance of the ground, the point in paragraph 14 is that the Tribunal itself found that he was significantly disabled and they accepted the temporal connection and they accepted his evidence.  No one suggested he was untruthful.  So the short point is, what more did he need to establish?  Whatever it is that is required, he had established it.

Now, there is a curiosity in this case, which is the Full Court itself made that exact point.  The Full Court at paragraph 210 on appeal book 125 made the point that there was a finding, but the Full Court remitted the matter for the Tribunal.  So tempting as it might be for me to say to your Honours by way of some kind of notice of contention that your Honours should find that there was an injury, I cannot do that because that will not uphold the order which was an order for remitter in a particular way to deal with a whole lot of issues, and so it is not really profitable to go any further looking into that.

The fact is there was a proper evidentiary basis for the case that was made.  The Full Court took an approach to the interpretation of the statute.  It means that its function miscarried very plainly, there was plainly error.  The view taken in the Full Court was that the appropriate thing to do was to remit the matter to the AAT for it to determine the whole question on the facts but according to law and I do not seek to disturb the order that was made in the Full Court, it was the one to which my client contended in the Full Court.

That being so, there is really little point when your Honours are looking further into this, in my submission, but to the extent your Honours are interested in questions of evidence I have given the reference at the very end of paragraph 15 to the principles of proof as discussed in the written submissions that my learned junior prepared before I was retained in the matter.  So, your Honours, those are the submissions for the respondent.  If there is any question on which I could further assist your Honours I would be happy to, but otherwise ‑ ‑ ‑

FRENCH CJ:   Well, Mr McHugh, I think Justice Gageler put the question to you earlier concerning the working of the definition of “injury” and its interaction with the definition of “disease” and “ailment” and it may be that – well, I am sure we would be assisted by any authorities that the parties are able to refer us to to assist us with that.

MR McHUGH:   On that particular question about the words “other than ‑ ‑ ‑

FRENCH CJ:   Yes.

MR McHUGH:   Well, your Honours, would it be appropriate for us to be given some time to see if there is anything ‑ ‑ ‑

FRENCH CJ:   Yes, I think if you could do it within, say, seven days or so.

MR McHUGH:   May it please the Court.  And I take it what your Honours have in mind is not a submission but just a list of cases and page numbers?  Once you open the door there is no stopping barristers.

FRENCH CJ:   Yes, I think that is probably right.

MR McHUGH:   Well, then, a list of cases and the page references that might be relevant, if any.  May it please the Court.

FRENCH CJ:   Thank you.  Yes, Mr Hanks.

MR HANKS:   One might say cheekily that is very prudent given the particular undertaking we have given as to costs.  I wanted to deal with that very question initially, but before I do, the submission that you read the reference to “other than a disease” in paragraph (b) of the definition of “injury” as carving out a disease that has a material contribution to employment ‑ ‑ ‑

FRENCH CJ:   Creates some real problems.

MR HANKS:   ‑ ‑ ‑ and leaving in the floating disease would make a nonsense of the definition.  That is our first submission.  Although the language might be capable of being read in that way, it would really be an absurdity.  There is an authority where there is some discussion of this point.  It might somewhat evade the question, but it is Australian Postal Corporation v Burch, behind tab 8.  As I read page 267, the argument that was raised by the employer – this is an SRC Act case – if you go to about letter E to F, if I read what their Honours said there, the employer argued that ‑ ‑ ‑

KIEFEL J:   I do not think we have the full report, only the front and back pages.

MR HANKS:   That is a pity.  Well, I have taken the precaution of bringing a full copy.  So there is a discussion there, but perhaps I could just explain to you what ‑ ‑ ‑

FRENCH CJ:   It is a short passage I think.  I have it, so perhaps you could just read out the part you want.

MR HANKS:   I will.  The case advanced by the appellant was as follows:

First, in the expression “(other than a disease)” in par (b) of the definition of “injury”, “disease” is not used in the statutorily defined sense (ailment materially contributed to by employment) but in the ordinary sense of an ailment, whether or not connected with employment ‑

So that was the argument, and this is how the argument continued ‑

Mr Burch suffered a disease in that sense; therefore he could not have suffered an injury within the meaning of par (b).

So that was the argument that was put and, indeed, as I understand it, the decision‑maker first considered, well, is this a disease and, if it is, it cannot be an injury, and if it is a disease there has to be a material contribution by the employment.  The Full Court said that is not right.  They referred on page 268 – and I do not know whether your Honours have that.

GAGELER J:   No.

MR HANKS:   No?  Okay, I am sorry.

FRENCH CJ:   Some of us do but it depends upon those who have electronic means.

MR HANKS:   Can I refer your Honours to what it said on paragraph 268, letter B about the policy manifest and the drafting of the Act.

FRENCH CJ:   I think we have all got access to a full text now.  Yes.

MR HANKS:   I refer to:

The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease –

That is obvious.  Then a little further down the page they talk about the practicalities ‑

Thus an employee seeking compensation, like Mr Burch, will naturally enough try first to show that he or she has suffered an injury ‑

That is the practical situation where it would only be necessary to establish that the injury arose in the course of employment.  So, that is what will happen first.  But in the alternative the claimant, like Mr Burch, will seek to show that if what was suffered was not an injury in the ordinary sense then it was a disease in the ordinary sense and that there was a material contribution.  So, their Honours are simply talking about the practicalities and they are resisting the argument that if this is a disease case it can never be an injury case. 

Of course, that was – the facts of that case were that there was an underlying disease which then led to a particular event or occurrence which was claimed to be an injury and, indeed, was found to be an injury.  What the employer was resisting was the idea that you could go on to find that the occurrence arising out of the underlying disease could be an injury, and consistent with Kennedy Cleaning and Zickar and McIntosh, Justice Northrop and the Full Court rejected that, but in the course of doing so they, as I mentioned to your Honours, referred to the policy manifest and the drafting of the Act when one deals with diseases.  If that is the policy that is manifest in the drafting of the Act then the contention that our friends put about how you would construe “other than a disease” in the definition of “injury” makes no sense.  It flies in the face of a clear policy.

Your Honours were taken, if I might go briefly to Kennedy Cleaning and I would ask your Honours to – I will not trouble your Honours with the detail of this but I would ask your Honours to consider what we say in paragraph 51 of our primary submissions about Kennedy Cleaning.  I will give your Honours three page references.  The first is 299 in the joint judgment of the Chief Justice and Justice Kirby.  I would ask your Honours to look at point 2 on the page:

the mere fact that a sudden physiological change is in some way connected with an underlying “disease” process does not, of itself, prevent the classification of such a change as an “injury”.

What their Honours were doing was excluding as a factor the existence of an underlying disease as preventing the finding of an injury in the sense in which their Honours used it in that case.  Justice Gaudron at page 304 at point 8 on the page where her Honour said where the definition of “injury” in the ACT Workers Compensation Act:

when the words of the definition are given their ordinary meaning, they clearly extend to a sudden physiological change, even one that results from a progressive disease.

What the Justices are doing, in our submission, is repelling a particular argument that because there is an underlying disease you cannot have an injury in the sense of a sudden physiological change.  Similarly, Justice McHugh, Justice Gummow and Justice Hayne at page 308, about point 6 on the page, paragraph 68, your Honours can see what is said there:

The circumstance that a sudden physiological change has been caused or provoked by disease does not prevent it from constituting a “physical injury”.

Now, a common factor in these propositions is the existence of that sudden physiological change.  Can I then ask your Honours to look at our written submissions in paragraph 80?  My friend, Mr McHugh, drew attention to perhaps the infelicitous formulation that we had adopted in that paragraph.  Now, quite independent of those criticisms I actually prepared a recasting of that language last night which I will now give your Honours.  What we would prefer to say is that the Full Court was mistaken in finding that the absence of clinically supported diagnosis or objective clinical evidence could support a finding that there had been no injury ‑ could support ‑ not that it demanded that finding but it could support it. 

Finally, I would ask your Honours to consider what we say in paragraphs 11 to 15 of our reply where we develop our submissions on how it was that the Tribunal dealt both with the arising out of, that is, the causal connection, and the arising in the course of the temporal connection, that it was required to do in order to discharge its function of reviewing the decision.

Quite shortly, we say that, as the Tribunal recognised, the respondent contended that he got sick or that he developed vertigo ‑ perhaps I should rephrase that ‑ that he developed vertigo following and because of the vaccinations.  Now, that was essential for the Tribunal to deal with that case and it did.  But that was not the end of the Tribunal’s duty.  It needs to make the correct or preferable decision and if there is another way in which the vertigo could be connected with employment, if it could be said to have arisen as an injury in the course of employment, then the Tribunal was bound to deal with that, and we say in those paragraphs, we explain in those paragraphs, how it was that the Tribunal did deal with that alternative case.  Those are the submissions in reply.

FRENCH CJ:   Thank you, Mr Hanks.  The Court will reserve its decision.  The Court adjourns to 10.15 on Tuesday, 8 March in Canberra.

AT 12.39 PM THE MATTER WAS CONCLUDED